James Hardie & Coy Pty Ltd v Barry

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.