BHP Billiton v Harwood - [2011] NSWSC 680

Supreme Court

New South Wales

Medium Neutral Citation: BHP BILLITON v HARWOOD [2011] NSWSC 680
Hearing dates: 29 June 2011
Decision date: 06 July 2011
Before: HOEBEN J
Decision:
(1) I order pursuant to s8 of the Jurisdiction of Courts (Cross-Vesting) Act that proceedings No 74/2011 pending in the Dust Diseases Tribunal of New South Wales between BHP Billiton Limited (the plaintiff) as the defendant and Raymond Harwood (the defendant) as the plaintiff ("the DDT proceedings") be removed into the Common Law Division of this Court.
(2) I order that pursuant to s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act that the DDT proceedings when removed into this Court be transferred to the Supreme Court of South Australia.
(3) I reserve the question of costs.

Catchwords: CROSS-VESTING APPLICATION - proceedings commenced in Dust Diseases Tribunal of NSW - plaintiff in those proceedings suffering from mesothelioma - application to transfer proceedings to Supreme Court of South Australia - interests of justice - special procedures to facilitate hearing available in both jurisdictions - importance of coincidence of lex loci delicti and lex fori - natural forum is South Australia - proceedings should be transferred.
Legislation Cited: Dust Diseases Tribunal Act (NSW)
Industrial Code 1967 (SA)
Industrial Safety Health and Welfare Act 1972 (SA)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Cases Cited: Abel v Amaca Pty Limited [2010] SADC 98
Amaca v Harris [2005] NSWSC 622
BHP Billiton Limited v Schultz & Ors [2004] HCA 61, (2004) 221 CLR 400
BHP Billiton Limited v Utting & Anor [2005] NSWSC 260
Caltex Refineries (Queensland) Pty Limited v Stavar & Ors [2008] NSWSC 223
James Hardie & Co Pty Limited v Barry [2000] NSWCA 353, (2000) 50 NSWLR 357
Spiliada Maritime Corporation v Cansulex Limited (1987) AC 460
Sullivan v Gordon (1999) 47 NSWLR 319
Category: Principal judgment
Parties: BHP BILLITON LIMITED - Plaintiff
Raymond HARWOOD - Defendant
Representation: Counsel:
TGR Parker SC/D Anderson - Plaintiff
PCB Semmler QC/S Tzouganatos - Defendant
Solicitors:
Piper Alderman Lawyers - Plaintiff

File Number(s): 2011/00063214

Judgment

HIS HONOUR:

Nature of proceedings

BHP Billiton Limited (BHPB) (a company registered in Victoria and having places of business throughout Australia) seeks an order pursuant to s8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("the Cross-Vesting Act") removing into the Common Law Division of the Supreme Court of New South Wales proceedings in the Dust Diseases Tribunal of NSW ("the Tribunal") being matter No 74 of 2011 ("the DDT proceedings"). In the DDT proceedings the defendant, Raymond Harwood, is the plaintiff and BHPB is the defendant.

Should such a removal be ordered, BHPB seeks an order pursuant to s5(2)(b)(iii) of the Cross-Vesting Act for the transfer of the removed proceedings from the Supreme Court of New South Wales to the Supreme Court of South Australia.

Sections 5 and 8 of the Cross-Vesting Act relevantly provide:

"8(1) Where:

(a) a proceeding (in this subsection referred to as the " relevant proceeding" ) is pending in:

...

(ii) a…

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: [2011] NSWSC 680
Decision Date: 06 July 2011

CaseChat Overview and Summary

The case of BHP Billiton versus Harwood involved a legal dispute that originated in the Dust Diseases Tribunal of New South Wales. The plaintiff, Mr Harwood, was diagnosed with mesothelioma and sought to hold BHP Billiton responsible for his condition. Given the nature of the illness and the need for expert evaluation, BHP Billiton applied to the Supreme Court of South Australia to transfer the proceedings from the Tribunal to the Court. The crux of the matter was whether the transfer would serve the interests of justice and whether the South Australian Supreme Court was the appropriate forum to hear the case.

The legal issues before the court revolved around the jurisdiction and the applicability of cross-vesting provisions under the relevant statutes. The court had to determine if transferring the case to South Australia would be in the interests of justice, considering the availability of special procedures to facilitate the hearing in both jurisdictions. Additionally, the court assessed the significance of the alignment between the law of the place where the alleged wrongdoing occurred and the law of the forum. The court also needed to ascertain whether South Australia was the natural forum for the litigation, taking into account the plaintiff's residence and the location of the defendant's operations.

The court found that transferring the proceedings to the Supreme Court of South Australia would indeed serve the interests of justice. It was determined that special procedures to facilitate the hearing were available in both jurisdictions, making the decision less dependent on procedural convenience. The court emphasised the importance of aligning the lex loci delicti with the lex fori, which pointed towards South Australia as the natural forum. Given that the defendant's operations were predominantly based in South Australia, and considering the plaintiff's connection to the state, the court concluded that the proceedings should be transferred to the Supreme Court of South Australia.

As a result, the court ordered the transfer of the proceedings from the Dust Diseases Tribunal of New South Wales to the Supreme Court of South Australia. This decision was based on the interests of justice, the availability of special procedures in both jurisdictions, and the alignment of the relevant laws. The transfer aimed to ensure that the case was heard in the most appropriate and convenient forum for all parties involved.

Orders