THE COMMONWEALTH OF AUSTRALIA v TRANSADELAIDE & ANOR [2001] NSWCA 52

Reported Decision : (2001) 21 NSWCCR 483

New South Wales Court of Appeal

CITATION : THE COMMONWEALTH OF AUSTRALIA v TRANSADELAIDE & ANOR [2001] NSWCA 52 FILE NUMBER(S) : CA 40093/01 HEARING DATE(S) : 7 March 2001 JUDGMENT DATE : 7 March 2001

PARTIES : THE COMMONWEALTH OF AUSTRALIA v TRANSADELAIDE & ANOR JUDGMENT OF : Mason P at 1; Priestley JA at 21; Heydon JA at 22

LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT DDT 326/00 FILE NUMBER(S) : LOWER COURT Armitage J JUDICIAL OFFICER :

Appellant: C Hoeben SC COUNSEL : 1st Respondent: J D Hislop QC/A J Grant 2nd Respondent: M Joseph SC/W Walsh Appellant: Church & Grace SOLICITORS : 1st Respondent: Moray & Agnew 2nd Respondent: Alex Stuart & Associates CATCHWORDS : Dust Diseases Tribunal claim - Crimmins Case - transfer of South Australia's non-metropolitan railways to Commonwealth - inchoate tortious claims passed - mesothelioma later diagnosed (ND) DECISION : Leave to appeal granted. Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40093/00

MASON P PRIESTLEY JA HEYDON JA

Wednesday 7 March 2001

THE COMMONWEALTH OF AUSTRALIA v TRANSADELAIDE & ANOR

JUDGMENT 1 MASON P: In my view this is a proper case for the grant of leave and I would grant leave. 2 The second respondent, whom I shall refer to as the plaintiff, commenced proceedings in the Dust Diseases Tribunal in 2000. He joined the first respondent as the first defendant, (hereafter TransAdelaide), and subsequently the appellant as the second defendant (hereafter the Commonwealth). The plaintiff seeks damages for mesothelioma diagnosed in 1998 which he claims resulted from the negligence of his employer the South Australian Commissioner for Railways. 3 It is pleaded that he was employed between 1956 and 1964 as a fitter at Peterborough in South Australia. TransAdelaide is the ultimate statutory successor to the South Australian Railways Commissioner, tracing through the State Transport Authority established in 1974 (see South Australian Railways Commissioner's Amendment Act 1975 (SA) s6). TransAdelaide is the body corporate in which the State Transport Authority was continued in existence (see Passenger Transport Act 1994 (SA), Sch 2). The Commonwealth is the statutory successor to the liabilities of the Australian National Railways Commission (see Australian National Railways Commission Sale Act 1997 (Cth), Sch 3). 4 On 21 May 1975 the Commonwealth and the State of South Australia entered into an Agreement whereby the Commonwealth would acquire South Australia's non-metropolitan railways. Peterborough is a non-metropolitan area. The Agreement was subject to legislative endorsement. The Commonwealth's acquisition was to be by its Australian National Railways Commission (ANRC), a body corporate established under the Australian Railways Act 1975 (Cth). The Agreement provided for the vesting of items such as land and rolling stock used exclusively for the purposes of non-metropolitan railways in the ANRC on 1 July 1975 (cl 5). Also to be transferred to the ANRC were the "current assets" as apportioned to non-metropolitan railways and services. ANRC was also to accept responsibility for the "current liabilities" so apportioned (see cl 5(1)(c)). The Agreement also provided for the transfer of staff, such transfer to be effected on a date after 1 July 1975 called the "declared date" (see Pt 3). 5 The detailed financial arrangements included provision for the Commonwealth to pay $10,000,000 before 1 July 1975 and other financial adjustments including the Commonwealth taking over various debts and liabilities associated with non-metropolitan railways (see cl19). The Parliament of South Australia approved and gave effect to the Agreement by the Railways (Transfer Agreement) Act 1975 (SA). The Commonwealth did so by the Railways Agreement (South Australia) Act 1975 (Cth). By each enactment the Agreement was approved. The acquisition and vesting of property provided for in the Agreement was consented to and other aspects of the Agreement were addressed. Each enactment dealt with the transfer of liabilities in essentially identical terms. The South Australian enactment stated, in s 7: On and from the declared date the State and each State Authority is, by force of this section, freed and discharged from all liabilities and obligations incurred by it, and not discharged before that date, in connection with the administration, maintenance and operation of the non-metropolitan railways and of any services that are principally or mainly incidental or supplementary to, or are principally or mainly operated in association with, those railways to the extent to which the Commission becomes subject to those liabilities and obligations on and from that date. 6 The Commonwealth enactment stated in s 8: The Commission shall on and after the declared date be subject to all liabilities and obligations incurred by South Australia or a State Authority before that date in connection with the administration, maintenance and operation of the non-metropolitan railways and of any services (including passenger and freight road services) that are principally or mainly incidental or supplementary to, or principally or mainly operated in association with, those railways, to the extent to which those liabilities and obligations are not discharged before that date.