Amaca Pty Ltd v Mortimer - [2023] NSWSC 117

Supreme Court

New South Wales

Medium Neutral Citation: Amaca Pty Ltd v Mortimer [2023] NSWSC 117
Hearing dates: 21 February 2023
Date of orders: 21 February 2023
Decision date: 21 February 2023
Jurisdiction: Common Law
Before: Davies J
Decision:
By consent, the Court orders that:
1. An order pursuant to Section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that proceedings number 2022/182508 pending in the Dust Diseases Tribunal of New South Wales commenced by Martin Graham Mortimer (as Legal Personal Representative of the Estate of the Late Brendan John Mortimer) against Amaca Pty Limited (formerly James Hardie & Coy Limited) be removed from the Dust Diseases Tribunal into the Common Law Division of this Court.
2. An order pursuant to section 5(2)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that the Dust Diseases Tribunal proceedings be transferred to the Supreme Court of Victoria.
3. Each party agrees to bear their own costs incidental to this application.

Catchwords:
PROCEDURE – cross-vesting – where proceedings commenced in Dust Diseases Tribunal of NSW – where lex loci dilecti of tort was in Victoria – where parties agreed that proceedings should be cross-vested to Victoria

Legislation Cited:
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ss 5, 8

Cases Cited:
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Comino v Kremetis [2023] NSWSC 32
Evans Deakin Industries Pty Ltd t/as EDI RAIL v Amaca Pty Limited [2020] NSWSC 149

Texts Cited:
Nil

Category: Principal judgment
Parties: Amaca Pty Ltd (Plaintiff)
Martin Graham Mortimer (Defendant)
Representation:
Counsel:
H Cooper (Plaintiff)
Mentioned by H Cooper (Defendant)
Solicitors:
Mills Oakley (Plaintiff)
Turner Freeman (Defendant)

File Number(s): 2022/368993
Publication restriction: Nil

Judgment

On 22 June 2022, Brendan Donald Mortimer commenced proceedings in the Dust Diseases Tribunal of NSW seeking damages as a result of his having contracted mesothelioma, he alleged, from working at the BP Refinery (Westernport) at Crib Point in Victoria between 1965 and 1985. Mr Mortimer died three days later and the proceedings have been continued by his executor.
The present plaintiff, by summons filed 7 December 2022, seeks under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) to have those proceedings in the Dust Diseases Tribunal removed into this Court under s 8 of the Cross-vesting Act and thereafter to have the proceedings moved either to the Supreme Court of Victoria or the Supreme Court of Queensland pursuant to s 5(2)(b)(ii) of the Cross-vesting Act.
At the time the summons was filed, Mr Mortimer, the executor, had resisted the transfer away from the NSW Dust Diseases Tribunal. Subsequently, agreement has been reached between the present plaintiff and Mr Mortimer that the proceedings should, if removed into this Court, be transferred to the Supreme Court of Victoria. The jurisdiction under the Cross-Vesting Act is not a consent jurisdiction. It is necessary for this Court to have regard to the appropriate principles that have been laid down for removal of proceedings from another court in this State into this Court, and, more particularly, for…

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 Mortimer

Details

AGLC: Amaca Pty Ltd v Mortimer [2023] NSWSC 117
Case: [2023] NSWSC 117
Decision Date: 21 February 2023

CaseChat Overview and Summary

The case of Amaca Pty Ltd v Mortimer involved the company Amaca Pty Ltd, which was sued by Mortimer for alleged breaches of statutory duty and common law negligence related to an occupational disease. The initial proceedings were commenced in the Dust Diseases Tribunal of New South Wales. However, the location of the tort in question was in Victoria, leading to a jurisdictional dispute regarding the appropriate venue for the litigation. The parties ultimately agreed that the proceedings should be transferred, or cross-vested, to the Supreme Court of Victoria.

The central legal issue before the court was whether it was appropriate to exercise the court's discretion to cross-vest the proceedings from New South Wales to Victoria, despite the parties' agreement. This involved assessing the relevance of the lex loci delicti, the law of the place where the tort occurred, in determining the appropriate forum for the litigation. The court also needed to consider the principles of forum non conveniens, which allows a court to decline jurisdiction in favour of a more appropriate forum, even where the parties consent to the jurisdiction.

The court found that it was appropriate to cross-vest the proceedings to Victoria, given the location of the tort and the parties' agreement. The court noted that the lex loci delicti principle supported the transfer, as the alleged tortious conduct occurred in Victoria. Additionally, the court considered the practicalities and efficiency of having the case heard in Victoria, where the parties and relevant witnesses were located. The court's decision was also influenced by the parties' consent to the transfer, which is a significant factor in exercising the court's discretion. The court concluded that the cross-vesting was appropriate and exercised its discretion to transfer the proceedings to the Supreme Court of Victoria.

The final orders of the court were to cross-vest the proceedings from the Dust Diseases Tribunal of New South Wales to the Supreme Court of Victoria. This decision ensured that the litigation would proceed in a forum that was more convenient and appropriate given the location of the alleged tort and the consent of the parties. The transfer allowed the case to be heard in Victoria, where the relevant parties and witnesses were located, thereby facilitating a more efficient and effective resolution of the dispute.

Orders