Amaca Pty. Limited v. Banton [2007] NSWCA 336

Amaca Pty. Limited v. Banton [2007] NSWCA 336

Leave to appeal was refused because the claimant did not show a sufficient basis to appeal from the dismissal of its Notice of Motion. Exemplary damages may, in appropriate cases, be awarded as both provisional damages under s.11A(2)(a) and further damages under s.11A(2)(b). Although the 26 July 2000 consent judgment caused the opponent's earlier claim for provisional damages, including aggravated and exemplary damages relating to the original conditions and conduct up to judgment, to merge in that judgment, it did not categorically preclude any further exemplary damages connected with the later development of mesothelioma or sufficiently connected later conduct.

Jurisdiction
Australia
Judgment Date
20 November 2007
Procedural Posture
Application for Leave to Appeal / Court of Appeal on Application for Leave to Appeal From Orders of the Dust Diseases Tribunal Dismissing a Notice of Motion to Strike Out Claims for Exemplary and Aggravated Damages and for Separate Determination
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['provisional Damages' 'further Damages Under S.11 a of the Dust Diseases Tribunal Act 1989' 'exemplary Damages' 'aggravated Damages' 'merger in Judgment']
['damages' 'dust Diseases' 'statutory Interpretation'] ['provisional Damages' 'further Damages Under S.11 a of the Dust Diseases Tribunal Act 1989' 'exemplary Damages' 'aggravated Damages' 'merger in Judgment']

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Procedural Posture

Application for Leave to Appeal / Court of Appeal on Application for Leave to Appeal From Orders of the Dust Diseases Tribunal Dismissing a Notice of Motion to Strike Out Claims for Exemplary and Aggravated Damages and for Separate Determination

Legal Issues

  1. 1 ['Whether exemplary damages may be sought as further damages under s.11A(2)(b) of the Dust Diseases Tribunal Act 1989 and rule 5 of the Dust Diseases Tribunal Rules.' "Whether the opponent's earlier claim for provisional damages, including aggravated and exemplary damages, merged in the consent judgment of 26 July 2000." 'Whether later conduct by the claimant, or the later development of mesothelioma, could support a further claim for exemplary damages.']

Ratio Decidendi

Leave to appeal was refused because the claimant did not show a sufficient basis to appeal from the dismissal of its Notice of Motion. Exemplary damages may, in appropriate cases, be awarded as both provisional damages under s.11A(2)(a) and further damages under s.11A(2)(b). Although the 26 July 2000 consent judgment caused the opponent's earlier claim for provisional damages, including aggravated and exemplary damages relating to the original conditions and conduct up to judgment, to merge in that judgment, it did not categorically preclude any further exemplary damages connected with the later development of mesothelioma or sufficiently connected later conduct.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Application for leave to appeal dismissed with costs.']