New South Wales Court of Appeal CITATION: Amaca Pty. Ltd. v. State Rail Authority of NSW [2005] NSWCA 343 HEARING DATE(S): 29 September 2005 JUDGMENT DATE: 29 September 2005 JUDGMENT OF: Hodgson JA at 1; Ipp JA at 5 DECISION: Application for leave to appeal dismissed. No order as to costs. CATCHWORDS: ESTOPPEL - Previous decision as to knowledge of State Rail Authority at a particular time - Whether estoppel as to knowledge at a later time - Admissibility of evidence of events at earlier time relevant to question of knowledge LEGISLATION CITED: Dust Diseases Act 1989 s.25B CASES CITED: O'Donel v. The Commissioner of Road Transport and Tramways (NSW) 59 CLR 744 Amaca Pty. Ltd. - claimant PARTIES: State Rail Authority of NSW - opponent FILE NUMBER(S): CA 40046/05 Mr. G.M. Watson SC for claimant COUNSEL: Mr. M. Holmes QC for opponent Phillips Fox, Sydney for claimant SOLICITORS: Moroney Betts, Sydney for opponent LOWER COURT JURISDICTION: Dust Diseases Tribunal of NSW LOWER COURT FILE NUMBER(S): DDT 61 of 1998/2 LOWER COURT JUDICIAL OFFICER: Judge Walker IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40046/05 HODGSON JA IPP JA Thursday 29 September 2005 AMACA PTY. LTD. V. STATE RAIL AUTHORITY OF NSW Judgment 1 HODGSON JA: The application for leave to appeal seeks leave to appeal against an order dismissing the claimant's application to "re-litigate the issue of knowledge of the State Rail Authority decided in Raynor's case". 2 In the course of the reasons given by the primary Judge for dismissing that application, the primary Judge rejected evidence going to events in 1950 relevant to the State Rail Authority's knowledge, and also stated "The ultimate issue in this case is identical to that in Raynor's case namely the apportionment of liability between some three parties". If that statement is taken literally, it is plainly wrong, because the issue in Raynor's case was an apportionment of liability dependent on events occurring up to 1950, whereas the issue in this case is an apportionment of liability dependent on events after 1950. Furthermore, in relation to the issue in this case, the material concerning events in 1950 is plainly relevant, and cannot be excluded because of any considerations arising from issue estoppel or from s.25B of the Dust Diseases Tribunal Act 1989. In my opinion that is shown clearly by the case of O'Donel v. The Commissioner for Road Transport and Tramways (NSW) 59 CLR 744. 3 Mr Holmes for the opponent accepts that the issue in this case is different from that in Raynor's case in the way I have identified, and accepts that the evidence concerning events in 1950 is relevant and admissible on the issue in this case. The case before the tribunal is almost finished, and in the circumstances of Mr Holmes' concession it seems to me that the appropriate course is to refuse leave to appeal in the expectation that the 1950 material will be admitted and the parties will be allowed to argue as to its effect in relation to knowledge of the State Rail Authority at the relevant time. 4 The parties are not in agreement as to whether the matter was put below in the way it has been put in this judgment. It seems clear that investigation of exactly how the matter was put below and determined would involve far more costs than could be justified, so the order that I propose, for the reasons I have given, is that the application for leave to appeal be dismissed and that there be no order as to costs. 5 IPP JA: I agree. ********** 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.