Reported Decision: [2000] 50 NSWLR 357
[2000] NSWCCR 150
New South Wales
Court of Appeal
CITATION: JAMES HARDIE & COY PTY LTD v BARRY & ANOR; SELTSAM PTY LTD V BARRY & ANOR [2000] NSWCA 353 revised - 2/05/2001 FILE NUMBER(S): CA 40600/00; 40599/00 HEARING DATE(S): 24, 25 August 2000 JUDGMENT DATE:
4 December 2000PARTIES :
JAMES HARDIE & COY PTY LTD v Thomas Joseph BARRY & Anor;
SELTSAM PTY LTD v Thomas Joseph BARRY & AnorJUDGMENT OF: Spigelman CJ at 1; Mason P at 22; Priestley JA at 119
LOWER COURT JURISDICTION : Proceedings removed from Common Law Division LOWER COURT
FILE NUMBER(S) :LOWER COURT
JUDICIAL OFFICER :
COUNSEL: FM Douglas QC/D Graham (Hardie)
J Fernon (Seltsam)
S Gageler (Barry)
M Sexton QC / N Abadee/(A.G. Intervener)SOLICITORS: Allen Allen & Hemsley (Hardie)
Toomey Pegg Drevikovsky (Seltsam)
Slater & Gordon (Barry)
I V Knight, State Crown Solicitor (Intervener)CATCHWORDS: Transfer of proceedings - plaintiff a resident of Queensland and pleads causes of action that include torts that occurred in Queensland - applications for transfer of proceeding under Jurisdiction of Courts (Cross-vesting) Act 1987 (the Cross-vesting Act) from Dust Diseases Tribunal to Supreme Court of Queensland - choice of law - sections 12A, 25(3), 25A and s25B Dust Diseases Tribunal Act 1989 (the DDT Act) - plaintiff seeks to rely upon ss 25(3) and 25B DDT Act to take advantage of evidence tendered and findings made in earlier matter - operation of ss8(1)(b)(ii) and 5(2)(b)(iii) Cross-vesting Act - Supreme Court has jurisdiction to remove and transfer to Queensland a proceeding pending in Tribunal under Cross-vesting Act - ss10 and 11 DDT Act - Tribunal itself lacks jurisdiction to transfer matter - cross-vesting scheme operates independently of High Court’s forum non conveniens doctrine - Constitution s118 - "interests of justice" in s5(2)(b)(iii) Cross-vesting Act - matters to be taken into account in deciding "more appropriate" forum - plaintiff’s choice of Tribunal and reasons for it are relevant considerations in determining forum - whether onus should rest on applicant for transfer of proceedings - proceeding in Tribunal unlikely to exceed four hearing days compared to weeks in proposed transferee court - unique procedural powers of the Tribunal relevant and significant in task of determining more appropriate forum - "interests of justice" favouring refusal of transfer - applications dismissed with costs. (D) DECISION: Applications dismissed.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40600/00
CA 40599/00
SPIGELMAN CJ
MASON P
PRIESTLEY JA
Monday 4 December 2000
JAMES HARDIE & COY PTY LTD v Thomas Joseph BARRY & Anor
SELTSAM PTY LTD v Thomas Joseph BARRY & Anor
Two applications in the Common Law Division of the Supreme Court were removed into the Court of Appeal. Barry, who was the first defendant in each application, was the plaintiff in a proceeding commenced in the Dust Diseases Tribunal (the Tribunal) against James Hardie & Coy Pty Ltd (James Hardie) and Seltsam Pty Ltd. Each company filed a summons in…
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Details
- Case
- [2000] NSWCA 353
- Decision Date
CaseChat Overview and Summary
The plaintiff, a resident of Queensland, commenced proceedings in the Dust Diseases Tribunal of New South Wales, alleging tortious conduct that occurred in Queensland. The defendant, James Hardie & Coy Pty Ltd, applied to the Supreme Court of Queensland for the transfer of these proceedings from the Dust Diseases Tribunal to the Supreme Court of Queensland, pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the State of Queensland’s equivalent legislation. The plaintiff sought to rely on specific provisions of the Dust Diseases Tribunal Act 1989 (NSW) to leverage evidence and findings from a prior proceeding.
The central legal issues before the Supreme Court of Queensland were whether it possessed the jurisdiction to remove and transfer the proceeding from the Dust Diseases Tribunal to the Supreme Court of Queensland under the cross-vesting legislation, and if so, whether it was in the interests of justice to do so. This involved considering the operation of sections 8(1)(b)(ii) and 5(2)(b)(iii) of the Cross-vesting Act, the specific jurisdictional limitations of the Dust Diseases Tribunal regarding transfers under sections 10 and 11 of its governing Act, and the application of the "interests of justice" test in determining the more appropriate forum, independent of the common law doctrine of forum non conveniens.
The Court determined that the Supreme Court of Queensland did have jurisdiction to transfer the proceeding under the cross-vesting scheme, which operates independently of the Dust Diseases Tribunal's own limited transfer powers. In assessing the "interests of justice" under section 5(2)(b)(iii) of the Cross-vesting Act, the Court considered various factors, including the plaintiff's choice of forum and the reasons for that choice, the relative efficiency of the proceedings in each forum, and the unique procedural advantages offered by the Dust Diseases Tribunal. The Court found that the prospect of the proceeding concluding within approximately four hearing days in the Tribunal, compared to potentially several weeks in the Supreme Court of Queensland, along with the Tribunal's specialised powers, weighed heavily in favour of retaining the proceedings in the Tribunal.
Consequently, the applications for transfer were dismissed, with costs awarded to the plaintiff.
The central legal issues before the Supreme Court of Queensland were whether it possessed the jurisdiction to remove and transfer the proceeding from the Dust Diseases Tribunal to the Supreme Court of Queensland under the cross-vesting legislation, and if so, whether it was in the interests of justice to do so. This involved considering the operation of sections 8(1)(b)(ii) and 5(2)(b)(iii) of the Cross-vesting Act, the specific jurisdictional limitations of the Dust Diseases Tribunal regarding transfers under sections 10 and 11 of its governing Act, and the application of the "interests of justice" test in determining the more appropriate forum, independent of the common law doctrine of forum non conveniens.
The Court determined that the Supreme Court of Queensland did have jurisdiction to transfer the proceeding under the cross-vesting scheme, which operates independently of the Dust Diseases Tribunal's own limited transfer powers. In assessing the "interests of justice" under section 5(2)(b)(iii) of the Cross-vesting Act, the Court considered various factors, including the plaintiff's choice of forum and the reasons for that choice, the relative efficiency of the proceedings in each forum, and the unique procedural advantages offered by the Dust Diseases Tribunal. The Court found that the prospect of the proceeding concluding within approximately four hearing days in the Tribunal, compared to potentially several weeks in the Supreme Court of Queensland, along with the Tribunal's specialised powers, weighed heavily in favour of retaining the proceedings in the Tribunal.
Consequently, the applications for transfer were dismissed, with costs awarded to the plaintiff.
Orders
Orders of the court
Applications dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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