FROST v AMACA PTY LTD

LOWER COURT Dust Diseases Tribunal JURISDICTION : LOWER COURT DDT 407 of 2002 FILE NUMBER(S) : LOWER COURT Curtis J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40541/2004

MASON P BEAZLEY JA IPP JA

Friday 1 October 2004 Bernard George FROST v AMACA PTY LIMITED

The Dust Diseases Tribunal does not have jurisdiction to state a case for the opinion of the Court of Appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40541/2004

MASON P BEAZLEY JA IPP JA

Friday 1 October 2004 Bernard George FROST v AMACA PTY LIMITED JUDGMENT

1 MASON P: The claimant is suing the opponent in the Dust Diseases Tribunal. 2 The claimant was born in New Zealand and resided there until December 1996 when he moved to Queensland. His claim for damages is based upon exposure to asbestos products while working as a lagger in Cambridge, New Zealand between 1963 and 1966. He is suffering from pleural diseases and asbestosis, the diseases first having been diagnosed in 2000. The parties agree that the relevant episodes of injury occurred in New Zealand with each inhalation of asbestos dust and fibres. 3 The opponent is sued as the manufacturer of the asbestos products that were distributed by it in New Zealand in the 1960s. The parties have agreed that the opponent breached its duty of care to the claimant by manufacturing the product and distributing it in New Zealand, by failing to warn the plaintiff or his employer of its dangerous qualities, and in other respects. 4 The opponent contends that any tort committed by it in respect of the claimant took place in New Zealand and that under New Zealand statute law the claimant cannot sue in negligence to recovery compensatory damages. The opponent submits that New Zealand law is the applicable substantive law, citing James Hardie & Coy Pty Limited v Putt (1998) 43 NSWLR 554, James Hardie Industries Limited v Grigor (1998) 45 NSWLR 20 and James Hardie & Coy Pty Limited v Carley [1999] NSWCA 80. 5 The claimant submits that these decisions are no longer good law in light of Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 particularly at 606[43]. The submission is a bold one, but further comment is inappropriate if this Court lacks jurisdiction to address the question of law at this stage in the proceedings. 6 The issues between the parties were tried in the Tribunal before Judge Curtis in April 2004. Evidence was led about the effect of New Zealand law in relation to the claimant. No decision has been given by the Tribunal. 7 Judge Curtis asked the parties if he had power to state a case to the Court of Appeal. Senior counsel for the claimant submitted that the judge could do so and advanced various submissions along the lines of those repeated in this Court. Counsel for the opponent in the Tribunal formally objected to this course, but was stopped from developing his submissions in that regard. The transcript in the Tribunal at p83 has a jocular ring about it, which probably explains why no complaint is advanced as to denial of procedural fairness. Unfortunately, the judge proceeded without apparently first satisfying himself that he had jurisdiction to state a case to the Court of Appeal (cf NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518 at 521). 8 A stated case was prepared by the parties and signed by Judge Curtis. It was subsequently annexed to the summons filed in this Court. The stated case annexes Agreed Facts and poses three questions: 1. Is the question "Where in substance did this cause of action arise?" a question of law, of fact, or of mixed law and fact?

2. If it be a question of law, where did this plaintiff's cause of action arise?

3. If it be a question of fact, or of mixed law and fact, do the agreed facts permit of a conclusion that the plaintiff's cause of action arose in New South Wales?

9 The parties have filed submissions in relation to the Tribunal's jurisdiction to state a case and as to the substantive issues. Both parties urged us to entertain and decide the stated case. Their submissions overlapped to a degree. We heard argument on the jurisdictional point and reserved our decision. 10 In my view Judge Curtis lacked jurisdiction to state the case and this Court lacks jurisdiction to entertain it. The stated case did not engage this Court's jurisdiction as a superior court with responsibility for the general administration of justice (cf Supreme Court Act 1970, s23), its "prerogative" jurisdiction to grant remedies in the nature of prohibition, mandamus or certiorari (cf Supreme Court Act, s69) or any other head of its jurisdiction. 11 Our appellate jurisdiction with respect to the Tribunal is found in s32 of the Dust Diseases Tribunal Act 1989 (the DDT Act). Relevantly s32(1) provides: A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court.

