B I (Contracting) Pty Limited v Haylock - [2005] NSWSC 592

CITATION:
B I (Contracting) Pty Limited v Haylock [2005] NSWSC 592

HEARING DATE(S): 20/6/05

JUDGMENT DATE :

22 June 2005

JUDGMENT OF:
Bell J at 1

DECISION:
1. Pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act) proceedings number 103 of 2005 pending in the Dust Diseases Tribunal of New South Wales (the DDT proceedings) brought by Melissa Haylock against Amaca Pty Limited, B I (Contracting) Pty Limited and St George Bank Limited be removed into the Common Law Division of this Court; 2. Pursuant to s 5(2)(b)(iii) of the Act the DDT proceedings be transferred to the Supreme Court of South Australia; 3. Dimiss the notice of motion filed on 10 June 2005.

LEGISLATION CITED:
Dust Diseases Tribunal Act 1989
Jurisdiction of Courts (Cross-Vesting) Act 1987
Limitation of Actions Act 1936 (SA)
Supreme Court Act 1970
Supreme Court Rules 1970

CASES CITED:
BHP Billiton Ltd v Schultz [2004] HCA 61; 79 ALJR 348
BHP Billiton Ltd v Utting [2005] NSWSC 260
Ewins v BHP Billiton Limited [2005] VSC 4
ICI Australia Operations v WorkCover (NSW) [2004] NSWCA 55
James Hardie and Co Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Regit (No. 2) Pty Limited v Bendyk [2005] NSWSC 450

PARTIES:
B I (Contracting) Pty Limited (Plaintiff)
Melissa Haylock (1st Defendant)
Amaca Pty Limited (2nd Defendant)
St George Bank Limited (3rd Defendant)

FILE NUMBER(S):
SC 20139/05

COUNSEL:
TGR Parker / R E Steele (Plaintiff)
J Gleeson SC / A Naylor (1st Defendant)
J Harris (3rd Defendant)

SOLICITORS:
Makinson & d'Apice (Plaintiff)
Slater & Gordon (1st Defendant)
Phillips Fox (2nd Defendant)
Hunt & Hunt (3rd Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday, 22 June 2005

20139/05 B I (Contracting) Pty Limited v Haylock
JUDGMENT

1 BELL J: By its summons the plaintiff, B I (Contracting) Pty Limited (BIC) claims orders removing proceedings number 10329 of 2005 pending in the Dust Diseases Tribunal of New South Wales (the DDT proceedings) brought by the first defendant, Melissa Haylock, against Amaca Pty Limited (Amaca) (the first defendant in the DDT proceedings) and the plaintiff (the second defendant in the DDT proceedings) and St George Bank Limited (St George) (the third defendant in those proceedings and in the present proceedings) into the Common Law Division of this Court. The power so to do is conferred by s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act). BIC seeks an order under s 5(2)(b)(iii) of the Act that the DDT proceedings, when and if removed into this Court, be transferred to the Supreme Court of South Australia.

2 BIC’s summons was filed on 5 May 2005. Subsequently, the plaintiff was given leave to file in court a notice of motion that was returnable on 10 June 2005 by which it claimed orders pursuant to s 51(5)(a) of the Supreme Court Act 1970 and…

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: [2005] NSWSC 592
Decision Date: 22 June 2005

CaseChat Overview and Summary

The case of B I (Contracting) Pty Limited v Haylock was heard in the Supreme Court of New South Wales, where the plaintiff, B I (Contracting) Pty Limited, sought to remove proceedings from the Dust Diseases Tribunal of New South Wales and transfer them to the Supreme Court of South Australia. The defendant, Melissa Haylock, is terminally ill with mesothelioma, a condition allegedly caused by exposure to asbestos dust and fibres. The plaintiff sought to remove the proceedings to the Supreme Court of South Australia on the basis that it would be more appropriate given the location of the alleged tort and the residence of the parties. The legal issues involved determining whether the transfer of proceedings was in the interests of justice, and whether the South Australian Court could hear the claim and deliver judgment within the plaintiff's lifetime.

The court found that the transfer of proceedings to the Supreme Court of South Australia was in the interests of justice. The court considered factors such as the place of the tort, the residence of the parties, and the ability of the South Australian Court to hear the claim expeditiously. The court accepted that the South Australian Court would be able to deliver judgment within the plaintiff's lifetime and that the transfer of proceedings would not result in significant additional costs. The court also found that the defendants had made concessions that would address some of the advantages of proceeding in the Dust Diseases Tribunal.

The final orders of the court were to remove the proceedings from the Dust Diseases Tribunal of New South Wales and transfer them to the Supreme Court of South Australia. The court also dismissed the notice of motion filed by the plaintiff seeking to remove the proceedings to the Court of Appeal. The parties were directed to discuss the question of costs.

Orders