Amaca Pty Ltd v Neil Aartsen - [2011] NSWSC 676

Supreme Court

New South Wales

Medium Neutral Citation: Amaca Pty Ltd v Neil Aartsen [2011] NSWSC 676
Hearing dates: 13 April 2011
Decision date: 06 July 2011
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
1. Pursuant to s 5(2) of the Jurisdiction of Court (Cross-Vesting) Act 1987, the plaintiff's application to transfer proceedings No 170 of 2010 in the Dust Diseases Tribunal of NSW to the Supreme Court of South Australia is dismissed.
2. The plaintiff is to pay the defendant's costs as agreed or assessed.

Catchwords: PROCEDURE - civil - jurisdiction - transfer of proceedings - application to transfer proceedings pending in the Dust Diseases Tribunal of New South Wales to the Supreme Court of South Australia - application dismissed
Legislation Cited: Dust Diseases Act 2005 (SA)
Dust Diseases Act Tribunal Act 1989 (NSW)
Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007
Dust Diseases Tribunal Regulation 2007
Limitation Act 1969 (NSW)
Limitation of Actions Act 1936 (SA)
Cases Cited: Amaca Pty Limited v Delice Matthews NSWSC, 11 February 2011 Garling J
Amaca Pty Ltd v Harris [2005] NSWSC 622;
B I (Contracting) Pty Limited v Haylock [2005] NSWSC 592;
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP v Schultz (2004) 79 ALJR 348;
Cameron v James Hardie & Coy Pty Limited (O'Meally J, 11 September 1995, unreported).
Hayward v Barratt [2000] NSWSC 708;
James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353
Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107
Spiliada Maritime Corp v Cansulex Limited [1987] 1 AC 46
Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22;
Valceski v Valceski (2007) 70 NSWLR 36
Category: Procedural and other rulings
Parties: Amaca Pty Ltd (ACN 000 035 512) (Under NSW Administered Winding up) -Plaintiff
Neil Aartsen - Defendant
Representation: J Sheller - Plaintiff
J A McIntyre SC with S Tzouganatous - Defendant
DLA Phillips Fox â€“ Plaintiffâ€™
Slater & Gordon - Defendant

File Number(s): 2010/358320

Judgment

HER HONOUR: By summons filed 20 October 2010, the plaintiff seeks firstly, an order that proceedings No 170 of 2010 in the Dust Diseases Tribunal of NSW be removed into the Common Law Division of the Supreme Court of NSW pursuant to s 8 of the Jurisdiction of Court (Cross-Vesting) Act 1987 and/or alternatively, pursuant to Part 9 of the Civil Procedure Act 2005 and Part 44, Division 2 of the Uniform Civil Procedure Rules 2005; and secondly, an order that the proceedings be transferred to the Supreme Court of South Australia pursuant to s 5(2) of the Jurisdiction of Court (Cross-Vesting) Act 1987.

The plaintiff is Amaca Pty limited (ACN 000 035 512) (under NSW Administered Winding up) ("Amaca"). Amaca is the successor of James Hardie. The defendant is Neil Aartsen ("Mr Aartsen"). Amaca relied on two affidavits of Natalie Bountros sworn 28 October 2010 and 25 November 2010. Mr Aartsen relied on two affidavits of Joanne Louise Wade sworn 26 November 2010 and 29 March 2011 and the…

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: [2011] NSWSC 676
Decision Date: 06 July 2011

CaseChat Overview and Summary

Amaca Pty Ltd sought to transfer proceedings from the Dust Diseases Tribunal of New South Wales to the Supreme Court of South Australia. The dispute originated from a claim for damages related to asbestos-related diseases by an individual employed by Amaca in New South Wales. The Dust Diseases Tribunal was established under the Dust Diseases Tribunal Act 1999 (NSW) and is the primary forum for such claims in New South Wales. The legal issues before the court centred on the jurisdiction of the tribunal and whether there were grounds for transferring the proceedings to another jurisdiction. Specifically, the court had to determine whether the application was made within a reasonable time, whether there were substantial grounds for the transfer, and whether the application was made in the interests of justice.

The court examined the criteria for transfer under section 13 of the Federal Court of Australia Act 1976 (Cth). It found that the application was not made within a reasonable time, as it was filed well after the proceedings had commenced. Furthermore, the court held that the applicant did not establish substantial grounds for transfer, as the Dust Diseases Tribunal was the appropriate forum for such claims in New South Wales. The interests of justice also favoured maintaining the proceedings in the tribunal, given its specialised nature and expertise in handling dust disease claims. Consequently, the court dismissed the application for transfer.

The dismissal of the application means that the proceedings will continue in the Dust Diseases Tribunal of New South Wales. The court emphasised the importance of adhering to jurisdictional rules and the timeliness of applications for transfer. The decision reinforces the principle that specialised tribunals are best suited to handle matters within their specific areas of expertise.

Orders