Amaca Pty Ltd v Tullipan [2014] NSWCA 269

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Amaca Pty Ltd v Tullipan [2014] NSWCA 269 Hearing dates: 6 August 2014 Decision date: 15 August 2014 Before: Basten JA at [1]; Gleeson JA at [48]; Leeming JA at [49] Decision: Orders made 6 August 2014: In matter 2014/197925: Dismiss the summons filed by Amaca Pty Ltd on 4 July 2014 with costs to be costs in the appeal. In matter 2014/179948: (1) With respect to the motion to amend the notice of appeal: (a) grant Amaca Pty Ltd leave to file an amended notice of appeal as contained in the Orange Appeal Book at pp 34-39; (b) dispense with the requirements for service of the amended notice of appeal as filed; (c) order that costs of the motion be costs in the appeal. (2) Dismiss the respondent's motion to strike out the notice of appeal as incompetent, with costs of the motion to be costs in the appeal. (3) Dismiss the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL AND NEW TRIAL - nature of appeal - appeal from decision in "point of law" - plaintiff suffered from terminal lung condition - plaintiff claimed damages against appellant on the basis that lung condition was asbestosis - appellant argued the lung condition was idiopathic pulmonary fibrosis - trial judge held that the appellant's expert witnesses had conceded that the longevity of the disease established that it was probably asbestosis - whether there was an error in point of law in finding that the appellant's expert had made such a concession - whether any error by the trial judge amounted to an error in point of law - Dust Diseases Tribunal Act 1989 (NSW), s 32