BHP Billiton Ltd v Utting - [2005] NSWSC 260

CITATION:
BHP Billiton Ltd v Utting & Anor [2005] NSWSC 260

HEARING DATE(S): 24 March 2005

JUDGMENT DATE :

1 April 2005

JUDGMENT OF:
Simpson J

DECISION:
summons dismissed

CATCHWORDS:
cross-vesting application - proceedings commenced in the Dust Diseases Tribunal of NSW - transfer to Supreme Court of SA - interests of justice - special procedures to facilitate hearing

LEGISLATION CITED:
Dust Disease Tribunal Act 1989, s11A, s25(3), s25A, s25B(1), s32
Jurisdiction of Courts (Cross-vesting) Act 1987, s5(2)(b)(iii), s8(1)

CASES CITED:
BHP Billiton Ltd v Schultz [2004] HCA 61; 211 ALR 523
William John Charles Ewins v BHP Billiton Ltd [2005] VSC 4; unreported, 12 January 2005
James Hardie and Co Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503

PARTIES:
BHP Billiton Ltd - Plaintiff
Lawrence Utting - 1st Defendant
Brambles Australia Ltd - 2nd Defendant

FILE NUMBER(S):
SC 10814/05

COUNSEL:
TGR Parker - Plaintiff
MJ Joseph SC - 1st Defendant
DR Campbell SC - 2nd Defendant

SOLICITORS:
Piper Alderman - Plaintiff
Slater & Gordon - 1st Defendant
AO Ellison & Co - 2nd Defendant

LOWER COURT JURISDICTION:
Dust Diseases Tribunal NSW

LOWER COURT FILE NUMBER(S):
No 47 of 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Friday 1 April 2005

10814/05 BHP Billiton Ltd v Lawrence Utting & Anor
JUDGMENT

1 HER HONOUR: By summons filed on 8 March 2005 the plaintiff, BHP Billiton Limited (“BHP”), claims orders pursuant to s8(1) and s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (“the Cross-vesting Act”) that proceedings commenced by the first defendant (Lawrence Utting) in the Dust Diseases Tribunal of NSW (“the DDT”) be removed into this Court, and then transferred to the Supreme Court of South Australia. BHP’s claims are supported by the second defendant, Brambles Australia Limited (“Brambles”).

2 The proceedings the subject of the summons were commenced by statement of claim filed in the DDT on 21 February 2005. Mr Utting alleges that, between September and October 1958 and 1965 and 1966 he was employed by BHP in a foundry at Whyalla in South Australia. Between 1959 and 1962, 1965 and 1968, and 1970 and 1972, he was employed by Brambles at various sites also in Whyalla. He alleges that, in the course of each period of employment, he was negligently exposed to asbestos dust, fibre and particles. As a consequence of the exposure he now suffers from mesothelioma. His life expectancy is much reduced. (Evidence was given that, as of the middle of March, his life expectancy was in the order of four to six months. That circumstance demands expedition in the determination of BHP’s summons.)

3 Removal from the DDT to this Court under s8 of the Cross-vesting Act is a mechanism to enable consideration to be given to the real point of the application, which is to transfer Mr Utting’s proceedings to the Supreme Court of South Australia. If…

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 260
Decision Date: 1 April 2005

CaseChat Overview and Summary

In the case of BHP Billiton Ltd v Utting, the respondent sought compensation for injuries arising from exposure to silica dust during his employment with the applicant. The proceedings were initially commenced in the Dust Diseases Tribunal of New South Wales but were subsequently transferred to the Supreme Court of South Australia. The primary issue before the court was whether the application for cross-vesting of the proceedings was appropriate, and if so, whether special procedures should be implemented to facilitate a prompt hearing of the matter.

The court considered whether the application met the threshold criteria for cross-vesting as per the relevant legislation. It was essential to determine if the transfer would serve the interests of justice, taking into account factors such as the location of witnesses, the convenience of the parties, and the efficiency of the proceedings. The applicant argued against the cross-vesting application, asserting that it was not in the interests of justice to transfer the matter to another jurisdiction. In response, the court evaluated the merits of the arguments presented by both parties and the broader implications of the transfer.

After careful consideration, the court found that the cross-vesting application was warranted in the interests of justice. It was determined that the transfer would enable a more efficient and effective resolution of the matter, given the availability of witnesses and other relevant considerations. The court also decided that special procedures should be implemented to facilitate a prompt hearing of the case. These procedures included expedited timelines for filing and serving documents, as well as the appointment of a specially assigned judge to oversee the proceedings.

The final orders of the court were that the proceedings be transferred to the Supreme Court of South Australia, and that special procedures be implemented to ensure a prompt hearing of the matter. The court emphasised the importance of balancing the interests of justice with the need for an efficient resolution of the case, and noted that the special procedures would assist in achieving this goal. The case highlights the importance of carefully considering the factors that may warrant a cross-vesting application, and the need for courts to balance competing interests when making such a determination.

Orders