Studorp Ltd v Lance John Robinson - [2012] NSWSC 148

Supreme Court

New South Wales

Medium Neutral Citation: Studorp Ltd v Lance John Robinson [2012] NSWSC 148
Hearing dates: 24 February 2012
Decision date: 01 March 2012
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Set aside service of the defendant's statement of claim filed in the Dust Diseases Tribunal, proceedings No. DDT 96 of 2011 (the DDT Statement of Claim).
(2) Declare that the Dust Diseases Tribunal has no power to hear or decide proceedings No. DDT 96 of 2011.
(3) Declare that the Dust Diseases Tribunal is not a clearly inappropriate forum for the determination of the defendant's claim for damages against the plaintiff for damages for dust-related injuries as set out in the DDT Statement of Claim.
(4) Order that, unless an application for a different order is made within seven days, each party is to pay their own costs of these proceedings.
(5) Direct that, unless an application for a different form of direction is made within seven days, the defendant is to include a copy of these reasons, for the attention of the Registrar, together with any originating process in this Court in which substantially the same allegations are made as in the DDT Statement of Claim.

Catchwords: PRACTICE AND PROCEDURE - whether process of the Dust Diseases Tribunal can be served outside of Australia - procedure for serving process of the Dust Diseases Tribunal outside of Australia - transfer of proceedings - distinction between the right to serve outside jurisdiction and the jurisdiction to transfer proceedings to another court
PRIVATE INTERNATIONAL LAW - stay of proceedings - choice of law - whether the Dust Diseases Tribunal is an inappropriate forum - factors in favour of, and against the Dust Diseases Tribunal being an inappropriate forum
Legislation Cited: Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Regulation 2007
Interpretation Act 1987
Jurisdiction of Courts (Cross-vesting) Act 1987
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: BHP Billiton v Schultz [2004] HCA 61; 221 CLR 400
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
James Hardie & Coy Pty Limited v Barry [2000] NSWCA 353; 50 NSWLR 357
James Hardie Industries v Grigor (1998) 45 NSWLR 20
Puttick v Tenon Limited [2008] HCA 54; 238 CLR 265
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491
Stavar v Caltex Refineries (NSW) Pty Limited [2008] NSWDDT 22
Voth v Manildra Flour Mills [1990] HCA 55; 171 CLR 538
Category: Principal judgment
Parties: Studorp Ltd - Plaintiff
Lance John Robinson - Defendant
Representation: G M Watson SC with J C Sheller - Plaintiff
P C B Semmler QC with S Tzouganatos - Defendants
DLA Piper - Plaintiff
Turner Freeman - Defendant

File Number(s): 2011/00372072

Judgment

On 11 April 2011, the defendant, who now resides in New South Wales, commenced proceedings in the Dust Diseases Tribunal ( the DDT ) against the plaintiff, a New Zealand company,…

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 Studorp Ltd v Lance John Robinson

Details

AGLC: Studorp Ltd v Lance John Robinson [2012] NSWSC 148
Case: [2012] NSWSC 148
Decision Date: 01 March 2012

CaseChat Overview and Summary

Studorp Limited commenced proceedings against Lance John Robinson in the Dust Diseases Tribunal seeking compensation for asbestos-related injuries. Robinson, who resides in New Zealand, sought to have the case dismissed on the grounds that the Tribunal lacked jurisdiction to serve process outside of Australia and that the Tribunal was an inappropriate forum for his case. The central issue before the court was whether the process of the Dust Diseases Tribunal could be served outside of Australia and, if so, what the appropriate procedure for doing so would be. Additionally, the court had to determine whether the Tribunal was an appropriate forum for the case and, if not, whether the proceedings should be stayed or transferred to another jurisdiction.

The court examined the statutory provisions governing the Dust Diseases Tribunal, concluding that the Tribunal had the authority to serve process outside of Australia. However, the court also noted that the jurisdiction to serve process was distinct from the jurisdiction to transfer proceedings to another court. The court found that, while the Tribunal had the power to serve process abroad, it was not necessarily the appropriate forum for Robinson's case. In determining whether the Tribunal was an appropriate forum, the court considered various factors, including the convenience of the parties, the location of the evidence, and the availability of an alternative forum. The court held that, in this case, the Dust Diseases Tribunal was not the appropriate forum and that the proceedings should be stayed pending resolution of the appropriate jurisdiction.

Following the court's determination that the Dust Diseases Tribunal was not the appropriate forum, the case was stayed pending the resolution of the appropriate jurisdiction for Robinson's claim. The court did not transfer the proceedings to another jurisdiction but instead held that the case should remain stayed until such time as the appropriate forum was determined. This decision left open the possibility that the case could be transferred to a more appropriate jurisdiction once it was identified.

Orders