Wallaby Grip Limited v State Rail Authority of New South Wales & Ors; James Hardie & Company Pty Limited v State Rail Authority of New South Wales & Ors [2001] NSWCA 105

Reported Decision : (2001) 21 NSWCCR 650

New South Wales Court of Appeal

CITATION : Wallaby Grip Limited v State Rail Authority of New South Wales & Ors; James Hardie & Company Pty Limited v State Rail Authority of New South Wales & Ors [2001] NSWCA 105 FILE NUMBER(S) : CA 40540/99; 40546/99 HEARING DATE(S) : 26/02/01 JUDGMENT DATE : 24 April 2001

PARTIES : Wallaby Grip Limited v State Rail Authority of New South Wales & Ampol Refineries (New South Wales) Pty Limited & James Hardie & Company Pty Limited; James Hardie & Company Pty Limited v State Rail Authority of New South Wales & Ampol Refineries (New South Wales) Pty Limited JUDGMENT OF : Priestley JA at 1; Meagher JA at 71; Ipp AJA at 72

LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT DDT 72/96 FILE NUMBER(S) : LOWER COURT Curtis J JUDICIAL OFFICER :

J Hislop QC/D J Russell (Appellant) COUNSEL : D F Jackson QC/B Morris (First Respondent) J McIntyre SC/F Tuscano (Second Respondent) C G Gee QC/G M Watson (Third Respondent/Appellant) Middleton Moore & Bevins (Appellant) SOLICITORS : Dexter Healy (First Respondent) Connery & Partners (Second Respondent) Phillips Fox (Third Respondent/Appellant)) CATCHWORDS : DUST DISEASES - Plaintiff successful at trial agaist first and second respondents - first and second respondents cross claims for contribution against appellants - appeals from Dust Diseases Tribunal - TORT - contribution - s 5 Law Reform (Miscellaneous Provisions) Act 1946 - effect of causation findings upon contributions claims - DAMAGES - inconsistency in method of calculation at trial - EVIDENCE - admission of further evidence on grounds that the case would otherwise be decided on a factual basis known to be false. D Law Reform (Miscellaneous Provisions) Act 1946 LEGISLATION CITED : Supreme Court Act 1970 Dust Diseases Tribunal Act 1989 Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 CASES CITED: Wollongong Corporation v Cowan (1954) 93 CLR 435 James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425 Wallaby Grip Ltd v Peirce [2000] NSWCA 299 DECISION : 1. The appeals succeed to the extent only that the orders made by Curtis J in the actions relating to the cross claims brought by Ampol against James Hardie and Wallaby Grip are set aside. 2. Judgment should be entered for Ampol in the same amounts against James Hardie and Wallaby Grip as entered in the cross claim brought by SRA against those two parties. 3. Ampol has liberty to file, within 14 days of the publication of these reasons, any further submissions it may wish to make, only in respect of, (a) the calculation of the judgment sums to be entered, (b) the Court's power to make orders disposing of the litigation in the way proposed in the reasons of Priestley JA (rather than remitting it to the Dust Diseases Tribunal), (c) costs. 4. The appeal is adjourned to a date to be arranged for the purposes of making further orders.