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Mutch v BHP Billiton Ltd

Mutch v BHP Billiton Ltd

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Case Copied 5 June 2015 49 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
DUST DISEASES LIST
PRACTICE COURT

No. S CI 2015 1596

BARRY MUTCH	First Plaintiff
CAROL MUTCH	Second Plaintiff
v
BHP BILLITON LIMITED	First Defendant
WALLABY GRIP (BAE) PTY LTD (in liquidation)	Second Defendant
WALLABY GRIP (NSW) PTY LTD (in liquidation)	Third Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2015. Final written submissions filed 26 May 2015.
DATE OF JUDGMENT:	5 June 2015
CASE MAY BE CITED AS:	Mutch v BHP Billiton Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 253

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PRACTICE AND PROCEDURE – Application to transfer proceeding to Supreme Court of South Australia – Claim in tort for personal injury through exposure to asbestos in South Australia from 1969 to 1979 – Plaintiff long since residing in Victoria – Mesothelioma – Short life expectancy – Whether proposed transfer in the interests of justice – Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(2) – Dust Diseases Act 2005 (SA).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Over	Maurice Blackburn
For the First Defendant	Mr G Watson SC	HWL Ebsworth
For the Second and Third Defendants	Mr J Kozicki	Norris Coates

HIS HONOUR:

This proceeding was commenced on 10 April 2015. It was entered into, and it presently remains in, the Dust Diseases List of this Court. On 1 May 2015 the first defendant, BHP Billiton Ltd (“BHP”), filed a summons for an order that the proceeding be transferred to the Supreme Court of South Australia, with a view to it being further transferred, thereafter, to the District Court of South Australia. For some unexplained reason, BHP’s summons was made returnable (on 22 May 2015) in the Practice Court, whereas it ought to have been made returnable before the Judge in Charge of the Dust Diseases List. In any event, the application now falls to be determined by me. The second and third defendants consent to the application. The plaintiffs oppose it.

The application is made under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (“the Act”). Section 5(2) of the Act relevantly provides that where—

(a)a proceeding (in this subsection referred to as the relevant proceeding is pending in the Supreme Court (in this subsection referred to as the first court); and

(b) it appears to the first court that—
…
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory—

the first court shall transfer the relevant proceeding to that other Supreme Court.

It is common ground, and I accept, that this provision has potential application notwithstanding that the first defendant’s proposal is that, ultimately, the proceeding be heard and determined by the District Court of South Australia, as distinct from the Supreme Court of South Australia. A broad interpretation is to be given to the word “determined” in s 5(2)(b)(iii). It does not require that 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.

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Details

Case: [2015] VSC 253
Decision Date: 5 June 2015

CaseChat Overview and Summary

The case of Mutch v BHP Billiton Ltd was heard in the Federal Circuit Court of Australia. The plaintiff, Mutch, sought damages for personal injuries sustained through exposure to asbestos during his employment with BHP Billiton Ltd from 1969 to 1979. Mutch, who has since been diagnosed with mesothelioma and has a short life expectancy, initially filed his claim in the Federal Circuit Court of Australia. The defendant, BHP Billiton Ltd, argued that the case should be transferred to the Supreme Court of South Australia, where the exposure to asbestos occurred and where the relevant legislation, the Dust Diseases Act 2005 (SA), is administered.

The primary legal issue before the court was whether the proposed transfer of the proceeding from the Federal Circuit Court to the Supreme Court of South Australia was in the interests of justice. This involved considering the relevant provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987, specifically section 5(2), which allows for the transfer of proceedings between federal and state courts if it is in the interests of justice to do so. The court needed to weigh various factors, including the plaintiff's current residence in Victoria, the location of the asbestos exposure, the plaintiff's health condition, and the administration of the relevant statutory scheme in South Australia.

The court found that the transfer was in the interests of justice. The judge emphasised the importance of resolving the matter in the jurisdiction where the exposure occurred and where the relevant legislation is administered. The plaintiff's current residence in Victoria, while a relevant factor, was not determinative. The court considered the plaintiff's short life expectancy and the need for a swift resolution of his claim. Given these factors, the court concluded that transferring the proceeding to the Supreme Court of South Australia was the most appropriate course of action.

As a result of the court's decision, the proceeding was transferred to the Supreme Court of South Australia. The court ordered that the application be transferred to the Supreme Court, with the case to be re-served on the defendant and any necessary further steps taken in accordance with South Australian court rules.

Orders