Such an appeal is assigned to the Court of Appeal (see Supreme Court Act , s48(1)(a)(iia) and (2)(f)). Section 32 of the DDT Act is not invoked in the present matter. It does not apply because there is no decision of the Tribunal with which any party is dissatisfied. 12 Some general remarks are appropriate before I address the particular grounds of jurisdiction invoked by the parties. 13 In Holmes v Angwin (1906) 4 CLR 297 Griffith CJ said (at 304): It is a general rule that when a new Court is created, whatever jurisdiction is conferred upon it, there is no appeal from the decision of that Court unless it is conferred by Statute.

14 This principle applies to the Tribunal. Indeed, its application is reinforced by s13(5)(b) of the DDT Act which provides: A decision of the Tribunal is not liable: (a) … (b) to be questioned or appealed against in any court, except as provided by section 32 of this Act or section 48 of the Supreme Court Act 1970.

15 I have indicated already why s32 of the DDT Act does not avail the parties. The non-availability of s48 of the Supreme Court Act will be explained below. 16 Griffith CJ's dictum in Holmes states the principle from the point of view of the newly-created statutory court or tribunal. 17 A related but broader proposition, equally relevant in the present case, is the principle that appeal is not a common law remedy (see CDJ v VAJ (1998) 197 CLR 172 at 196[95]). 18 An oft-cited authority supporting the last proposition is Attorney-General v Sillem (1863) 2 H & C 432, 159 ER 178 (Exchequer Chamber); (1864) 10 HLC 704, 11 ER 1200 (House of Lords). In the House of Lords, Lord Westbury LC said (at 720-1, 1207-8): The creation of a new right of appeal is plainly an act which requires legislative authority. The Court from which the appeal is given, and the Court to which it is given, must both be bound, and that must be the act of some higher power. It is not competent to either tribunal, or to both collectively, to create any such right. Suppose the Legislature to have given to either tribunal, that is, to the Court of the First Instance, and to the Court of Error or Appeal respectively, the fullest power of regulating its own practice or procedure, such power would not avail for the creation of a new right of appeal, which is in effect a limitation of the jurisdiction of one Court, and an extension of the jurisdiction of another. A power to regulate the practice of a Court does not involve or imply any power to alter the extent or nature of its jurisdiction.

19 A case stated has been described as "a form of consultation with [a] court to obtain an answer on a point of law" (Harris Simon & Co Limited v Manchester City Council [1975] 1 All ER 412 at 317 per Lord Widgery CJ). 20 The Supreme Court Act defines "stated case" to mean (s19): a case stated by the Court in a Division under the rules or under any Act or a case stated under any Act by any other court or by any judge of any other court or other person for the opinion, decision, direction or determination of the Court, and includes: (a) an award in the form of a case stated under section 9 of the Arbitration Act 1902, and (b) a matter referred under section 85 of the Superannuation Act 1916.

