Julia Farr Services Incorporated v Hayes [2003] NSWCA 1 (15 January 2003)

Last Updated: 4 February 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Julia Farr Services Incorporated v. Hayes [2003] NSWCA 1

FILE NUMBER(S):

40011/03

HEARING DATE(S): 15 January 2003

JUDGMENT DATE: 15/01/2003

PARTIES:

Julia Farr Services Incorporated - appellant

Ethel Barbara Hayes - respondent

JUDGMENT OF: Hodgson JA

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S): DDT329/02

LOWER COURT JUDICIAL OFFICER: Maguire J

COUNSEL:

Mr. M. Joseph SC with Mr. A. Naylor for claimant/respondent

Mr. A. Andersen (s) for opponent/appellant

SOLICITORS:

Church & Grace, Sydney for appellant

Alex Stuart & Associates, Sydney for respondent

CATCHWORDS:

APPEAL - Expedition - Plaintiff's estate not entitled to future economic loss if plaintiff dies before hearing - Whether extreme expedition justified

LEGISLATION CITED:

DECISION:

1. I order that this appeal be expedited, but at this stage not to the extent of being heard during vacation or to the extent of displacing other cases fixed for hearing. 2. I tentatively allocate 13 and 14 February 2003 for the hearing of the appeal. 3. I order that the appellant compile requisite appeal books on or before 22 January 2003, and file and serve written submissions on or before 28 January 2003. 4. I order that the respondent file and serve written submissions on or before 3 February 2003. 5. I order that the appellant give notice under s.78B of the Judiciary Act on or before 20 January 2003. 6. The costs of this application will be costs in the appeal. 7. I direct that the written submissions need not be included in the Orange Book. 8.I direct the parties to approach the President in the last week of vacation to confirm the hearing dates or to obtain alternative dates.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40011/03

HODGSON JA

Wednesday 15 January 2003

JULIA FARR SERVICES INCORPORATED V. HAYES

Judgment

1 HODGSON JA: I am dealing with an application for expedition of an appeal.

2 The decision appealed against is a decision of the Dust Diseases Tribunal given on 20 December 2002 in which the Tribunal awarded damages of $546,936.52 in favour of the plaintiff. The decision concerned events which occurred in South Australia, and it is a decision reached against a defendant located in South Australia and having no connection with New South Wales.

3 The Tribunal on 20 December 2002 ordered a stay as to $346,936.52 of the judgment conditional upon the defendant, if so advised, filing a Notice of Appeal within ten days and paying the balance of the judgment with the same period. It appears that the defendant was also required to apply for expedition. The defendant in fact did so but was given a return date for that application of 3 February 2003. The plaintiff/respondent wishes to have a greater degree of expedition, and has made this application during vacation to that end.

4 There is evidence that the plaintiff/respondent is extremely ill, and indeed the primary judge found on the balance of probabilities that the plaintiff would die by about the second half of February 2003.

5 Mr. Joseph SC for the plaintiff/respondent submits that a timetable should be set to enable the appeal to be heard in the last week of vacation or as soon as possible thereafter, so that if the result of the appeal is that there must be a further trial, that trial can take place while the plaintiff is still alive. Mr. Joseph submits that this is important both from an evidentiary point of view and also because, if the plaintiff dies before the hearing of her case, her estate will not be able to recover damages for future economic loss, those damages having been assessed by the primary judge at over $100,000.00. It is also submitted that her estate may not be able to recover another head of damage, namely Sullivan v. Gordon damages, which were assessed at $100,000.00.

6 For the defendant/appellant, which is the opponent in this motion, it is submitted that the timetable suggested by the respondent is unreasonably short and that the extreme expedition sought by the plaintiff/respondent is not justified.

7 In my opinion, it is appropriate to grant substantial expedition, but I do not think the extreme expedition sought by the respondent is justified. There are a number of possible outcomes of the appeal, and while in respect of some of them it is conceivable that a further hearing might be required and might be possible while the plaintiff is still able to give evidence, I would not rate the chances of that as high, even if the extreme expedition as sought by the plaintiff is afforded. There is a constitutional point, and it is not possible for me to say that it is without substance; and it is conceivable that the appellant would wish to take that point further, even if it was decided against the appellant by the Court of Appeal.

8 I think there is also some force in the consideration that the legislature has seen fit to make provision as to what elements of damage should survive death and what elements should not, and while I think it is reasonable to grant expedition so that a plaintiff and a plaintiff's estate can have advantage of the most favourable remedy, if that is reasonably possible, I do not think that this consideration requires extreme expedition in such a way as to make it difficult for the parties adequately to prepare an appeal and such as may require the displacing of other cases already set down for appellate hearing.

9 Accordingly I do not propose to make orders that would enable this case to be heard in vacation or immediately following the end of vacation. Looking at the draft list that has been prepared for February 2003, it seems to me that it may be possible, without displacing other cases, to list this case for hearing on 13, and if necessary 14, February 2003, and I would propose to tentatively allocate those dates for the case, but to reserve leave to the parties to approach the President during the last week or vacation or at the beginning of term, either to confirm those dates or to make some other provision for the hearing of the case.

10 Since I have taken that view, I think it is unnecessary to adopt the timetable proposed by the respondent which would have the case ready for hearing in advance of those days. As suggested by the respondent, I will give a direction for the giving of a notice under s.78B of the Judiciary Act.

11 I make the following orders:

1. I order that this appeal be expedited, but at this stage not to the extent of being heard during vacation or to the extent of displacing other cases fixed for hearing.

2. I tentatively allocate 13 and 14 February 2003 for the hearing of the appeal.

3. I order that the appellant compile requisite appeal books on or before 22 January 2003, and file and serve written submissions on or before 28 January 2003.

4. I order that the respondent file and serve written submissions on or before 3 February 2003.

5. I order that the appellant give notice under s.78B of the Judiciary Act on or before 20 January 2003.

6. The costs of this application will be costs in the appeal.

7. I direct that the written submissions need not be included in the Orange Book.

8. I direct the parties to approach the President in the last week of vacation to confirm the hearing dates or to obtain alternative dates.

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LAST UPDATED: 03/02/2003