Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund [2018] NSWCA 227

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund [2018] NSWCA 227 Hearing dates: 6 August 2018 Decision date: 11 October 2018 Before: Beazley P at [1]; Sackville AJA at [2]; Emmett AJA at [133] Decision: 1. Direct the Estate to file within seven days a summons seeking leave to appeal from the decision of Sackar J made on 4 May 2018. 2. Grant leave to appeal. 3. Appeal allowed. 4. Set aside Order 1 made by the primary Judge on 4 May 2018, being judicial advice given pursuant to s 55 of the James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 (NSW) (Winding Up Act). 5. Direct the parties to file within 14 days agreed short minutes of additional orders giving effect to this judgment, together with brief joint submissions addressing the Court's power to make the orders. 6. In the event that the parties cannot agree, direct the Estate to file and serve within 14 days short minutes of additional orders it proposes, together with brief written submissions in support (including submissions on the Court's power to make the orders proposed). 7. Direct the Trustee to file and serve within a further 14 days alternative short minutes of additional orders it proposes (if any), together with brief written submissions in support. 8. If the parties are in agreement as to the costs orders that should be made in this Court and in the Equity Division proceedings, direct that consent short minutes of order as to costs be filed within 14 days. 9. In the absence of agreement as to costs, direct the parties to file and serve written submissions in compliance with the timetable set out in Orders 6 and 7. Catchwords: TRUSTS – scheme established by three interrelated instruments to compensate victims of asbestos-related diseases – instruments comprise the James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 (NSW) (Winding Up Act), a Trust Deed and a Final Funding Agreement – application by Trustee for judicial advice under s 55 of the Winding Up Act – victim of mesothelioma exposed to asbestos both in Australia and overseas – victim claims damages against a "liable entity" based solely on exposure to asbestos in Australia – whether Trustee is justified under the scheme in paying only the proportion of the damages award attributable to exposure to asbestos in Australia – whether Trustee is obliged to pay the victim's estate the whole of the damages award – whether the definition of "payable liability" in the instruments is satisfied if the victim's claim relates solely to exposure to asbestos in Australia.