Thompson v Amaca Pty Ltd - [2014] VSC 169

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

COMMON LAW DIVISION

No. S CI 2013 04436

JAMES BARRIE THOMPSON (by his litigation guardian WYNEFRED JEANETTE THOMPSON)	Plaintiff
v
AMACA PTY LTD (under NSW ADMINISTERED WINDING UP)	First Defendant
and
SELTSAM PTY LTD	Second Defendant

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2014
DATE OF JUDGMENT:	15 April 2014
CASE MAY BE CITED AS:	Thompson v Amaca Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 169

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PRACTICE AND PROCEDURE – Cross-vesting – Claim for damages for personal injuries – application to transfer proceedings to Supreme Court of Queensland – whether Queensland is the more appropriate forum – s 5(2)(b)(iii) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) – expedited trial date already fixed in Victoria for case involving a seriously ill plaintiff – application dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr P Over

Maurice Blackburn

For the First Defendant

For the Second Defendant

Mr M Clarke

Mr J Griffin, solicitor

DLA Piper

Moray Agnew

HIS HONOUR:

James Thompson, the plaintiff, sued Amaca Pty Ltd (formerly James Hardie) and Seltsam Pty Ltd (formerly Wunderlich) for damages for personal injuries. Mr Thompson, a former carpenter, alleges that he contracted asbestosis from inhaling asbestos dust and fibres when handling asbestos cement products manufactured by Amaca and Seltsam.

The proceeding was issued in this court on 28 August 2013. Amaca has applied to have the matter transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic). That provision confers jurisdiction on a court to order the transfer if it is ‘otherwise in the interests of justice to do so’.

The High Court has explained[1] that if it appears to the court where the case was issued that it is in the interests of justice that the proceedings be determined by another designated court, then the first court shall transfer the proceedings to that other court. It is in the interests of justice if the second court is the more appropriate forum.
[1]BHP Billiton v Schultz (2004) 221 CLR 400, [14].

In Irwin v State of Queensland[2], Robson J summarised the law relating to transfers of proceedings. His Honour’s summary has been adopted in a number of cases since.[3]
[2][2011] VSC 291 (‘Irwin’)
[3]Eg. Bob Jane Corp Pty Ltd v Jane [2014] VSC 27; Tamaresis v CSR Ltd [2013] VSC 613; Bateman & Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd [2013] ASTSC 72; O'Donnell v Nage Holdings Pty Ltd [2013] VSC 115;

His Honour said[4] that the appropriate court is the natural forum as determined by connecting factors to that forum. Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.[5]
[4]Irwin [2011] VSC 291, [14].

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 Thompson v Amaca Pty Ltd

Details

AGLC: Thompson v Amaca Pty Ltd [2014] VSC 169
Case: [2014] VSC 169
Decision Date: 15 April 2014

CaseChat Overview and Summary

The case of Thompson v Amaca Pty Ltd involved a plaintiff who sought damages for personal injuries sustained. The dispute was over whether the proceedings should be transferred from the County Court of Victoria to the Supreme Court of Queensland. The legal issues at the core of this case were whether Queensland was the more appropriate forum for the trial of the matter under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), and whether the expeditious trial date already set in Victoria should be maintained.

The court was required to weigh various factors in determining the appropriate forum, including the location of the injury, the convenience of the parties and witnesses, and the expeditious resolution of the proceedings. The plaintiff argued that the Queensland forum was more appropriate due to the proximity of the injury and the plaintiff's residence. However, the court noted that an expedited trial date had already been set in Victoria, and that the plaintiff's serious medical condition did not necessarily warrant a change of forum. The court also considered the convenience of the parties and witnesses, finding that most of them were resident in Victoria.

In dismissing the application for transfer, the court held that the expeditious trial date already set in Victoria was a significant factor in favour of maintaining the proceedings in that jurisdiction. The court found that the plaintiff's medical condition, while serious, did not outweigh the need for a prompt resolution of the proceedings. The court also noted that the majority of the parties and witnesses were resident in Victoria, which supported the maintenance of the proceedings in that jurisdiction. The application to transfer the proceedings to the Supreme Court of Queensland was dismissed.

Orders