Amaca Pty Limited v Mundy - [2008] NSWSC 604

CITATION: AMACA PTY LIMITED v MUNDY & ORS [2008] NSWSC 604

HEARING DATE(S): Thursday 5 June 2008

JUDGMENT DATE :
16 June 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Proceedings commenced in the Dust Diseases Tribunal (NSW) to be transferred to the Supreme Court of South Australia - orders in terms of paragraphs 3 and 4 of the summons filed on 5 June 2008 for the transfer of the proceedings to the Supreme Court of South Australia. Stay in relation to paragraph 4 of the summons for 28 days from 13 June 2008.

CATCHWORDS: Application to cross-vest proceedings in the nature of asbestos litigation by second defendant, as alleged asbestos manufacturer, to the proceedings in the Dust Diseases Tribunal of NSW to the Supreme Court of South Australia – new legislation in South Australia – Dust Diseases Act 2005 (SA) – establishes specialist jurisdiction in the District Court of South Australia – whether order for transfer of proceedings may be made under s.5(2)(b)(iii), Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) – whether the proceedings can be said to be “in interests of justice that the relevant proceeding be determined by the Supreme Court of another State …” when transfer to District Court anticipated – whether Supreme Court of South Australia the “natural” forum – connecting factors – preponderance of factors favour Supreme Court of South Australia – interests of justice – issue of substantial delay – whether material prejudice – proceedings should be transferred.

LEGISLATION CITED: District Court Act 1991 (SA)
Dust Diseases Act 2005 (SA)
Dust Diseases Tribunal Act 1989 (NSW)
Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 (NSW)
Electricity Trust of South Australia Act 1946 (SA)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Service and Execution of Process Act 1912 (Cth)

CATEGORY: Principal judgment

CASES CITED: BHP Billiton Limited v Schultz (2004) 221 CLR 400
Goldamere v Metso Minerals [2007] NSWSC 980
James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357
Pozniak v Smith (1982) 151 CLR 38
Valceski v Valceski [2007] NSWSC 440

PARTIES: AMACA PTY LIMITED v
MUNDY, Mervyn John & ORS

FILE NUMBER(S): SC No 2008/12685

COUNSEL: P: D J Hooke
1D: P C B Semmler SC
2D: G P F Rundle
3D: L Redman

SOLICITORS: P: Ellison Tillyard Callanan
1D: Turner Freeman
2D: Thompson Cooper Lawyers Pty Limited
3D: Makinson & d'Apice

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

MONDAY 16 JUNE 2008

No 12685 of 2008

AMACA PTY LIMITED (UNDER NSW ADMINISTERED WINDING-UP) v MERVYN JOHN MUNDY & ORS
JUDGMENT

1 HIS HONOUR: On 5 June 2008, a summons was filed on behalf of the plaintiff wherein orders were sought that proceedings pending in the Dust Diseases Tribunal of New South Wales (No 167 of 2004) be removed into this Court pursuant to s.8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the “Cross-Vesting Act”) and an order under that Act pursuant to s.5(2)(b)(ii) and/or (iii)…

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: [2008] NSWSC 604
Decision Date: 16 June 2008

CaseChat Overview and Summary

Amaca Pty Limited, as the plaintiff, sought to transfer proceedings against two defendants, one of whom was Mundy, to the Supreme Court of South Australia from the Supreme Court of New South Wales. The dispute involved allegations of asbestos-related diseases, and Mundy, as the second defendant, was an alleged asbestos manufacturer. The plaintiff applied for the transfer of the proceedings under the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), arguing that the South Australian legislation established a specialist jurisdiction in the District Court of South Australia which would better serve the interests of justice.

The court was required to determine whether the application for transfer was permissible under section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). A key issue was whether the proceedings could be considered as being in the interests of justice to be determined by the Supreme Court of another state, given that the transfer was anticipated to the District Court. Additionally, the court needed to assess whether the Supreme Court of South Australia was the "natural" forum for the proceedings, taking into account various connecting factors and the overall interests of justice. The court also had to consider whether there would be any substantial delay or material prejudice if the proceedings were transferred.

The court found that the preponderance of factors favoured transferring the proceedings to the Supreme Court of South Australia. The interests of justice, along with the South Australian legislation that established a specialist jurisdiction in the District Court, were significant factors. The court concluded that the Supreme Court of South Australia was indeed the "natural" forum for these proceedings. The court also determined that there would be no substantial delay or material prejudice if the proceedings were transferred. Consequently, the court ordered the transfer of the proceedings from the Supreme Court of New South Wales to the Supreme Court of South Australia.

Orders