Alfonso Russo v BHP Billiton Nickel West Pty Limited and Power Step (Australia) Pty Limited

The applicant, Alfonso Russo, filed an application seeking to transfer proceedings from the Supreme Court of New South Wales to the Supreme Court of Western Australia in a matter concerning a dispute over alleged negligence. The respondents, BHP Billiton Nickel West Pty Limited and Power Step (Australia) Pty Limited, opposed the transfer. The dispute centred on the jurisdiction of the courts to transfer the matter, with the primary concern being whether it was in the interests of justice to transfer the matter to the Western Australian court. One respondent was based in Western Australia, and the other in Queensland. The issue also involved the potential for the matter to be transferred again if it were heard in Western Australia, which would then need to be considered by the court.

The court was required to determine whether the transfer application was in the interests of justice, even if the matter might subsequently need to be transferred again. The court noted that the test remained the interests of justice, regardless of any potential further transfers. The court also considered the location of the alleged negligent act and the witnesses, with the injury having occurred in Western Australia but the potential negligence occurring in Queensland or involving conduct in Queensland. The court balanced the principle of lex loci delicti with the location of witnesses in New South Wales and Queensland.

The court found that the application should be dismissed. It reasoned that the interests of justice did not favour transferring the matter to the Western Australian court, given the significant number of witnesses located in New South Wales and Queensland. The court held that the primary consideration was the location of the alleged negligent act, which, in this case, was in Western Australia. However, the court found that the overwhelming number of witnesses in New South Wales and Queensland, and the lack of any real issue as to how the injury occurred, did not support transferring the matter to Western Australia. The application was dismissed on the basis that it was not in the interests of justice to transfer the matter.

No further orders were made by the court.