BOVIS LEND LEASE PTY LTD v TACON [2003] NSWCA 79

BOVIS LEND LEASE PTY LTD v TACON [2003] NSWCA 79

The order fixing the hearing for 10 April 2003 could not stand because the opponent's economic loss particulars and report were only served late on 7 April 2003 and, despite its best endeavours, the claimant had not been able to obtain a responsive accounting report. The primary judge's reasons did not adequately balance the claimant's substantial fair trial interests against the urgency of the opponent's condition and wish for determination before death, so the interests of justice required appellate intervention.

Jurisdiction
Australia
Judgment Date
09 April 2003
Procedural Posture
Application for Leave to Appeal and Appeal From a Dust Diseases Tribunal Directions Order / Court of Appeal Determination of Leave to Appeal and Appeal
Outcome
Appeal allowed.
Legal Topics
['expedited Hearing' 'fair Trial' 'mesothelioma Claim' 'economic Loss Evidence' 'general Damages Survival Before Death' 'appellate Restraint in Practice and Procedure Decisions']
['civil Procedure' 'dust Diseases Litigation' 'tort' 'conflict of Laws'] ['expedited Hearing' 'fair Trial' 'mesothelioma Claim' 'economic Loss Evidence' 'general Damages Survival Before Death' 'appellate Restraint in Practice and Procedure Decisions']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From a Dust Diseases Tribunal Directions Order / Court of Appeal Determination of Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the Dust Diseases Tribunal order fixing the trial to resume on 10 April 2003.' "Whether the order fixing an urgent hearing gave proper weight to the claimant's ability to test and defend the economic loss claim and other issues." 'Whether appellate intervention was justified notwithstanding restraint in matters of practice and procedure.']

Ratio Decidendi

The order fixing the hearing for 10 April 2003 could not stand because the opponent's economic loss particulars and report were only served late on 7 April 2003 and, despite its best endeavours, the claimant had not been able to obtain a responsive accounting report. The primary judge's reasons did not adequately balance the claimant's substantial fair trial interests against the urgency of the opponent's condition and wish for determination before death, so the interests of justice required appellate intervention.

Court Disposition

Appeal allowed.

Orders

  • ['Grant leave to appeal.' 'Subject to the filing of a notice of appeal uphold the appeal.' 'Set aside the order of Judge Maguire QC made on 7 April 2003 that the trial of the proceedings in the Dust Diseases Tribunal resume at 10 am on 10 April 2003.' "Stand the matter into Judge Maguire's list at 10 am on Monday 14...