Amaca Pty Ltd v Moir

[2016] NSWSC 35

Supreme Court

New South Wales

Medium Neutral Citation:

Amaca Pty Ltd v Moir [2016] NSWSC 35

Hearing dates:

8 February 2016

Date of orders:

08 February 2016

Decision date:

08 February 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. An order pursuant to section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that proceedings number 306 of 2015 pending in the Dust Diseases Tribunal of New South Wales commenced by Ronald James Moir against Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) Amaba Pty Limited (formerly Hardie Ferodo Pty Limited) (the Second Plaintiff) and FMP Group (Australia) Pty Limited (formerly Bendix Mintex Pty Limited) (the Second Defendant) be removed from the Dust Diseases Tribunal into the Common Law Division of this Court.

 

2. An order pursuant to section 5(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that the Dust Diseases Tribunal proceedings be transferred to the Supreme Court of Queensland.

 

3. That Ronald Moir's costs of the proceedings in the Dust Diseases Tribunal of New South Wales, case number 306 of 2015 be his costs in the cause in the proceedings in the Supreme Court of Queensland (or any other Queensland court where the proceedings are conducted).

4. The Ronald Moir's costs in the Dust Diseases Tribunal of New South Wales, case number 306 of 2015, to be determined in accordance with the relevant provision of the Legal Profession Act 2004 (NSW); and
5. No order as to costs in respect of these proceedings (2015/377221).

Catchwords:

PROCEDURE – cross-vesting - proceedings commenced in New South Wales Dust Diseases Tribunal – application to transfer to Queensland- natural forum – plaintiff domiciled in Queensland – place of tort was Queensland – matter cross-vested

Legislation Cited:

Jurisdiction of Courts (Cross-Vesting) Act 1987
Legal Profession Act 2004 (NSW)

Cases Cited:

BHP v Schultz [2004] HCA 61;(2004) 79 ALJR 348,
James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357

Category:

Principal judgment

Parties:

Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) (First Plaintiff)
Amaba Pty Limited (formerly Hardie Ferodo & Coy Pty Limited) (Second Plaintiff)
Ronald James Moir (First Defendant)
FMP Group (Australia) Pty Limited (formerly
Bendix Mintex Pty Limited) Second Defendant)

Representation:

Counsel:
J Sheller (Plaintiffs)
K Byrnes (First Defendant)
Mentioned by J Sheller (Second Defendant)

  Solicitors:
Holman Webb Lawyers Brisbane (Plaintiffs)
Turner Freeman (First Defendant)
Wotton Kearney (Second Defendant)

File Number(s):

2015/377221

Judgment

1. This is an application by Amaca to have proceedings which have been commenced against it and two other Defendants in the Dust Diseases Tribunal of New South Wales removed into this Court and thereafter transferred to the Supreme Court of Queensland under ss eight and five respectively of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). An order can be made under s 8 removing proceedings from a court other than this Court or a tribunal into this Court if an order should be made transferring those proceedings thereafter to a Supreme Court of another State or another superior Federal Court.

2. Section 5(2)(b)(ii)C and s 5(2)(b)(2)(iii) provide for the transfer from this Court to another State Supreme Court or a superior Federal Court if it is in the interests of justice that the proceedings be determined in the other court. In the present case, the desire is to transfer the proceedings to the Supreme Court of Queensland. The basis for that is that Queensland is said to be the natural forum for the hearing of the proceedings commenced by the worker in the Dust Diseases Tribunal.

3. The worker is domiciled in Queensland and significantly his incurring of the disease was sustained by him at all times when he was working in Queensland. He worked between 1980 and 1990 as a repairman storeman and foreman at the Ford Motor Company at Eagle Farm in Brisbane. The allegation is that, during that period of employment, and particularly until 1983, he was exposed to asbestos used at that plant.

4. The further evidence is that all of the doctors who have examined the Plaintiff are also located in Queensland. Indeed, the evidence is such that there does not appear to be any particular connection for the proceedings with New South Wales at all. The proceedings were no doubt commenced in New South Wales because of the well-known advantages, both from the point of view of expedition and the admissibility of evidence, that are available in the Dust Diseases Tribunal of New South Wales. The speed with which the matter can be dealt with is relevant to the interests of justice: BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 79 ALJR 348 at [15].

5. There is evidence before me of another case involving a worker who similarly suffered and commenced his proceedings in the Dust Diseases Tribunal of New South Wales and which were transferred by Harrison J of this Court to the Supreme Court of Queensland because that jurisdiction was the natural forum in that case. The evidence tends to suggest that the Supreme Court of Queensland has procedures to enable matters to be disposed of in a most expeditious manner as in the Dust Diseases Tribunal of New South Wales.

6. I am informed that the worker's condition is stable at the present time. The worker who was named as the First Defendant in these proceedings does not consent but does not actively oppose the transfer. The Second Defendant consents to the transfer.

7. Nothing in particular is raised to suggest that there is any reason why the proceedings should remain in the Dust Diseases Tribunal. The natural forum for the proceedings is Queensland. That is particularly so because the place of the tort is Queensland: James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [7], but the other matters mentioned strengthen that conclusion. See also Kirby J in Schultz at [163] – [165].

8. In those circumstances, the natural forum being Queensland, it is in the interests of justice that the proceedings should be removed from the Dust Diseases Tribunal into this Court and thereafter cross-vested to the Supreme Court of Queensland.

9. Accordingly, I make orders in terms of paragraphs one to four of short minutes of order, and I note that there is to be no order as to costs in respect of these proceedings with the intent that each party will bear their own costs.

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Decision last updated: 08 February 2016