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

1. 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.

2. 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.

3. The first defendant neither consents nor opposes the orders sought by the plaintiff. The second defendant’s appearance was mentioned by the plaintiff by consent. The second defendant consents to the orders sought by the plaintiff.

4. Section 8(1) of the Act provides as follows:

“8   Orders by Supreme Court of a Territory

(1)   Where:

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

(i)   a court, other than the Supreme Court, of a Territory; or

(ii)   a tribunal established by or under a law of a Territory; and

(b)   it appears to the Supreme Court of that Territory that:

…

(ii)   an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court;

the Supreme Court of that first-mentioned Territory may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to that Supreme Court.”

5. In order to determine whether the matter should be removed to this Court, it is necessary to consider whether, assuming it is so removed, it would then be appropriate for the matter to be transferred to the Supreme Court of Queensland.

6. Section 5(2)(b)(iii) of the Act provides:

“5   Transfer of proceedings

…

(2)   Where:

(a)   a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and

(b)   it appears to the first court that:

…

(iii)   it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.”

7. In British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83, Harrison J referred to this provision, stating:

“25 The determination of whether it is in the ‘interests of justice’ under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state depends on what is the ‘more appropriate’ forum for those proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161] – [169] per Kirby J. Another way of putting the same inquiry is to ask which is the ‘natural forum’ for the proceedings: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44], Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69].

26   In Spilliada Maritime Corp v Cansulex Limited [1987] 1 AC 460 at 478 Lord Goff identified some of the ‘connecting factors’ which were of importance in the application of the principle of forum non conveniens in England:

‘So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business.’”

8. In this case, the plaintiff contends that all of the exposure alleged by the first defendant has been at various places of employment in Queensland over a 26-year period. None of the parties allege that the first defendant was exposed to asbestos dust or fibres in New South Wales.

9. As well, the following are “factors affecting convenience or expense” which are apparent from the material annexed to the affidavit of David Miller:

(a)   the first defendant resides in Queensland;

(b)   the first defendant’s treating medical practitioners are based in Queensland;

(c)   any witnesses of fact are likely to be resident in Queensland;

(e)   the first defendant’s solicitors are based in Queensland.

10. For these reasons, I am satisfied that it is in the interests of justice for the matter to be removed to this Court and transferred to the Supreme Court of Queensland. Accordingly, I make the following orders:

(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.

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Decision last updated: 24 March 2020