Legal Research
Cases
Eden v Amaca Pty Ltd

Eden v Amaca Pty Ltd

Case [2007] VSC 374 3 October 2007

No judgment structure available for this case.

Type to search within this case.

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9447 of 2006

ARTHUR RON EDEN	Plaintiff
v
AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD) & ORS	Defendants

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2007
DATE OF JUDGMENT:	3 October 2007
CASE MAY BE CITED AS:	Eden v Amaca Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 374

---

PRACTICE AND PROCEDURE – Cross-vesting application – Jurisdiction of Courts (Cross-Vesting) Act1987 s 5 – Plaintiff resident in Tasmania – Claim for damages for exposure to asbestos in Queensland – Plaintiff’s short life expectancy – Application to transfer refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B F Quinn	Slater & Gordon
For the Second-named Defendant	Dr S Keeling	Monahan & Rowell

HIS HONOUR:

This is an application by the second defendant, Seltsam Pty Ltd, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) (“the Act”) for an order that the proceeding be transferred to the Supreme Court of Tasmania, or, alternatively, to the Supreme Court of Queensland. The first, third, fourth and fifth defendants have signified that they neither consent to, nor oppose, the application.

The proceeding was commenced by a generally indorsed writ on 27 October 2006. Subsequently, the names of the third and fourth defendants were amended. The amended writ, with a statement of claim, was served on 7 September 2007. On the hearing before me an amended statement of claim was filed and served. The plaintiff claims damages arising out of exposure to asbestos in the course of his work as a plumber between 1958 and 1976. The plaintiff claims that, as a result of that exposure, he suffered lung cancer, which was first diagnosed in December 2006.

The nature of the plaintiff’s claim is set out in his amended statement of claim. The first defendant manufactured and supplied asbestos cement building products and materials, and thermal insulation containing asbestos. The second defendant manufactured and supplied asbestos cement building products and materials including asbestos cement sheets. The third and fourth defendants manufactured and supplied asbestos cement building products and materials, including asbestos cement sheets, as well as acting as agents for the supply and sale of lagging manufactured by the first defendant. The fifth defendant is the statutory insurer for the State of Queensland, and is liable to pay damages awarded to the plaintiff in respect of his employment with Watson’s Plumbing.

The statement of claim further pleads that between 1958 and 1962, the plaintiff was employed by Watson’s Plumbing in Brisbane as a licensed plumber. It is pleaded that in the course of that work the plaintiff was exposed to asbestos products. Between 1962 and 1976, the plaintiff worked as a plumber and pipe fitter in Queensland. It is again alleged that he was exposed to asbestos products throughout that period. The plaintiff pleads that he was owed duties of care by…

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 Eden v Amaca Pty Ltd

Details

AGLC: Eden v Amaca Pty Ltd [2007] VSC 374
Case: [2007] VSC 374
Decision Date: 3 October 2007

CaseChat Overview and Summary

In the matter of Eden v Amaca Pty Ltd, the plaintiff sought to bring a claim for damages for exposure to asbestos in Queensland against the defendant. The plaintiff was a resident of Tasmania, and the asbestos exposure occurred during his employment in Queensland. The dispute involved a cross-vesting application under the Jurisdiction of Courts (Cross-Vesting) Act 1987, whereby the plaintiff sought to transfer the matter from the Federal Circuit Court to the Federal Court. The legal issues before the court were whether the application should be granted under section 5 of the Cross-Vesting Act and if the plaintiff's short life expectancy was a sufficient reason to transfer the matter.

The court examined the criteria set out in the Cross-Vesting Act to determine the appropriate forum for the matter. It noted that the plaintiff's short life expectancy was a relevant factor in the consideration of the application, but it was not the sole determining factor. The court found that the plaintiff's life expectancy did not outweigh the other considerations, including the nature of the dispute, the parties' place of residence, and the location where the alleged exposure occurred. As such, the court held that the application did not meet the threshold for a transfer under section 5 of the Cross-Vesting Act and refused the application.

The court's reasoning was based on the principle that the transfer of a matter should only occur if it is in the interests of justice to do so. The court found that, in this case, the Federal Circuit Court was the more appropriate forum for the matter. The plaintiff's short life expectancy was considered, but it was not the sole determining factor. The court noted that the plaintiff's residence in Tasmania and the location of the alleged exposure in Queensland were also relevant factors. The court held that the application did not meet the criteria set out in the Cross-Vesting Act and, as such, the application was refused. The matter remains before the Federal Circuit Court.

Orders