Broken Hill Pty Co Ltd v Zunic - [2001] NSWSC 561

CITATION: Broken Hill Proprietary Company Ltd v Zunic & ors [2001] NSWSC 561

FILE NUMBER(S): SC 11353/2001; 11354/2001; 11425/2001

HEARING DATE(S): 8 May 2001; 11 May 2001; 21 June 2001

JUDGMENT DATE:
5 July 2001

PARTIES :

Broken Hill Proprietary Company Ltd t/as Whyalla Ship Building & Engineering Works v Zunic & 3 ors
Wallaby Grip Ltd & anor. v Zunic & 2 ors.
Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) v Zunic & 3 ors

JUDGMENT OF: Sully J at 1

COUNSEL : B. Walker SC/D. Graham (1st and 3rd Applicants)
C. Birch SC/A. Scotting (2nd Applicants)
J. W. Shaw QC/J. L. Sharpe (Defendants)

SOLICITORS: Piper Alderman - BHP
Middletons, Moore & Bevins - Wallaby Grip
Phillips Fox - Amaca
Turner Freeman - Defendants

LEGISLATION CITED: Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Dust Diseases Tribunal Act 1989 (NSW)

CASES CITED: Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357
Hayward v Barratt & anor (2000) NSWSC 708 (11 July 2000)
Hearn v Commonwealth [2000] NSWDDT 12 (6 December 2000)
Distillers Co. (Biochemicals) Ltd v Thompson [1971] AC 458 at 468E
Goliath Portland Cement Co. Ltd v Bengtell & anor. (1994) 33 NSWLR 414 at 419

DECISION: In each of the three present applications, the summons is dismissed with costs

SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

5 July 2001
11353/2001 - THE BROKEN HILL PROPRIETARY COMPANY LTD trading as THE WHYALLA SHIP BUILDING & ENGINEERING WORKS v ZUNIC & 3 ORS

11354/2001 - WALLABY GRIP LIMITED & ANOR. v ZUNIC & 2 ORS.

11426/2001 - AMACA PTY LIMITED (formerly James Hardie & Coy Pty Limited) v ZUNIC & 3 ORS

JUDGMENT

1 HIS HONOUR: Before the Court are three summonses, each of which seeks: first, an order pursuant to section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), [“the Cross-Vesting Act”], removing into the Common Law Division of this Court certain proceedings current in the Dust Diseases Tribunal of NSW, [“the Tribunal”]; and secondly, should such removal be ordered, then an order pursuant to section 5(2)(iii) of the Cross-Vesting Act for the transfer of the removed proceedings from this Court to the Supreme Court of South Australia.

2 The plaintiffs in the three summonses are, variously: The Broken Hill Proprietary Company Limited trading as the Whyalla Ship Building & Engineering Works, [“BHP”]; two related companies, Wallaby Grip Limited, and Wallaby Grip (BAE) Pty Limited (in liquidation), which it is convenient to treat together for present purposes, and to describe jointly as “Wallaby”; and Amaca Pty Limited (formerly James Hardie & Company Pty Limited), [“Amaca”].

Factual Background

3 There are current in the Tribunal proceedings that were commenced by the filing on 7 March 2001 of a Statement of Claim in which the named plaintiff is Mr. Ivan Zunic, and the named defendants are the corporate plaintiffs in the three summonses to which I have earlier referred.

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: [2001] NSWSC 561
Decision Date: 5 July 2001

CaseChat Overview and Summary

Broken Hill Proprietary Company Ltd trading as Whyalla Ship Building & Engineering Works, Wallaby Grip Ltd, and Amaca Pty Limited sought to have proceedings currently before the Dust Diseases Tribunal of New South Wales transferred to the Supreme Court of South Australia. The plaintiffs argued that the alleged torts occurred in South Australia and that the interests of justice required the transfer of the proceedings. The applicants argued that Mr. Zunic, the plaintiff, had engaged in "forum shopping" by initiating proceedings in the Dust Diseases Tribunal of New South Wales.

The court considered various factors in determining whether to transfer the proceedings to the Supreme Court of South Australia. These factors included the personal circumstances of Mr. Zunic, the jurisdiction of the Tribunal, the applicants' delay in seeking removal and cross-vesting orders, the Tribunal's experience in dealing with dust disease claims, the place of the alleged torts, the comparative availability of an appropriately expedited hearing, cost considerations, and evidentiary advantages.

After weighing these factors, the court found that the interests of justice favoured leaving Mr. Zunic to pursue his claims in the Dust Diseases Tribunal of New South Wales. The court dismissed the summonses with costs.

The court concluded that Mr. Zunic's age, health, and the urgency of his case supported a prompt resolution of his claims. The court also found that the Tribunal had jurisdiction to hear Mr. Zunic's claims and that he had chosen to litigate in the Tribunal based on legitimate procedural, evidentiary, and cost advantages. Furthermore, the applicants' delay in seeking removal and cross-vesting orders weighed against their applications. The court also considered the Tribunal's experience in dealing with dust disease claims and the fact that the alleged torts occurred in South Australia. However, the court found that the other factors, such as the availability of an expedited hearing and cost considerations, favoured leaving the proceedings in the Dust Diseases Tribunal of New South Wales.

Orders