BHP Billiton Ltd v Schultz

The High Court of Australia considered an appeal by BHP Billiton Limited (BHP) against a decision of the Supreme Court of New South Wales. The dispute concerned proceedings commenced by Mr. Schultz in the Dust Diseases Tribunal of New South Wales (DDT) alleging asbestos-related injury due to exposure while working for BHP in South Australia. Mr. Schultz, a resident of South Australia, sought damages and prospective loss under New South Wales legislation. BHP sought to have the proceedings transferred from the DDT to the Supreme Court of South Australia, arguing it was the more appropriate forum.

The central legal issues before the High Court were whether the Supreme Court of New South Wales erred in its application of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth) and related State legislation, specifically concerning the transfer of proceedings between State courts. The Court was required to determine the criteria for deciding whether a proceeding should be transferred in the interests of justice, considering factors such as the plaintiff's choice of forum, the location of the alleged wrong, the availability of specialist tribunals, and the potential differences in applicable law between the states. The Court also considered the relationship between applications for transfer under the cross-vesting legislation and the common law doctrine of *forum non conveniens*.

The High Court found that the primary judge's decision was affected by material error. While acknowledging the specialist nature and procedural advantages of the Dust Diseases Tribunal, the Court noted that BHP had undertaken to provide Mr. Schultz with the benefit of those provisions if the proceedings were transferred. The Court also considered that the primary judge may have overlooked the broader interests of justice, including potential issues between Mr. Schultz and other respondents, and cross-claims, which had received insufficient attention. The Court concluded that the matter should be remitted to the Supreme Court of New South Wales for further consideration.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of New South Wales. The Court ordered that the proceeding be removed into the Common Law Division of the Supreme Court of New South Wales and then transferred to the Supreme Court of South Australia. BHP was ordered to pay Mr. Schultz's costs in the High Court.