Petterson v Amaca Pty Ltd - [2017] VSC 134

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

DUST DISEASES LIST

S CI 2016 04577

JENNIFER PETTERSON	Plaintiff
v
AMACA PTY LTD (formerly known as JAMES HARDIE & CO PTY LTD)	Defendant

---

JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2017
DATE OF RULING:	24 March 2017
CASE MAY BE CITED AS:	Petterson v Amaca Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 134

---

PRACTICE AND PROCEDURE – Cross-vesting application – Interests of justice – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – Application to transfer proceedings from Supreme Court of Victoria to Supreme Court of Queensland – Whether Queensland is more appropriate forum – Case involving a seriously ill plaintiff – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Wilson QC with Mr A Pillay	Melbourne Injury Lawyers
For the Defendant	Mr D Wallis	Mills Oakley

HER HONOUR:

Introduction

The defendant seeks to transfer this proceeding to the Supreme Court of Queensland pursuant to the Jurisdiction of the Courts (Cross-Vesting) Act 1987 (Cth). The plaintiff opposes the application.

For the reasons below, the Court will dismiss the application.

Background

On 9 November 2016, the plaintiff commenced this proceeding in this Court by filing a writ and statement of claim in the Dust Diseases List of the Common Law Division. Her claim is in negligence.

The plaintiff alleges that between approximately the early 1960s until approximately 1971 she was exposed to asbestos dust, particles and fibres at her family’s farming property in Katamatite in Victoria. She claims that she was in close proximity to her father as he cut, sanded and rasped James Hardie asbestos sheets to construct a kitchen, veranda and laundry at their property. Further, that she played in the area of the residual dust and fibres, including playing with offcuts, and was in close proximity to her mother when she swept the area where her father had cut, sanded and rasped the James Hardie sheets. The plaintiff alleges that she played in and around the outhouses of the property that included buildings constructed from James Hardie asbestos sheets, and brushed up and fractured the asbestos sheets in the course of ball games and other playing activities, and then played with the broken asbestos sheets.

The defendant is alleged to have manufactured and sold or supplied the asbestos sheets that were the source of the asbestos dust and fibres. The plaintiff says she suffered loss and damage, in particular, that she has mesothelioma, dyspnoea, nervous shock and anxiety.

The defendant denies that it is negligent. It admits it manufactured, supplied and distributed building products containing asbestos at various times in the State of Victoria. It does not admit that the plaintiff was exposed to and inhaled the asbestos dust particles and fibres.[1]
[1]Defence filed 19 January 2017.

On 6 January 2017, the plaintiff was examined by Dr Robert L. Edwards, a thoracic and sleep physician, for the purposes of a medico-legal report. Dr Edwards’ report dated…

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 Petterson v Amaca Pty Ltd

Details

AGLC: Petterson v Amaca Pty Ltd [2017] VSC 134
Case: [2017] VSC 134
Decision Date: 24 March 2017

CaseChat Overview and Summary

Petterson brought an action against Amaca in the Supreme Court of Victoria, seeking compensation for injuries sustained in a car accident that occurred in Queensland. The plaintiff, who was seriously ill, sought to have the proceedings transferred to the Supreme Court of Queensland under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The defendant opposed the transfer, arguing that the interests of justice did not favour relocating the proceedings.

The court was required to determine whether the interests of justice would be served by transferring the matter from Victoria to Queensland. This involved assessing the practicalities and considerations that would influence the efficient and just resolution of the case. Factors considered by the court included the plaintiff's health, the availability of witnesses, and the location of relevant documents. The court also had to weigh the potential inconvenience and expense to the parties and witnesses of having the case heard in a different jurisdiction.

After evaluating the circumstances, the court concluded that the interests of justice did not favour transferring the proceedings to Queensland. The plaintiff's health was a critical factor, as the court found that the potential burden on the plaintiff of travelling to Queensland for the trial was significant. Additionally, the court considered the inconvenience and cost to the parties and witnesses of a transfer. The court determined that these factors outweighed the potential benefits of a transfer, and therefore dismissed the application.

The application to transfer the proceedings from the Supreme Court of Victoria to the Supreme Court of Queensland was dismissed. The matter will continue to be heard in Victoria, ensuring that the plaintiff's health and the interests of justice are prioritised.

Orders