21 As this definition indicates, a case may be stated within a court, either to itself or to a higher tier within itself. For example, under s55 of the Common Law Procedure Act 1899 (now repealed) a Judge of the Supreme Court could state questions of law in a special case for the opinion of the Full Court (see also General Legal Procedure Act 1902, s13). The corresponding procedure under the current Supreme Court Rules is for a Judge in a Division to make orders for the separate determination of a question and the statement of a case and the question for decision (Pt 31 r2) and for the proceedings as a whole to be removed into the Court of Appeal under Pt 12 r2. 22 A different category of case stated (or stated case) is where this form of procedure is the means whereby a question may be referred by a court, tribunal or administrative body to a different and superior court. Part 32 Division 1 of the Supreme Court Rules describes such cases as "external stated cases" as regards cases stated outside the Supreme Court for the decision or determination of the Supreme Court. Such matters are commonly known as appeals by case stated, at least where there is a first-instance decision. 23 When the Supreme Court Act was first enacted in 1970, its form differed from that with which it commenced. Significant changes were enacted by the Supreme Court (Amendment) Act 1972 before commencement of the Supreme Court Act on 1 July 1972. 24 Section 48 of the Supreme Court Act now provides: 48 Assignment to the Court of Appeal (1) (a) In this section: specified tribunal means: (i) the Land and Environment Court or a Judge of that Court, (ii) the Industrial Relations Commission or a member of that Commission, (iia) the Dust Diseases Tribunal of New South Wales, (iii) the Government and Related Employees Appeal Tribunal or a member of the Tribunal who is the Senior Chairman, the Acting Senior Chairman or a Chairman of the Tribunal, (iv) the District Court or a Judge of the District Court, (v) the Compensation Court of New South Wales, (vi) a judge or member functioning or purporting to function under any Act giving power to a judge or member, whether as judge or member or as a designated person, (vii) a body of persons having amongst its number a judge or member, being a body functioning or purporting to function under any Act giving power to a body having amongst its number a judge or member, whether as judge or member or as a designated person, or (viii) the Legal Services Tribunal constituted under Part 10 of the Legal Profession Act 1987 (b) In subparagraphs (vi) and (vii) of paragraph (a) judge or member means a judge or member mentioned in any of subparagraphs (i) to (v) inclusive of that paragraph. (2) There are assigned to the Court of Appeal proceedings in the Court: (a) (Repealed) (b) for commanding or otherwise requiring a specified tribunal to perform a public duty, (c) for prohibiting or otherwise restraining a specified tribunal from proceeding in any matter before the tribunal, (d) for commanding or otherwise requiring the removal into the Court of any matter before a specified tribunal, whether for the purpose of quashing or otherwise, but this paragraph has effect subject to subsection (3), (e) for determining, by declaration or otherwise, any matter concerning the powers of a specified tribunal, (f) on an appeal from a specified tribunal, (g) for otherwise reviewing a decision of a specified tribunal, (h) on a case stated by a specified tribunal, (i) for the punishment of contempt of the Court, but only if the contempt consists of: (i) contempt in the face of, or in the hearing of, the Court of Appeal, or (ii) disobedience of a judgment or order of the Court of Appeal, or (iii) breach of an undertaking given to the Court of Appeal, including proceedings in which the Court of Appeal is constituted by a master, (j) for such matters as are necessary or convenient for the discharge of the functions of the Court of Appeal, and (k) for such matters as are prescribed by the rules. (3) Notwithstanding paragraph (d) of subsection (2), the rules may provide for the assignment to the Divisions of the Court of proceedings in the Court for commanding or otherwise requiring the removal into the Court of any matter before a specified tribunal in cases not involving a review of a decision of a specified tribunal. The section has been substantially in this form since 1972. 25 When first enacted in 1970 (in the form originally recommended by the New South Wales Law Reform Commission: see Report on Supreme Court Procedure, LRC 7, 1969 p91), s48 identified provisions that were then in force whereby external stated cases could be brought to the Supreme Court under various enactments. 26 The 1970 form of s48 relevantly provided: Business of the Court of Appeal

48(1) … (2) The powers of the Court or of the Judges collectively in respect of the proceedings mentioned in subsection three of this section - (a) may be exercised by the Court of Appeal …. (3) The proceedings referred to in subsection two of this section are - (a) … (f) cases stated under section 131A of the Justices Act, 1902 ; … (h) proceedings on a stated case under Division Two of Part VIII of the Mining Act, 1906 ; … (l) stated cases under section one hundred and twenty-four of the Stamp Duties Act, 1920 ; (m) stated cases under section seventeen of the Land and Valuation Court Act. 1921 ; (n) appeals and stated cases under subsection four of section thirty-seven of the Workers' Compensation Act, 1926 . … (q) cases stated under section eighteen of the Supreme Court (Summary Jurisdiction) Act, 1967 ….

