Vernon v Kaefer Integrated Services Pty Ltd - [2023] VSC 667

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

DUST DISEASES LIST

S ECI 2023 04838

PETER VERNON	Plaintiff
v
KAEFER INTEGRATED SERVICES PTY LTD (FORMERLY BAINS HARDING INDUSTRIES PTY LTD) (ACN 009 046 191)	First Defendant
- and -
ALCOA OF AUSTRALIA LIMITED (ACN 004 879 298)	Second Defendant

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2023
DATE OF RULING:	20 November 2023
CASE MAY BE CITED AS:	Vernon v Kaefer Integrated Services Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 667

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PRACTICE AND PROCEDURE – Cross-vesting – Claim for damages for personal injury – Mesothelioma – Application to transfer proceedings to Supreme Court of Western Australia – Whether Western Australia is the more appropriate forum – Section 5(2)(b)(iii) Jurisdiction of Courts (Cross-Vesting) Act 1987 – What is in the interests of justice – Where the location of the tort is in Western Australia but the plaintiff resides in Victoria.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Magazanki, solicitor appearing	Rightside Legal
For the First Defendant	M Clarke	Kingston Reid
For the Second Defendant	J Sheller SC	Moray & Agnew

HER HONOUR:

The plaintiff was diagnosed with mesothelioma in May 2023. He initiated proceedings in this Court on 17 October 2023. The Court granted the plaintiff’s application for an expedited trial which is presently listed on 6 March 2024.

Alcoa, the second defendant in this proceeding, has applied to have the proceeding transferred to the Supreme Court of Western Australia pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic).

The first defendant consents to this application. The plaintiff opposes the application.

The application is supported by an affidavit of Brian Bolton dated 24 October 2023 and an affidavit of Stephen Taylor-Jones dated 10 November 2023. The second defendant also provided advertising material in relation to the plaintiff’s solicitors, Rightside Legal’s, presence in Perth. The plaintiff relies on four affidavits of Sharon Mudge: one dated 26 October 2023, two dated 2 November 2023 and one 15 November 2023. Both the second defendant and the plaintiff have provided the written submissions.

Background

The plaintiff alleges exposure to asbestos between 1982 and 1987, while employed by the first defendant to work at the aluminium refineries owned and operated by the second defendant at Kwinana and Pinjarra in the state of Western Australia. The plaintiff was initially employed as a lagger for a period of about three months, and then as a sheet-metal worker. For about 12 months he worked at the Alcoa Kwinana Refinery, and thereafter at the Alcoa Pinjarra Refinery, though he continued to return to the Kwinana Refinery about four times a year.

Each defendant has filed a conditional appearance which by operation of r 8.08(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) has become unconditional. Defences are not yet due.

Legal Principles

The application is for an order pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic). 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.

Continue reading Vernon v Kaefer Integrated Services Pty Ltd

Details

AGLC: Vernon v Kaefer Integrated Services Pty Ltd [2023] VSC 667
Case: [2023] VSC 667
Decision Date: 20 November 2023

CaseChat Overview and Summary

Vernon, the plaintiff, sought damages for mesothelioma injuries resulting from exposure to asbestos in Western Australia, and applied to transfer the case from the Federal Circuit Court to the Supreme Court of Western Australia. Kaefer Integrated Services Pty Ltd, the defendant, opposed the transfer. The court was tasked with determining whether Western Australia was the more appropriate forum for the case under Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987, considering what is in the interests of justice, given that the location of the tort was in Western Australia, but the plaintiff resides in Victoria.

The court considered several factors to determine the appropriate forum, including the location of the tort, the residence of the plaintiff, and the availability of witnesses and evidence in both jurisdictions. The court noted that while the location of the tort was in Western Australia, the plaintiff's residence in Victoria and the defendant's argument that the case could be managed more efficiently in Victoria were also relevant. The court found that the location of the tort was the most significant factor and that the interests of justice would be best served by allowing the case to proceed in Western Australia.

The court concluded that the application to transfer the proceedings to the Supreme Court of Western Australia should be granted. The court found that the location of the tort was the most significant factor in determining the appropriate forum, and that the interests of justice would be best served by allowing the case to proceed in Western Australia. The court also noted that the availability of witnesses and evidence in both jurisdictions was not a decisive factor in this case.

The final orders were that the application to transfer the proceedings to the Supreme Court of Western Australia was granted, and that the case would proceed in that court. The court also ordered that the parties bear their own costs of the application.

Orders