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Arentz v Amaca

Arentz v Amaca

Case [2013] VSC 94 7 March 2013

Jurisdiction

Standing

Compensatory Damages

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. SCI 2012 06716

LEONARD ARENTZ	Plaintiff
v
AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP)	Defendant

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2013
DATE OF RULING:	7 March 2013
CASE MAY BE CITED AS:	Arentz v Amaca
MEDIUM NEUTRAL CITATION:	[2013] VSC 94

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PRACTICE AND PROCEDURE – Cross-vesting legislation – Application by defendant to transfer proceedings to the Supreme Court of New South Wales, with further transfer to Dust Diseases Tribunal proposed thereafter – Plaintiff suffering from mesothelioma – Injury alleged to have occurred when working in NSW – Common law of negligence applicable – Location of witnesses and parties – Plaintiff’s health – “interests of justice” – Application refused – Jurisdiction of Courts (Cross-vesting) Act 1987 s 5(2)(b)(iii)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Over	Maurice Blackburn Lawyers
For the Defendant	Mr M Corrigan	DLA Piper

HER HONOUR:

The application

The plaintiff, Mr Arentz, was diagnosed with mesothelioma in late November 2012, and commenced this proceeding shortly thereafter. Between 1969 and 1973, Mr Arentz worked as a painter in Tumut and Batlow, two towns in southern New South Wales. He claims damages for personal injury sustained as a consequence of exposure to asbestos, asbestos dust and fibre, whilst performing that painting work.

The defendant was at all relevant times a manufacturer, supplier and distributor of asbestos cement building products. It denies liability for Mr Arentz’s injuries.

By summons dated 13 February 2013, Amaca seeks to have the proceeding transferred to the Supreme Court of New South Wales, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987. That section requires the court to consider whether it is “in the interests of justice” that the proceeding be transferred to the NSW court.

In fact, Amaca does not intend that the proceeding would be determined by the NSW court; rather, if transferred, it would seek to have the proceeding further transferred to the NSW Dust Diseases Tribunal (“the tribunal”). There is no dispute that, if transferred to the NSW court, the proceeding would be further transferred to the tribunal.[1]
[1]Which would be the only appropriate NSW jurisdiction, by virtue of s 11(1) of the Dust Diseases Tribunal Act 1989 (NSW).

The principles in relation to an application under s 5(2)(b)(iii) were comprehensively considered by the High Court in the decision in BHP Billiton Limited v Schultz[2], and have been applied in many subsequent decisions, including in this court.
[2](2004) 221 CLR 400.

The High Court affirmed that, in determining whether it is in the interests of justice to order a transfer, the court must be satisfied as to which court is the “natural forum” or the “more appropriate forum”, in the sense that it has the most real and substantial connection with the subject matter of the proceeding. This has been described as involving a “nuts and bolts” exercise.[3]

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 Arentz v Amaca

Details

AGLC: Arentz v Amaca [2013] VSC 94
Case: [2013] VSC 94
Decision Date: 7 March 2013

CaseChat Overview and Summary

Arentz v Amaca is a case that involved an application by the defendant to transfer proceedings from the Federal Circuit and Family Court of Australia to the Supreme Court of New South Wales, with a further proposed transfer to the Dust Diseases Tribunal. The plaintiff in the case, Arentz, was suffering from mesothelioma and sought damages for injuries allegedly sustained while working in New South Wales. The defendant, Amaca, applied for a transfer based on the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987, specifically s 5(2)(b)(iii), arguing that the case should be heard in the Supreme Court due to the common law of negligence applicable to the case, the location of witnesses, and the plaintiff’s health.

The court was required to determine whether the application to transfer the case to the Supreme Court of New South Wales was in the interests of justice. This involved considering several factors, including the location of the witnesses, the plaintiff’s health, and the nature of the legal claims being made. The plaintiff argued that the case should remain in the Federal Circuit and Family Court of Australia due to the complex nature of the evidence and the need for specialised expertise. The defendant, on the other hand, submitted that the transfer was necessary for the efficient administration of justice, given the distribution of the parties and witnesses.

The court found that while the factors considered by the defendant were relevant, they were not determinative in the context of the overall interests of justice. The court highlighted the plaintiff’s serious health condition, which could impact the ability to participate in a trial, and the need for a trial to be conducted in a manner that ensured the plaintiff's right to a fair trial was not compromised. The court also noted the potential for significant delays in transferring the matter and the administrative burden that such a transfer would entail. Consequently, the application to transfer the proceedings was refused.

The court's decision underscores the importance of balancing the practical considerations of case management with the need to ensure that the plaintiff's right to a fair trial is upheld. The final orders of the court were that the proceedings remain in the Federal Circuit and Family Court of Australia, pending further developments in the plaintiff’s health and any subsequent applications that may arise.

Orders