Writer v Ballina Shire Council [1999] NSWCA 215

New South Wales Court of Appeal CITATION : Writer v Ballina Shire Council [1999] NSWCA 215 FILE NUMBER(S) : CA 40520/97 HEARING DATE(S) : 5 March 1999 JUDGMENT DATE : 30 June 1999

PARTIES : Paul Stanley Writer v Ballina Shire Council JUDGMENT OF : Priestley JA at 1; Meagher JA at 1; Handley JA at 1

LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT FILE NUMBER(S) : DDT 48/96 LOWER COURT JUDICIAL OFFICER : Maguire J

COUNSEL : Appellant: M. J. Joseph SC/I. Asuzu Respondent: C.R.R. Hoeben SC SOLICITORS : Appellant: McLaughlin & Riordon. Respondent: Hunt & Hunt CATCHWORDS : Negligence - damage - evidence - reliance on evidence of sole expert witness - failure trial judge to notify parties such reliance - is such reliance and failure to notify a denial of natural justice? - failure trial judge to give adequate reasons. DECISION : Appeal allowed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40520/97 DDT 48/96

PRIESTLEY JA MEAGHER JA HANDLEY JA

Wednesday, 30 June 1999 WRITER v BALLINA SHIRE COUNCIL

DUST DISEASES TRIBUNAL - silicosis - mixed dust fibrosis - whether trial Judge failed to give adequate reasons - whether trial Judge should have informed parties that evidence of particular expert witness would be basis for deciding case The appellant brought proceedings in the Dust Diseases Tribunal claiming damages for injuries suffered through exposure to dust during his employment by the Council. The trial Judge gave judgment for the Council. He held that the case turned on the evidence of one expert witness and gave a brief explanation for excluding the opinions of the other experts. HELD , allowing the appeal: (1) The Judge erred in finding that two expert witnesses called by the plaintiff were not aware of the appellant's relevant medical history. (2) He had not given adequate reasons for finding that he need not consider the evidence of those experts. (3) Since the Judge decided the case in favour of the Council on a basis which had not been put to him in its final submissions, nor litigated during the trial, he was bound to give the parties an opportunity to consider and deal with this view of the case. ORDER (1) Judgment of the Dust Diseases Tribunal set aside. (2) A new trial to be held. (3) Council to pay the appellant's costs of the appeal. (4) Council to have a certificate under the Suitors Fund Act if qualified. (5) Costs of the first trial to be in the discretion of the judge who hears the new trial. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL