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 412 FILE NUMBER(S) : CA 40540/99; 40546/99 HEARING DATE(S) : 26 February 2001 JUDGMENT DATE : 22 November 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 1; Ipp AJA at 1 LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT DDT 72/96 FILE NUMBER(S) : LOWER COURT Curtis J JUDICIAL OFFICER : Appellant - J.D. Hislop QC / D. J. Russell COUNSEL : First Respondent - D.F. Jackson QC / B. Morris Second Respondent - M. McIntyre SC / F. Tuscano Third Respondent/Appellant - C.G. Gee QC / G.M. Watson Appellant - Middleton Moore & Bevins SOLICITORS : First Respondent - Dexter Healy Second Respondent - Connery & Partners Third Respondent/Appellant - Phillips Fox CATCHWORDS : Decision on formal orders and costs. DECISION : See par 16 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40540/99 CA 40546/99 DDT 72/96 PRIESTLEY JA MEAGHER JA IPP AJA 22 November 2001 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 1 THE COURT: For the reasons explained in par 68 of Priestley JA's reasons, when the court published its judgment in these appeals on 24 April this year liberty was granted to the parties to file further submissions on three matters: (1) the method of calculation of the judgment sums, (2) the Court's power to dispose finally of the appeals, rather than remitting the cases to the Dust Diseases Tribunal and (3) costs. 2 Ampol, the party most affected by the Court's proposed orders, said that it made no submissions in relation to the method of calculation of the judgment sums, did not dispute the Court's power to dispose of the litigation as proposed by Priestley JA and made positive submissions only about costs. 3 Each of the other parties, that is, the appellants WG and Hardie, and the other respondent, Ampol, adopted essentially the same position, so that the only issues left for the Court to decide are those concerning costs. 4 The submissions concerning costs were directed to the costs of the appeals and the costs of the trial. 5 In regard to the appeals, both WG and Hardie agreed that they must pay the costs of SRA. 6 They both submitted however that Ampol should pay their costs of the appeals, because the result of the appeals was that their liability to Ampol was reduced from $38,625 each to $30,900 each. 7 Although on the face of things this submission has some merit, we do not think that, in the circumstances of the case, it should be accepted. The contentions of both appellants in the appeals were that they should not have to pay anything to Ampol. Their arguments in support of this contention failed. They should, in the court's opinion, have to pay the costs of the issues on which they failed. For practical purposes, these issues made up the whole of what was left for the Court to consider at the conclusion of the argument. In the Court's view, this alone is enough to lead to the conclusion that the only fair order in the circumstances is that each appellant should bear Ampol's costs of successfully resisting the arguments put to the Court by the appellants. 8 A further consideration, which reinforces the view already expressed, is that if the results of the appeals by WG and Hardie against both Ampol and SRA are looked at, the appellants are left to pay the same aggregate sum of contribution as had been ordered by Curtis J. The net result of the appeals was that they did not improve their position. 9 The Court is therefore of the view that WG should pay the costs incurred by Ampol in resisting WG's appeal and that Hardie likewise should pay Ampol's costs of the appeal. 10 In reaching this conclusion, the Court has borne in mind the submission for WG and Hardie that the making of costs orders on the appeals should be affected by the fact that Ampol applied, during the course of the hearing of the appeals, for leave to put further evidence before the Court, and that at the time when this application was made, the Court observed that if it were granted, the lateness of the application and the fact that it had to be made at all, could have a bearing on costs. 11 This application was dealt with in pars 36 to 44 of Priestley JA's reasons. The Court's view is that the merits of the application, bearing in mind the way the cases had been conducted at trial, were wholly with Ampol, and do not warrant making any costs orders in Ampol's favour less than those already indicated. 12 As to the costs of the trials, both WG and Hardie argued that they should be left to Curtis J to decide. In its written submission Hardie, supported by WG, said that the costs of the trials "were specifically reserved following disquiet expressed by the trial judge as to inefficiencies (not caused by James Hardie) in the conduct of the trial". It was then asserted that Hardie had specific submissions it wished to put to the trial judge. 13 Although it seems obvious that SRA and Ampol should each have their general costs of the trials against WG and Hardie, there were certain features of the cases which suggest that the trial judge may have had it in mind to make special orders in regard to some aspects of the costs. The way in which evidence of Ampol's employment of the plaintiff was presented could possibly be one of these. Although the Court has, one way or another, looked at most of the transcript, the case was a very long one and we think the trial judge would be in a better position to decide whether any special costs orders should be made in favour of the appellants and in reduction of the general costs orders which it seems almost inevitable must be made against them. 14 We therefore come to no conclusion in regard to the costs of the trial, and leave it to the parties, if they cannot agree among themselves, to take questions of trial costs back before the trial judge. 15 This Court's orders are made on the following basis, adopting the terminology of the trial judge: (a) in SRA's claim against WG and Hardie, one fifth of the liability is apportioned to SRA and two fifths to each of WG and Hardie; (b) in Ampol's claim against WG and Hardie one fifth of the liability is apportioned to Ampol and two fifths to each of WG and Hardie. 16 This Court orders: 1 (a) The judgments for Ampol against WG and against Hardie at first instance are set aside. (b) In their place there is substituted judgment for Ampol against WG in the sum of $30,900 and against Hardie in the sum of $30,900; this judgment is to operate from the date of operation of the judgment it replaces. (c) WG and Hardie are to pay Ampol's costs of the appeals brought against it by WG and Hardie. 2. (a) The judgments for SRA against WG and against Hardie at first instance are set aside. (b) In their place is substituted judgment for SRA against WG in the sum of $30,900 and against Hardie in the sum of $30,900; this judgment is to operate from the date of operation of the judgment it replaces. (c) WG and Hardie are to pay SRA's costs of the appeals brought against it by WG and Hardie. 3. The Court expresses no opinion about the costs of the trials and confirms the liberty to apply granted by Curtis J to any of the parties to apply to him in respect of costs orders for the trials. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.