Dasreef Pty Limited v Hawchar [2010] NSWCA 154

New South Wales Court of Appeal

CITATION: Dasreef Pty Limited v Hawchar [2010] NSWCA 154

HEARING DATE(S): 5 March 2010

JUDGMENT DATE: 6 July 2010

JUDGMENT OF: Allsop P at 1; Basten JA at 100; Campbell JA at 101

1. Allow the appeal in part. DECISION: 2. Set aside orders 5, 6 and 7 made by the Dust Diseases Tribunal on 15 July 2009 and contained in the form of orders signed by the Registrar of the Dust Diseases Tribunal on 25 September 2009. 3. Remit the question of costs to the Dust Diseases Tribunal for reconsideration. 4. The parties file submissions of no more than two pages on costs of the appeal within 14 days.

CATCHWORDS: APPEAL– statutory appeal – Dust Diseases Tribunal Act 1989 (NSW) s 32 – right of appeal to Supreme Court on point of law - EVIDENCE – admissibility – expert opinion – whether witness had relevant expertise to measure dust concentration of work environment – qualification as to the difficulty of precise measurement did not destroy validity of opinion - EVIDENCE – weight or sufficiency – uncontradicted evidence – legitimacy of drawing conclusion that evidence of uncalled witness would not have been of assistance to that party's case - DUST DISEASES TRIBUNAL – legitimacy of judge drawing on experience and position in specialised court - COSTS – indemnity costs – offers of compromise – offers more favourable than judgment obtained – whether exceptional case and necessary for avoidance of substantial injustice - COSTS – assessment – capped costs

Administrative Decisions Tribunal Act 1997 (NSW) s 119(1A)(c) Civil Procedure Act 2005 (NSW) s 60 Dust Diseases Tribunal Act 1989 (NSW) ss 11A, 32 Dust Diseases Tribunal Regulations 2007 LEGISLATION CITED: Occupational Health and Safety Act 2000 (NSW) Supreme Court Act 1970 (NSW) ss 75A, 101(2)(c) Uniform Civil Procedure Rules, r 42.40 (1) Workers Compensation Act 1987 (NSW) Workers' Compensation (Dust Diseases) Act 1942 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)