Fishburn v Electricity Commission of New South Wales & Anor [1999] NSWCA 401

New South Wales Court of Appeal CITATION : Fishburn v Electricity Commission of New South Wales & Anor [1999] NSWCA 401 FILE NUMBER(S) : CA 40991/98 HEARING DATE(S) : 28 September 1999 JUDGMENT DATE : 28 October 1999

PARTIES : Charles Allen Fishburn v Electricity Commission of New South Wales and James Hardie & Coy Pty Ltd JUDGMENT OF : Priestley JA at 1; Meagher JA at 24; Handley JA at 25

LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT FILE NUMBER(S) : DDT 151/93 LOWER COURT JUDICIAL OFFICER : Maguire J

COUNSEL : Appellant - B.M.J. Toomey QC / D.T. Kennedy Respondent - M.F. Holmes QC / T.G.R. Parker Appellant - Turner Freeman, Parramatta SOLICITORS : Respondent 1 - Goldrick Farrell Mullan Respondent 2 - Allen Allen & Hemsley CATCHWORDS : Dust Diseases Tribunal Act; Right of appeal ACTS CITED : Dust Diseases Tribunal Act 1989 Courts Legislation Amendment Act 1998 DECISION : Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40991/98 DDT 151/93

PRIESTLEY JA MEAGHER JA HANDLEY JA

Thursday, 28 October 1999

FISHBURN v ELECTRICITY COMMISSION OF NEW SOUTH WALES & ANOR

DUST DISEASES TRIBUNAL ACT - RIGHT OF APPEAL

Between the date of judgment against the appellant and the hearing of the appeal, the right of appeal was retrospectively changed from a general right of appeal to one relevantly limited to questions of law. The appellant contended the trial judge had erred in law in two respects, (i) that he had failed to deal with a material aspect of the appellant's case, and (ii) that there had been a denial of natural justice in the way the judge had made a finding of fact against the appellant.