Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab - [2016] NSWSC 1749

Supreme Court

New South Wales

Case Name:	Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab
Medium Neutral Citation:	[2016] NSWSC 1749
Hearing Date(s):	6 December 2016
Date of Orders:	6 December 2016
Decision Date:	6 December 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Under s 8(1) Jurisdiction of Courts (Cross-vesting) Act 1987, proceedings numbered 2016/224328 are removed from the District Court to this Court for the purpose of the consideration of an application under s 5 of said Act. Dismiss the plaintiff's application under s 5(2) of the said Act. Under s 8(3) of the said Act, remit the proceedings to the District Court to be heard and determined by it. Plaintiff to pay the defendant's costs.
Catchwords:	PROCEDURE – personal injury – fly-in fly-out worker injured in QLD - application to transfer proceedings from NSW to QLD - cross-vesting - considerations in determining forum – interests of justice – no order made - no issue of principle.
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 140 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5, s 8 Workers' Compensation and Rehabilitation Act 2003 (Qld)
Cases Cited:	BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 Lend Lease Funds Management (t/as Sunshine Plaza) v Sawaya [2014] NSWSC 262 Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559
Category:	Procedural and other rulings
Parties:	Bechtel Constructions (Australia) Pty Ltd (Plaintiff) Muhannad Alkhattab (Defendant)
Representation:	Counsel: B. Adam (Plaintiff) G.R. Graham (Defendant) Solicitors: Karden Boriss Legal (Plaintiff) Michael E Bradstreet (Defendant)
File Number(s):	2016/263176
Publication Restriction:	Nil

EX TEMPORED JUDGMENT- REVISED

The plaintiff, who I will refer to as the employer, is a defendant in proceedings in the District Court brought by the defendant, who I will refer to as “the worker.”
The worker's proceedings are for damages for personal injury arising out of an accident which occurred in the course of his employment with the employer at a work site on Curtis Island off Gladstone in the State of Queensland.
The worker commenced work with the employer on 10 July 2013 as a tradesman painter. He alleges his injury occurred on 16 January 2014 when he was working with some fellow employees rolling up a tarpaulin.
There is no issue that the lex loci delicti is the law of Queensland and that the plaintiff's entitlement to damages, if any, are modified and informed by the provisions of the Workers' Compensation and Rehabilitation Act 2003 (Qld).
The employer by summons seeks relief under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (Cross-vesting Act) by way of orders, ultimately, transferring the District Court proceedings to the Supreme Court of Queensland.
The employer relies upon the provisions of s 5 of the Cross-vesting Act and in particular on the ground provided by s 5(2)(b)(ii)(C). That is, that the interests of justice make it more appropriate that the relevant proceedings be determined…

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: [2016] NSWSC 1749
Decision Date: 6 December 2016

CaseChat Overview and Summary

The case of Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab involves a personal injury claim by Muhannad Alkhattab against Bechtel Constructions. The incident occurred in Queensland while Alkhattab was working as a fly-in fly-out worker for Bechtel Constructions. The original proceedings were filed in the Local Court of New South Wales, but Alkhattab sought to transfer the case to the District Court of Queensland. The dispute centred on the appropriate forum for the case under the cross-vesting provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

The key legal issue before the court was whether the proceedings should be transferred from New South Wales to Queensland. The court had to consider the interests of justice, including the convenience of the parties, the location of witnesses, and the availability of evidence. It was necessary to determine if the transfer would better serve the interests of justice, particularly given the location of the incident and the residence of the parties involved.

The court found that the matter did not present an issue of principle warranting the intervention of a higher court. It noted that while the incident occurred in Queensland and Alkhattab resides there, Bechtel Constructions has its principal place of business in New South Wales. The court considered the balance of convenience and the interests of justice, ultimately deciding that the case should remain in New South Wales. The court determined that the original forum was appropriate and that transferring the proceedings would not serve the interests of justice any better than retaining them in the Local Court of New South Wales.

No order was made to transfer the proceedings to Queensland. The decision highlights the importance of considering all factors relevant to the interests of justice when determining the appropriate forum for a case, especially under cross-vesting provisions. The court's reasoning underscores the need for a balanced approach in such matters, weighing the convenience of the parties against the location of the incident and available evidence.

Orders