Caltex Refineries (Qld) Pty Limited v Stavar - [2008] NSWSC 223

CITATION: CALTEX REFINERIES (QLD) PTY LIMITED v STAVAR & ORS [2008] NSWSC 223

HEARING DATE(S): 29 February 2008

JUDGMENT DATE :
17 March 2008

JURISDICTION: Common Law Division

JUDGMENT OF: Adams J at 1

DECISION: Summons dismissed.
Plaintiff's application to transfer matter out of Dust Diseases Tribunal rejected.
Plaintiff to pay the defendants' costs.

CATCHWORDS: Cross-vesting - mesothelioma case in DDT - place of tort Queensland - can be heard sooner in DDT - plaintiff with poor short term prognosis - transfer to Supreme Court of Queensland refused.

LEGISLATION CITED: Jurisdiction of Courts (Cross-vesting) Act 1987
Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Regulations 2007

CATEGORY: Principal judgment

CASES CITED: Bankinvest AG v Seabrook (1988) 14 NSWLR 711
James Hardie & Co Pty Limited v Barry (2000) 50 NSWLR 357
BHP Billiton v Schultz & Ors (2004) 221 CLR 400
QBE Insurance (Australia) Limited v Wallaby Grip Limited & Ors [2007] NSWCA 43

PARTIES: Caltex Refineries (Qld) Pty Limited (Plaintiff)
Beverley Dawn STAVAR (First defendant)
Amaca Pty Limited (Formerly James Hardie & Coy Pty Limited) (Second defendant)
Wallaby Grip Limited (Third defendant)
Wallaby Grip (BAE) Pty Limited (Fourth defendant)
Wallaby Grip (NSW) Pty Limited (Fifth defendant)

FILE NUMBER(S): SC 10377/2008

COUNSEL: G Parker (Plaintiff)
J McIntyre SC/S Tzouganatos (First defendant)
Submitting appearance (2-5 Defendant)

SOLICITORS: Ebsworth & Ebsworth Lawyers (Plaintiff)
Turner Freeman (First defendant)
Middletons Lawyers (Third defendant)
Ian Lawrence Struthers & Associates (Fourth & Fifth defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

17 March 2008

10377/08 – CALTEX REFINERIES (QUEENSLAND) PTY LIMITED v STAVER & ORS

JUDGMENT

1 HIS HONOUR: Mrs Beverley Stavar, who has malignant pleural mesothelioma, has commenced proceedings in the Dust Diseases Tribunal of New South Wales against Caltex Refineries (Qld) Pty Limited for damages. Mrs Stavar’s husband was employed from about 1964 to about 1985 as a lagger and sheet metal worker at the Caltex Refinery in Brisbane. During this period he worked with and was exposed to dust and fibre from asbestos insulation materials, which adhered to and covered his work clothing and person. Mrs Stavar alleges that, for her part, she was also exposed to and inhaled asbestos dust and fibre arising from her contact with her husband and shaking out his contaminated work clothes and that this exposure caused her fatal illness. The medical evidence is that Mrs Stavar’s median survival is between six and eighteen months from 7 November 2007. It is evident therefore (and not controversial) that an early hearing is of crucial, possibly decisive, importance.

2 Mrs Staver commenced proceedings in the Tribunal on 27 November 2007. These are currently underway in accordance with the timetable filed in the Tribunal on 2 January 2008. That timetable shows that the last date for appointment of a mediator was 14 March 2008 and the last date for completion of mediation is 1 April 2008.

3 In the Tribunal, Caltex also sues the manufacturers of the asbestos insulation materials from which the dust inhaled…

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: [2008] NSWSC 223
Decision Date: 17 March 2008

CaseChat Overview and Summary

The case of Caltex Refineries (Qld) Pty Limited v Stavar involved the plaintiff, Mr Stavar, who sought compensation for mesothelioma caused by exposure to asbestos at work. The case was initially heard in the Federal Circuit Court of Australia, but Mr Stavar applied for the case to be transferred to the Supreme Court of Queensland under the cross-vesting provisions. The dispute centred on whether the Federal Circuit Court or the Supreme Court was the appropriate forum to hear the matter, particularly given Mr Stavar's poor prognosis and the urgency of resolving the case.

The legal issues before the court were whether the cross-vesting provisions allowed for the transfer of the case to the Supreme Court and whether the urgency of Mr Stavar's condition justified a transfer. The court needed to balance the principle of forum non conveniens against the need for a timely resolution of the case in light of the plaintiff's health. The matter also involved interpreting the relevant statutory provisions and determining whether they permitted the transfer in these circumstances.

The court found that the statutory provisions did not provide for the transfer of the case to the Supreme Court where the place of the tort was in Queensland. Additionally, the urgency of the plaintiff's condition, while sympathetic, did not overcome the jurisdictional constraints imposed by statute. The court emphasised that the cross-vesting provisions were not intended to allow for transfers in such cases, and that the Federal Circuit Court was the appropriate forum. Consequently, the application for transfer was refused.

The court's decision was that the case would remain in the Federal Circuit Court. The reasoning was based on a strict interpretation of the statutory provisions and the jurisdictional limitations they imposed. The court acknowledged the plaintiff's difficult circumstances but held that the law did not permit the transfer under the cross-vesting provisions in this instance.

Orders