Amaca Pty Limited v Cecilia Morrison - [2013] NSWSC 1706

Supreme Court

New South Wales

Medium Neutral Citation: Amaca Pty Limited v Cecilia Morrison [2013] NSWSC 1706
Hearing dates: 18 November 2013
Decision date: 19 November 2013
Before: Harrison J
Decision:
1. An order that proceedings no 379 of 2013 in the Dust Diseases Tribunal of NSW be removed into the Common Law Division of the Supreme Court of NSW pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 and, or alternatively, pursuant to Part 9 of the Civil Procedure Act 2005 and Part 44, Division 2 of the Uniform Civil Procedure Rules 2005.
2. An order that the proceedings referred to in paragraph 1 above be transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

Catchwords: CROSS VESTING - Jurisdiction of Courts (Cross-Vesting) Act 1987 - s 5(2)(b)(iii) and s 8(1)(a) - application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to the Supreme Court of Queensland - whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state - whether Queensland is the forum with the most real and substantial connection to the proceedings - whether transfer would cause delay - whether transfer will create additional costs - whether the Dust Diseases Tribunal provides experiential and procedural advantages
Legislation Cited: Dust and Diseases Tribunal Regulation 2007
Jurisdiction of Courts (Cross-Vesting) Act 1987
Cases Cited: B I (Contracting) Pty Limited v Haylock [2005] NSWSC 592
Bale v Seltsam Pty Ltd [1996] HCAtrans 470
British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83
James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357
Joyce Barbara Bale v Seltsam Pty Ltd [1996] QCA 288
Category: Principal judgment
Parties: Amaca Pty Limited (Plaintiff)
Cecilia Maria Morrison as litigation guardian for Lorna Violet Stevens (First Defendant)
Seltsam Pty Limited (Second Defendant)
Representation: Counsel:
J Sheller (Plaintiff)
D J Russell SC with A Giurtalis (First Defendant)
Solicitors:
DLA Piper (Plaintiff)
Maurice Blackburn (First Defendant)
Colin Biggers & Paisley (Second Defendant)

File Number(s): 2013/345902
Publication restriction: Nil

Judgment

HIS HONOUR: By its summons filed on 15 November 2013, Amaca seeks the following orders:

1. An order that proceedings no 379 of 2013 in the Dust Diseases Tribunal of NSW be removed into the Common Law Division of the Supreme Court of NSW pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 and, or alternatively, pursuant to Part 9 of the Civil Procedure Act 2005 and Part 44, Division 2 of the Uniform Civil Procedure Rules 2005.

2. An order that the proceedings referred to in paragraph 1 above be transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

The orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 1706
Decision Date: 19 November 2013

CaseChat Overview and Summary

Amaca Pty Limited, the applicant, sought to have proceedings for compensation pending in the Dust Diseases Tribunal of New South Wales transferred to the Supreme Court of Queensland. The defendant, Cecilia Morrison, opposed the application. The proceedings arose from a claim by Morrison that her husband's death from asbestosis was due to his employment with Amaca. The legal issues involved the interpretation and application of sections 5(2)(b)(iii) and 8(1)(a) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. The court had to determine whether the transfer of proceedings to the Supreme Court of Queensland was in the interests of justice, whether Queensland was the forum with the most real and substantial connection to the proceedings, whether the transfer would cause delay, and whether it would create additional costs. Additionally, the court considered whether the Dust Diseases Tribunal provided experiential and procedural advantages.

The court examined the criteria under section 5(2)(b)(iii) of the Act, which requires that the transfer must be in the interests of justice. It found that the primary consideration was the forum with the most real and substantial connection to the proceedings. The court held that Queensland was the most appropriate forum due to the significant connection between the employment and the location of the dust diseases. The court also considered the potential for delay and additional costs. It found that while the transfer might initially incur some costs, the long-term benefits of having a single jurisdiction for all related proceedings outweighed these considerations. Lastly, the court acknowledged the Dust Diseases Tribunal's specialised experience but concluded that the procedural advantages of having a unified forum for all related litigation justified the transfer.

In light of the above, the court ruled that it was in the interests of justice for the proceedings to be transferred to the Supreme Court of Queensland. The court found that Queensland was indeed the forum with the most real and substantial connection to the proceedings, and while there might be initial costs associated with the transfer, the long-term benefits of streamlined litigation outweighed these concerns. The court also found that the procedural advantages of the Supreme Court, combined with the need for a unified forum for all related litigation, justified the transfer.

The court ordered that the proceedings be removed from the Dust Diseases Tribunal of New South Wales and transferred to the Supreme Court of Queensland. The order also specified that once removed, the proceedings were to be transferred to the Supreme Court of Queensland, with directions for the parties to comply with the necessary procedural steps to effect the transfer.

Orders