Legal Research
Cases
Amaca Pty Ltd v Harris

Amaca Pty Ltd v Harris

Case [2005] NSWSC 622 28 June 2005

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

CITATION:
AMACA PTY. LIMITED v. HARRIS [2005] NSWSC 622

HEARING DATE(S): Monday 20 June 2005

JUDGMENT DATE :

28 June 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Hall J at 1

DECISION:
Application dismissed. The applicant is to pay the defendant's costs of the motion.

LEGISLATION CITED:
Jurisdiction of Courts (Cross-Vesting) Act 1987
Dust Diseases Tribunal Act 1989

CASES CITED:
Bankinvest AG v. Seabrook (1988) 14 NSWLR 711
Ewins v. BHP Billiton Limited [2005] VSC 4
BHP Billiton Limited v. Schultz (2004) 79 ALJR 348
James Hardie & Co. Pty. Limited v. Barry (2000) 50 NSWLR 357
Spiliada Maritime Corporation v. Cansulex Limited (1987) AC 460
Bourke v. State Bank of NSW (1988) 22 FCR 378
B I Contracting Pty. Limited v. Haylock [2005] NSWSC 592
BHP v. Zunic [2001] NSWSC 561
James Hardie & Co. Pty. Limited v. Hall, as Administrator ad litem of the Estate of Putt (deceased) (1988) BC 9802005 NSWCA

PARTIES:
AMACA PTY. LIMITED
v. HARRIS, Bruce John

FILE NUMBER(S):
SC No. 11927 of 2005

COUNSEL:
Plaintiff: J. Sheller
Defendant: J.L. Sharpe

SOLICITORS:
Plaintiff: McInnes Wilson
Defendant: Turner Freeman

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

TUESDAY 28 JUNE 2005

No. 11927 of 2005

AMACA PTY. LIMITED v. BRUCE JOHN HARRIS

JUDGMENT

1 HIS HONOUR: The plaintiff, by its summons filed on 12 May 2005 seeks orders pursuant to s.8 and s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 in respect of proceedings brought in the Dust Diseases Tribunal of New South Wales by the defendant, Bruce John Harris. The order pursuant to s.5(2)(b)(iii) seeks an order that the proceedings in the Dust Diseases Tribunal be transferred to the Supreme Court of Queensland.

2 The summons is supported by the affidavits of Mark Vincent Victorsen, solicitor of Brisbane, sworn 20 May 2005 and 15 June 2005 and the affidavit of Emma Kate Sheehan, solicitor, sworn 17 June 2005.

3 Mr. Harris who was born on 23 November 1948, worked in the building industry in the Rockhampton area. He commenced to experience symptoms in February 2005 and was examined on 28 March 2005 by Dr. Andrew Scott, consultant thoracic physician. He underwent a lung biopsy procedure on 29 March and clinical and histological diagnosis confirmed that he was suffering form malignant mesothelioma.

4 The proceedings before the Dust Diseases Tribunal were commenced by way of statement of claim filed on 15 April 2005 and served that day on the defendant.

5 Mr. Harris, as plaintiff, claims common law damages from the plaintiff in these proceedings, the defendant before the Tribunal, in negligence arising out of his alleged exposure to a range of asbestos products manufactured by the plaintiff (Amaca) to the present proceedings.

6 The plaintiff left school in about March 1964 and then undertook an apprenticeship with a Rockhampton based builder until about 1973. It is alleged that in that period he worked extensively with James Hardie asbestos cement fibro sheeting.

7 In 1973, Mr.…

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.

Continue reading Amaca Pty Ltd v Harris

Details

AGLC: Amaca Pty Ltd v Harris [2005] NSWSC 622
Case: [2005] NSWSC 622
Decision Date: 28 June 2005

CaseChat Overview and Summary

Amaca Pty Ltd, an asbestos manufacturer, sought to cross-vest proceedings brought against it by Bruce John Harris in the Dust Diseases Tribunal of New South Wales to the Supreme Court of Queensland. Harris, a resident of Queensland, alleged that his exposure to asbestos products manufactured by Amaca resulted in his diagnosis of malignant mesothelioma. Amaca argued that the case should be heard in Queensland due to Harris' residence and the alleged location of the tort. Harris opposed the application, emphasizing his deteriorating health and the imminent hearing date set by the Tribunal.

The court considered various factors, including the place of the tort, the residence of the parties, the procedural and evidentiary advantages of the Dust Diseases Tribunal, and Harris' life expectancy. The court found that while Harris' health was a significant factor, other considerations, such as the imminent hearing date set by the Tribunal and the absence of strong countervailing factors, weighed in favor of allowing the proceedings to continue in the Tribunal. The court concluded that expeditious resolution of the case was in the interests of justice and dismissed the application.

Orders