East West Airlines Limited v Turner

[2010] NSWCA 53

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Amendment of pleadings
3. › Mistake in name of party
4. › Substitution of party
5. › Date from which amendment takes effect
6. › Whether amendment under s 64(4) takes effect from date of filing of statement of claim
7. › Significance of words 'as if'
8. › Civil Procedure Act 2005 (NSW), ss 64(1), 64(4), 65
1. Dust Diseases
2. › Jurisdiction of Dust Diseases Tribunal
3. › Meaning of 'dust'
4. › Whether smoke containing particulate matter constitutes 'dust'
5. › Whether dust-related condition
6. › Dust Diseases Tribunal Act 1989 (NSW), ss 3, 11
1. Appeal
2. › Appeal from Dust Diseases Tribunal
3. › Appeal on point of law only
4. › Whether finding that smoke contained dust was decision in point of law or finding of fact
5. › Whether challenge to assessment of damages constituted appeal on point of law
6. › Dust Diseases Tribunal Act 1989 (NSW), s 32(1)
1. Appeal
2. › Amendment of notice of appeal
3. › Point not taken before Tribunal
4. › Whether further evidence could have been adduced
5. › Whether proposed amendment challenged a decision in point of law
6. › Discretionary considerations

Quick Take

Where there has been a mistake in the name of a party, an amendment under s 64(4) of the Civil Procedure Act 2005 (NSW) takes effect from the date of filing of the statement of claim, not from the date of the amendment order. Section 64(4) is not displaced by UCPR r 6.28. This is significant where the date of commencement of proceedings determines the applicable legislative regime for damages. A finding that a particular substance constitutes 'dust' within the Dust Diseases Tribunal Act 1989 is a finding of fact, not a decision in point of law, and is not appealable under s 32(1).