Seltsam Pty Limited v Ghaleb [2005] NSWCA 208

New South Wales Court of Appeal

Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17/06/05

JUDGMENT DATE: 1 September 2005

JUDGMENT OF: Mason P at 1; Ipp JA at 18; Basten JA at 144

DECISION: (1) Appeal upheld (2) Set aside the judgment and verdict granted by Walker J (3) Case to be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge (4) Respondent to pay the costs of the appeal (5) The judge hearing the new trial should determine the costs of the trial before Walker J (6) As regards the costs of the appeal the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS: PROCEDURAL FAIRNESS - Judge, without stating notice of his intention to do so, determining the case on a basis different to that put forward by the parties throughout the trial - Whether necessary to lead evidence to show that appellant would have conducted its case differently - DAMAGES - Personal injury - Plaintiff with a pre-existing condition - Whether plaintiff's pr-existing condition was a contributing factor to his or her injury - Watts v Rake (1960) 180 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 apply subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 - APPEAL - Decision of Dust Diseases Tribunal - Jurisdiction of appellate court - s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) - Existence of an error "in point of law" - Lack of procedural fairness - Finding of fact in the absence of evidence - Whether appellate court should make order as to constitution of the tribunal upon a re-hearing. D

Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) Commercial Arbitration Act 1984 (NSW), ss 38, 42 Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA) Compensation Court Act 1984 (NSW), s 32 Dust Diseases Tribunal Act (1989), ss 4, 11A, 13(2), 32 (1), 32(2), 43(3)(c) LEGISLATION CITED: Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 54 Income Tax Assessment Act 1936-1969 (Cth), ss 196, 199 Land and Environment Court Act 1979 (NSW), s 57 Supreme Court Act 1970, s 48 Supreme Court Rules 1970 (NSW), Pt 51, r 23 Workers Compensation Act 1987 (NSW), s 10(2)