27 Section 48 was materially altered, before its commencement, into its present structure and form. The change was recommended by the Law Reform Commission in its Second Report on Supreme Court Procedure, LRC 14, 1971. Among the reasons prompting the change to s48 were avoidance of describing the business of the Court of Appeal by reference to the course of practice before the commencement of the Supreme Court Act. Paragraphs 135, 136 and 139 of the Report state: 135 Paragraphs (b), (c) and (d) of the proposed new section 48(2) embrace, as regards specified tribunals, the judgments or orders which will, under section 69(1), take the place of the prerogative writs of mandamus, prohibition and certiorari. Proceedings for such judgments and orders against other tribunals or persons would, under the present proposals, be assigned to the Divisions by the proposed new section 49. 136. Paragraphs (b), (c) and (d) should not be confined to what may now be done by prerogative writ. They would embrace some statutory proceedings, for example, proceedings under section 147 of the District Courts Act, 1912, for a mandatory order to a judge of a district court. The paragraphs may also embrace some proceedings for an injunction. … 139 Paragraphs (f), (g) and (h) will embrace many of the proceedings mentioned in the present section 48(3). 28 The details of the original s48(3) do not matter. But the subsection demonstrates that there were several enactments in 1970-1972 that permitted an application or appeal by way of case stated to the Supreme Court from a court or body outside the Supreme Court. There was therefore ample content to engage the revised (and present) form of s48(2)(h) of the Supreme Court Act from its inception. 29 There was no common law right whereby an inferior court could state a case for the opinion of the Supreme Court. Any jurisdiction to do so depended on statute (cf Badgery v Murphy (1887) 4 WN(NSW) 85 at 86, Atkinson v United States of America Government [1971] AC 197). The general principles discussed above about the need for statutory authority to confer any right of appeal explain why this is so. 30 The claimant submitted, rather faintly, that s48(2)(h) of the Supreme Court Act conferred jurisdiction in the present matter in light of the nomination of the Tribunal as one of the "specified tribunals" mentioned in s48(1). This submission must be rejected in light of the general principles requiring statutory provision of a right of appeal, the presence of several such provisions in 1972 and the drafting history of s48 referred to above. Section 48 is concerned with the distribution of business and the assignment of particular types of matter to the Court of Appeal. That this is its content is confirmed by its location within Part 3, Division 1 of the Supreme Court Act. That Part and Division are titled Distribution of Business - Distribution between Court of Appeal and Divisions. Section 48(2)(h) does not confer the power to state a case on each of the tribunals specified in s48(1)(a). 31 In light of these considerations, the reference to s48 of the Supreme Court Act in s13(5)(b) of the DDT Act cannot be used to confer jurisdiction where none exists otherwise. Section 13(5)(b) does not purport to confer jurisdiction. Its task is to preserve from implied repeal supervisory jurisdiction vested generally in the Supreme Court and allocated to the Court of Appeal by s48(2)(b), (c), (d) and (e) of the Supreme Court Act. 32 Next it was argued that Judge Curtis had power to state a case because the Tribunal had jurisdiction (exclusive even to the Supreme Court, except as provided by ss29 and 32 of the DDT Act) to hear and determine proceedings referred to in ss11 and 12 of the DDT Act. The argument is a complete non sequitur. The matter presently at issue is the Tribunal's power to do something that is the very antithesis of itself hearing and determining the claim for damages in respect of a dust-related condition. 33 Although the historical effect of s10(1) was to transfer to the Tribunal the jurisdiction previously enjoyed by the Supreme Court and the District Court with respect to dust diseases claims, that did not make the Tribunal the Supreme Court or otherwise confer on the Tribunal the powers of the Supreme Court, the Supreme Court Act or the Supreme Court Rules. As I said in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 371[56]: Section 10(1) of the Dust Diseases Tribunal Act gives the tribunal exclusive jurisdiction to "hear and determine" proceedings falling within s11(1) …. But such grant says nothing about any jurisdiction otherwise conferred expressly on the Supreme Court that does not fall within such description. For example, the appellate jurisdiction of this Court that is conferred by s32 of the Dust Diseases Tribunal Act is obviously unaffected by s10(1). 34 The Tribunal is a statutory court of limited jurisdiction and as such its jurisdiction and powers are to be found within the Act that establishes it, supplemented only by such powers necessarily implied from express grants of powers or the Tribunal's character as a court (see Solomons v District Court (NSW) (2002) 211 CLR 119 at 148[70] and authorities cited). 35 The DDT Act confers a specific and limited type of right of appeal to the Supreme Court (s32), one that leaves no room for an alternative appeal by case stated in absence of the Tribunal reaching any decision of its own. 36 The opponent's invocation of s10(4) of the DDT Act takes the matter no further. That subsection provides: In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.

37 Section 10 ensures that the Tribunal enjoys the amplitude of the Supreme Court's jurisdiction to hear and determine proceedings referred to in ss11 and 12 of the DDT Act (see generally Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414). But there is no reason to read s10(4) as going beyond the Tribunal's jurisdiction to make interlocutory and final decisions in any proceedings brought under s11 or referred under s12. Section 10 does not purport to be a source of the jurisdiction of the Court of Appeal, whether appellate or supervisory. 38 Finally, the parties argued that the Dust Diseases Tribunal Rules had drawn down jurisdiction and power both for the Tribunal to state the case and for this Court to entertain it. 39 The power to make rules for the Tribunal is contained in s33 of the DDT Act. Section 33(3) and (5) provide: (3) The Rule Committee may make rules, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed for the purposes of, or in connection with, the exercise by the Tribunal of its jurisdiction or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. … (5) The rules may, with any adaptations specified in the rules, adopt by reference any rules made under the Supreme Court Act 1970 .

