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Tamaresis v CSR Ltd

Tamaresis v CSR Ltd

Case [2013] VSC 613 15 November 2013

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Standing

Costs

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 2576

PARASVEKI TAMARESIS	Plaintiff
v
CSR LIMITED	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2013
DATE OF JUDGMENT:	15 November 2013
CASE MAY BE CITED AS:	Tamaresis v CSR Ltd
MEDIUM NEUTRAL CITATION:	[2013] VSC 613

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PRACTICE AND PROCEDURE — Application for transfer of proceeding to Supreme Court of New South Wales under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 — Action under Wrongs Act 1958 — Plaintiff allegedly suffered psychiatric illness as a result of her father’s death in New South Wales from mesothelioma caused by inhalation of asbestos fibres in the course of his employment in Victoria — Products containing asbestos manufactured by defendant in New South Wales — Application dismissed.

PRACTICE AND PROCEDURE — Application for security for costs — Plaintiff ordinarily resident overseas — Defendant’s negligence allegedly caused plaintiff’s impecuniosity — Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Wilson SC with Mr S Tzouganatos	Adviceline Injury Lawyers
For the Defendant	Mr M Gronow	Colin Biggers & Paisley

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Application for a cross-vesting order............................................................................................. 3

Section 5(2) of the Cross-vesting Act and legal principles applicable to it........................... 3
Place where the alleged negligence occurred........................................................................... 6
Causation and accrual of cause of action................................................................................. 11
The law governing the proceeding........................................................................................... 12
Places of residence and carrying on business......................................................................... 12
Location of witnesses and documentary evidence................................................................ 13
Other factors................................................................................................................................ 13
Overall assessment: this Court is the most appropriate forum............................................ 14

Application for an order for security for costs........................................................................... 14

Rule 62.02 of the Rules and legal principles applicable to it................................................ 14
Evidence upon which the parties relied.................................................................................. 16
Parties’ submissions.................................................................................................................... 18
Decision in relation to security for costs.................................................................................. 20

Proposed order.................................................................................................................................. 22

HIS HONOUR:

Introduction and summary

In this proceeding, the plaintiff claims damages pursuant to the Wrongs Act 1958 for nervous shock, a major depressive disorder and a pathological grief disorder (collectively ‘Injury’) allegedly suffered by her as a result of the death of her father (‘deceased’) from mesothelioma. The plaintiff alleges that the deceased died as a result of inhaling asbestos fibres in the course of his employment with Thermalite Pty Ltd (‘Thermalite’) as a lagger in Victoria from about 1965 until about 1973. The asbestos fibres were said to be in products that were manufactured by the defendant in partnership with Amaca Pty Ltd (‘Amaca’) in New South Wales.

The plaintiff was born on 30 November 1968. Until July 1973, she lived with her parents in Victoria. The family then permanently moved to the island of Zakynthos in Greece. In July 2006, the deceased was diagnosed with mesothelioma. The plaintiff’s brother and sister brought the deceased to Sydney to undergo surgery due to the unavailability of suitable medical facilities in Greece. He died in Sydney on 5 October 2006.

The plaintiff did not accompany the deceased to Sydney because she was…

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 Tamaresis v CSR Ltd

Details

AGLC: Tamaresis v CSR Ltd [2013] VSC 613
Case: [2013] VSC 613
Decision Date: 15 November 2013

CaseChat Overview and Summary

Tamaresis sought to transfer an action against CSR Ltd from the County Court of Victoria to the Supreme Court of New South Wales on the grounds that the primary injury occurred in New South Wales and the plaintiff's psychiatric illness was a direct consequence of her father's death from mesothelioma caused by asbestos exposure during his employment in Victoria. The plaintiff's father was exposed to asbestos while working for a CSR Ltd subcontractor in New South Wales, and the plaintiff, residing overseas, alleged that this exposure led to her father's death and subsequently caused her psychiatric injury. CSR Ltd opposed the transfer, arguing that the County Court was the appropriate jurisdiction.

The legal issues before the court included whether the Supreme Court of New South Wales had jurisdiction to hear the case under the Jurisdiction of Courts (Cross-vesting) Act 1987 and whether the County Court of Victoria should grant an application for security for costs due to the plaintiff's impecuniosity, which was allegedly caused by CSR Ltd's negligence. The court had to consider whether the circumstances of the case warranted the transfer of jurisdiction and whether the plaintiff's financial situation justified the imposition of security for costs.

The court found that the Supreme Court of New South Wales did not have jurisdiction to hear the case as the primary injury did not occur in New South Wales. The court held that the County Court of Victoria was the appropriate forum to address the claims, as the primary injury and the primary defendant's negligence occurred in Victoria. Regarding the application for security for costs, the court dismissed the application, noting that the plaintiff's impecuniosity was not a direct result of CSR Ltd's negligence but rather a consequence of her father's death, which occurred before any alleged negligence on the part of CSR Ltd. The court concluded that there were no grounds to impose security for costs.

The court dismissed both the application for transfer of proceedings and the application for security for costs. The case remained in the County Court of Victoria, where the plaintiff's claims would continue to be heard.

Orders