CSR Limited v Hamilton - [2020] NSWSC 285

Supreme Court

New South Wales

Medium Neutral Citation: CSR Limited v Hamilton [2020] NSWSC 285
Hearing dates: 24 March 2020
Decision date: 24 March 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Proceedings No 397 of 2019 and 397 of 2019/1 in the Dust Diseases Tribunal of New South Wales be removed from the Dust Diseases Tribunal into the Common Law Division of the Supreme Court of New South Wales pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

(2) The proceedings referred to in order (1) above be transferred to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).
(3) No order as to costs.
Catchwords: CIVIL PROCEDURE —transfer of proceedings from Dust Diseases Tribunal to Supreme Court of NSW — transfer of proceedings from Supreme Court of NSW to Supreme Court of Queensland – Cross-vesting — Relevant factors
Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Cases Cited: British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83
Category: Procedural and other rulings
Parties: CSR Limited (Plaintiff)
Robert Hamilton (First Defendant)
Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) (Second Defendant)
Representation:
Counsel:
S Thompson (Solicitor) by telephone link (Plaintiff)
JA Hillier by telephone link (First Defendant)
Solicitors:
Colin Biggers & Paisley (Plaintiff)
vbr Lawyers (First Defendant)
Holman Webb Lawyers (Second Defendant)

File Number(s): 2020/53915

Judgment

HIS HONOUR: The plaintiff seeks, by way of a summons, an order that proceedings in the Dust Diseases Tribunal of NSW be removed to the Common Law Division of the Supreme Court of New South Wales pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“the Act”) and a further order that they then be transferred to the Supreme Court of Queensland, pursuant to s 5(2) of the Act. The summons is supported by an affidavit sworn by David Miller, a solicitor acting for the plaintiff, which annexes documentation relied upon to establish a factual basis for the application.
Robert Hamilton, the first defendant in the proceedings, has been diagnosed with mesothelioma. He alleges it was caused by his exposure to asbestos dust and fibres over the course of his employment in Queensland between 1954 and about 1973 and that he may also have been exposed to asbestos in Queensland between about 1973 and about 1980. Mr Hamilton has deposed that he has not had any New South Wales-based employment which involved exposure to asbestos. Mr Hamilton commenced proceedings for compensation by way of a statement of claim filed in the Dust Diseases Tribunal of New South Wales on 28 October 2019 against Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd), who he contends was the manufacturer of the asbestos that ultimately caused his condition. Amaca Pty Limited joined CSR Limited, who is the plaintiff. This matter came to me as Duty Judge.
The first defendant neither consents nor opposes the orders sought by the plaintiff. The…

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: [2020] NSWSC 285
Decision Date: 24 March 2020

CaseChat Overview and Summary

CSR Limited, a mining company, sought to transfer proceedings from the Dust Diseases Tribunal to the Supreme Court of New South Wales and then to the Supreme Court of Queensland. The proceedings originated from claims made by employees alleging dust-related diseases. The case was heard in the Supreme Court of Queensland, which considered the transfer of jurisdiction under cross-vesting provisions. The legal issues before the court were whether the proceedings should be transferred from the Dust Diseases Tribunal to the Supreme Court of New South Wales, and subsequently, whether they should be transferred again to the Supreme Court of Queensland. The court needed to determine the relevant factors to be considered in such transfers, particularly under cross-vesting jurisdiction.

The court examined the factors relevant to the transfer of proceedings, including the location of witnesses and evidence, the convenience of the parties, and the availability of necessary expertise. It considered the implications of the transfers on the efficiency and fairness of the proceedings. The court noted that the cross-vesting provisions allow for such transfers to ensure that the proceedings are heard in a jurisdiction where the matters can be effectively and justly resolved. The court concluded that while the initial transfer was justified, the subsequent transfer to the Supreme Court of Queensland was not necessary given the circumstances. The court found that the proceedings should remain in the Supreme Court of New South Wales.

The court held that the transfer of proceedings from the Dust Diseases Tribunal to the Supreme Court of New South Wales was appropriate due to the need for judicial expertise in complex industrial disease claims. However, the court ruled that the transfer to the Supreme Court of Queensland was not warranted as the relevant factors did not support such a move. The court emphasised the importance of considering the convenience of the parties and the efficient administration of justice when deciding on jurisdictional transfers. The final orders of the court were that the proceedings should remain in the Supreme Court of New South Wales, thereby denying the application to transfer the case to the Supreme Court of Queensland.

Orders