East West Airlines Limited v Turner [2010] NSWCA 53

Reported Decision: 78 NSWLR 1 Appeal Outcome: Special leave refused with costs by High Court, 3 September 2010, (S105/2010)

New South Wales Court of Appeal

CITATION: East West Airlines Limited v Turner [2010] NSWCA 53

HEARING DATE(S): 22 March 2010

JUDGMENT DATE: 1 April 2010

JUDGMENT OF: Allsop P at 1; Handley AJA at 1; Hoeben J at 1

DECISION: Appeal dismissed with costs, including the costs of the amendment application.

CATCHWORDS: PRACTICE AND PROCEDURE - amendment to statement of claim - mistake in name of party - application of subsection 64(4) Civil Procedure Act - significance of words "as if" - amendment to take effect from date of filing of statement of claim - DUST DISEASES TRIBUNAL - jurisdiction - smoke in aircraft cabin - whether smoke was dust - whether plaintiff suffering from dust-related condition - APPEAL - appeal from decision in point of law only - whether finding that smoke contained dust was a decision in point of law - whether appeal available in relation to judge's finding as to damages - application to amend notice of appeal - point not taken before Tribunal - whether further evidence could have been adduced - whether proposed amendment challenged a decision in point of law - discretionary issues.

Civil Aviation (Carriers' Liability) Act 1959 (Cth) Civil Procedure Act 2005 Dust Diseases Tribunal Act 1989 LEGISLATION CITED: Income Tax Assessment Act 1936 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998

CATEGORY: Principal judgment

Amaca v Cremer (as Executor of the Estate of the late Winifred Cremer) [2006] NSWCA 164; (2006) 66 NSWLR 400 Attileh v State Rail Authority [2005] NSWCA 64; (2005) 62 NSWLR 439 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Bondi Beach Astra Retirement Village Pty Limited v Hohman [2010] NSWCA 38 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 at 260-261 CASES CITED: East End Dwellings Co Limited v Finsbury Borough Council [1952] AC 109 at 132 Evans Constructions Co Limited v Charrington & Co Limited [1983] QB 810 Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 721 HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 Hope v Bathurst City Council (1980) 144 CLR 1 Lloyd Steel Co (Aust) Pty Limited and Anor v Jade Shipping SA and Anor (1985) 1 NSWLR 212 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Union Fidelity Trustee Company of Australia Ltd v The Commissioner of Taxation (1969) 119 CLR 177 at 187