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

1. 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.

2. 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.

3. 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 cross-vesting of proceedings to another court in another State.

4. The test for removing proceedings from another court in this State into this Court is not a stringent one by any means. s 8(1)(b)(ii) simply provides that if it appears to this Court that an order should be made so that consideration can be given to whether the relevant proceedings should be transferred to another court, then this Court may make an order under s 8 removing the proceedings into this Court.

5. The more significant inquiry is the appropriate test for the cross-vesting of the proceedings in BHP Billiton Ltd v Schultz (2004) 221 CLR 400. The joint judgment of Gleeson CJ and McHugh and Heydon JJ said at [14]:

In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.

6. In Comino v Kremetis [2023] NSWSC 32, Chen J helpfully set out at [70] various legal principles concerned with the interests of justice for cross-vesting.

7. Other cases, such as Evans Deakin Industries Pty Ltd t/as EDI RAIL v Amaca Pty Limited [2020] NSWSC 149, have stressed the importance of the lex loci delicti in reaching a view about what the interests of justice require for cross-vesting.

8. In the present case, the only workplace where the present defendant sustained injury was in Victoria. The law of Victoria will be the appropriate law for determining the matter, wherever it is heard. There is no apparent connection with New South Wales.

9. Unlike some other matters where other States in the Commonwealth do not have a specific list or court for dust disease matters, the Supreme Court of Victoria has such a list, and no disadvantage is accorded to proceedings in that list compared to what takes place in the Dust Diseases Tribunal of NSW.

10. The other consideration in the present case is the fact that the present defendant resides in Queensland, as had the deceased until his death. However, that seems to me to be a subsidiary consideration, particularly in circumstances where the present defendant has agreed with the plaintiff that the proceedings should be cross-vested to Victoria.

11. In my opinion, it is in the interests of justice that the proceedings be transferred to the Supreme Court of Victoria.

12. Accordingly, I make the orders contained in the short minutes of order which are signed by me and dated today.

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Decision last updated: 21 February 2023