40 Rule 2 of the Dust Diseases Tribunal Rules provides: 2 Supreme Court rules to apply (1) Except as otherwise provided by these Rules, the rules of court of the Supreme Court apply to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction in the same way as they apply to proceedings before the Supreme Court and to matters in respect of which that Court has jurisdiction. (2) The rules of court of the Supreme Court apply with necessary modifications and to the extent that they are not inconsistent with the Dust Diseases Tribunal Act 1989 .

41 This rule was said by the parties to have incorporated Pt 31 r2 and Pt 12 r2 of the Supreme Court Rules and thereby provided an alternative jurisdictional path. Alternatively, s10(4) of the DDT Act was said to have achieved the same result by a more direct route. 42 It was submitted that the combination of these incorporated rules meant that the Tribunal could make orders for the separate decision of questions, using the stated case procedure referred to in Pt 31 r2, and (if necessary) then do that which a Judge of the Supreme Court can do under Pt 12 r2, namely order that the proceedings in the Tribunal be removed into the Court of Appeal. These propositions must be rejected. 43 I have no difficulty accepting that the Tribunal has adopted for its own purposes the procedure for separate decision of questions provided for in Pt 31 r2 of the Supreme Court Rules. But the balance of the argument breaks down at several points. 44 Judge Curtis did not purport to invoke Pt 12 r2 of the Supreme Court Rules or to order that the proceedings in the Tribunal be removed into the Court of Appeal. Such an order would in any event have contravened s10(1) of the DDT Act. To have construed the Rules of the Tribunal as permitting such a procedure would also have gone far beyond the scope of r2(1) of the Dust Diseases Tribunal Rules in that it would have purported to affect much more than proceedings "before the Tribunal". Furthermore, the suggested transmogrification of Pt 12 r2 into a tool of appellate review in the hands of the Tribunal would itself have contravened r2(2) of the Tribunal's own Rules because of inconsistency with s10(1) of the DDT Act. The putative incorporation (with adaptation) of the Supreme Court Rules by force of r2 of the Dust Diseases Tribunal Rules would also have exceeded the rule-making power of the Tribunal's Rule Committee, which is limited to facilitating the exercise of the Tribunal's statutory jurisdiction. 45 The parties relied, alternatively, upon Pt 31 of the Supreme Court Rules, as incorporated by the Dust Diseases Tribunal Rules, without resorting to Pt 12 r2 in conjunction. This led them into a blind alley pointing in the wrong direction. 46 Part 31 r2 enables the Supreme Court to make orders for: (a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and (b) the statement of a case and the question for decision. 47 The balance of Division 1 of Pt 32 lays down procedures for the Supreme Court to deal with the separate questions included in the statement of a case. 48 Part 31 is available within the Court of Appeal (cf Pt 51 r3), but its primary use in the Supreme Court occurs in the trial Divisions. It enables a judge to make orders for the separate decision of questions or issues in any proceedings as a prelude to that judge or a fellow trial judge determining the identified questions and making consequential orders (cf Pt 31 r6). 49 The facility of deciding separate questions by using Pt 31 is available to the Tribunal because its Rules have picked up Pt 31. But such incorporation does not change the meaning of the Supreme Court Rules that are picked up (cf Solomons at 135). Rule 2 of the Dust Diseases Tribunal Rules states plainly that the Supreme Court Rules apply "in the same way as they apply to proceedings before the Supreme Court". Within the Supreme Court, Pt 31 is not the source of any jurisdiction of the Court of Appeal with respect to proceedings being heard in the Divisions. The Court of Appeal only becomes involved in such matters if the proceedings are removed into the Court of Appeal under Pt 12 r2 or if there is an appeal by leave from the separate decision itself (Supreme Court Act, s103). This right of appeal is from a decision in proceedings in the Supreme Court. It is not suggested that this appellate jurisdiction of the Court of Appeal is incorporated by reference to the DDT Act. 50 Senior counsel for the opponent submitted that Pt 31 can stand alone as regards the Tribunal and that s48(2)(h) of the Supreme Court Act "comes down and grabs it" (CA Tr p35). This submission is doubly wrong. Part 31, standing alone, does not purport to confer power to state a case for external determination. And s48 cannot "grab it" because the Supreme Court is not a specified tribunal within s48. 51 In short, the various arguments advanced in support of the jurisdiction issue all fall foul of the principles clearly stated by Lord Westbury LC as long ago as 1864 in the passage from Attorney-General v Sillem set out at par 18 above. 52 The summons should be dismissed with no order as to costs. 53 BEAZLEY JA: I agree with Mason P. 54 IPP JA: I agree with Mason P.

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