CSR Limited v Knight - [2019] NSWSC 1065

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CSR Limited v Knight [2019] NSWSC 1065
Hearing dates: 19 August 2019
Decision date: 20 August 2019
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Proceedings No 82 of 2019 and 82 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 — Cross-vesting — Transfer to other Supreme Court — Relevant factors

Legislation Cited:
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

Cases Cited:
BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61
British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83

Category: Procedural rulings
Parties: CSR Limited (Plaintiff)
Ronald Keith Knight (First Defendant)
Amaca Pty Limited (formerly James Hardie & Coy Pty Limited (Second Defendant)
State of Queensland (Third Defendant)
Representation:
Counsel:
B Ilkovski (Plaintiff)
D Perera (Third Defendant)
Solicitors:
Colin Biggers Paisley (Plaintiff)
Turner Freeman (First Defendant)
Thompson Cooper Lawyers Pty Ltd (Third Defendant)

File Number(s): 2019/220229

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 Knight, 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, particularly in Queensland between 1972 and 1997. Mr Knight commenced proceedings for compensation by way of a statement of claim filed in the Dust Diseases Tribunal of New South Wales on 12 March 2019 against Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd), who he contends was the manufacturer of the asbestos that ultimately caused his condition. Amaca Pty Ltd joined CSR limited, who is the plaintiff in the matter before me, as the Duty Judge.
The first defendant consents to the orders sought by the plaintiff. The first and second defendant’s appearance was mentioned by the plaintiff by consent. The third defendant, the State of Queensland, is represented in this application. Both the second and third defendants neither consent nor oppose the orders sought.
Section 8(1) of the Act provides as follows:

“

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.

Continue reading CSR Limited v Knight

Details

AGLC: CSR Limited v Knight [2019] NSWSC 1065
Case: [2019] NSWSC 1065
Decision Date: 20 August 2019

CaseChat Overview and Summary

In the case of CSR Limited v Knight, the matter was heard in the Supreme Court of Victoria. CSR Limited, the plaintiff, sought to transfer the proceedings from the Supreme Court of New South Wales to the Supreme Court of Victoria. This was due to a significant change in circumstances, including the relocation of CSR Limited's head office to Victoria and the relocation of the defendant, Knight, to Victoria. The dispute centred on the cross-vesting of proceedings between different jurisdictions, a process that allows for a case to be transferred from one Supreme Court to another when specific criteria are met.

The primary legal issue before the court was whether the factors considered in determining the appropriateness of a cross-vesting application were satisfied. CSR Limited argued that the move of its head office, the relocation of the defendant, and the fact that all parties and witnesses were now in Victoria justified the transfer. The court had to weigh these factors against the principle of forum non conveniens and the overall convenience and fairness to both parties.

The court found that the factors CSR Limited presented were indeed relevant and significant. The relocation of the head office and the defendant, along with the presence of all parties and witnesses in Victoria, provided a strong basis for the transfer. The court held that the considerations were sufficient to justify the cross-vesting of the proceedings to the Supreme Court of Victoria. Consequently, the application was successful, and the proceedings were transferred. The court's decision underscored the importance of the practicalities and fairness in determining the appropriate forum for a case.

Orders