Hearn v Commonwealth - [2000] NSWDDT 12

CITATION: Hearn v Commonwealth [2000] NSWDDT 12

PARTIES: Francis C Hearn
v

Commonwealth of Australia

TITLE OF COURT: Dust Diseases Tribunal of New South Wales

JURISDICTION: Original

MATTER NO/S: NSWDDT 256 of 2000

DELIVERED ON: 6 December 2000

DELIVERED AT: Sydney

HEARING DATES: 5, 6 December 2000

JUDGMENT OF: O’Meally J

NUMBER OF PARAGRAPHS: 44

CATCHWORDS: Dust Diseases - Jurisdiction - stay of proceedings - forum non conveniens - regular invocation of jurisdiction - connecting factors slight - one of two defendants submitted to jurisdiction

Dust Diseases - Jurisdiction - stay of proceedings - forum non conveniens - ability of other forum to hear urgent cases expeditiously - Statutory prodedurs and Tribunal practices minimise delay and costs - proceedings not vexatious or oppressive

Dust Diseases - Jurisdiction - stay of proceedings – Service and Execution of Process Act 1992 (Cth) - s 20(3) - court may order stay - power to stay discretionary

Dust Diseases - Jurisdiction - stay of proceedings – Service and Execution of Process Act 1992 (Cth) - s 20(4) - factors to be considered - one common law for Australia - interests of parties - interests of justice - litigation in Dust Diseases Tribunal quicker and cheaper than to recommence in alternate jurisdiction - proceedings not stayed

REPRESENTATION
PLAINTIFF
A J Katzman SC instructed by Alex Stuart & Associates

DEFENDANTS
J F Burn instructed by Australian Government Solicitor for the first defendant
Malcolm Holmes QC instructed by Phillips Fox for the second defendant

Dust Diseases Tribunal of New South Wales

Matter No 256 of 2000

Francis C Hearn

Commonwealth of Australia

and

National Australia Bank Limited

6 December 2000

O’MEALLY J
JUDGMENT

This is an application by National Australia Bank Limited that proceedings commenced against it and the Commonwealth of Australia be stayed permanently. The application is brought on two bases. Firstly, pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) (SEP Act) and secondly, and in the alternative, under Pt 11 r 8(1)(h) of the Supreme Court Rules, which have been adopted to apply in the Tribunal. Though National Australia Bank Limited is the applicant I shall refer to it and to the other parties according to the character they bear in the proceedings. National Australia Bank Limited is the second defendant.
The plaintiff, Francis Charles Hearn, is a resident of Adelaide in the State of South Australia. On 2 November 2000 he issued a Statement of Claim alleging that in the course of his employment by the first defendant in premises leased to it by the second defendant he was negligently exposed to asbestos dust and fibre as a result of which he has contracted malignant mesothelioma. Each of the negligent acts and omissions is alleged to have occurred in the State of South Australia. In addition the plaintiff alleges against each defendant breaches of s 124(1) of the Health Act 1935 (SA).
The second defendant submits that the proceedings should be stayed under s 20 of 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.

Continue reading Hearn v Commonwealth

Details

AGLC: Hearn v Commonwealth [2000] NSWDDT 12
Case: [2000] NSWDDT 12
Decision Date: 6 December 2000

CaseChat Overview and Summary

The case of Hearn v Commonwealth involved the plaintiff, who suffered from a dust-related disease, seeking damages from the Commonwealth for the injuries sustained. The primary legal issue was whether the court should stay the proceedings on the basis of forum non conveniens, given that the plaintiff had another available forum in which to pursue his claim. The Federal Court was tasked with determining whether the Australian forum was the appropriate place for the trial of the action.

The court examined whether the connection between Australia and the proceedings was sufficiently strong to justify exercising jurisdiction, and whether there was another forum that was more appropriate. It was noted that the plaintiff had submitted to the jurisdiction of the Australian court, while the Commonwealth had not. The court also considered whether the other available forum, the Dust Diseases Tribunal, could hear the matter expeditiously and whether there were any statutory procedures or tribunal practices that would minimise delays and costs. The court found that the other forum was capable of hearing the matter quickly and at a lower cost, and that the statutory provisions and tribunal practices would further minimise any potential delays and costs. Additionally, the court found that the proceedings were neither vexatious nor oppressive.

The court exercised its discretion under section 20(3) of the Service and Execution of Process Act 1992 (Cth) to determine whether to stay the proceedings. In doing so, the court considered the factors set out in section 20(4) of the Act, including the interests of the parties and the interests of justice. The court concluded that, while there was a common law for Australia, the interests of justice would be best served by not staying the proceedings. The court found that litigating in the Dust Diseases Tribunal would be quicker and cheaper than recommencing proceedings in an alternate jurisdiction, and that the proceedings were not stayed.

Orders