Wallaby Grip Ltd v Key

[2015] NSWSC 699

Supreme Court

New South Wales

Medium Neutral Citation:

Wallaby Grip Ltd v Key [2015] NSWSC 699

Hearing dates:

3 June 2015

Date of orders:

03 June 2015

Decision date:

03 June 2015

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Order pursuant to section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that proceedings number 20 of 2015 pending in the Dust Diseases Tribunal of New South Wales commenced by Mr Peter Fredrick Key against Amaca Pty Limited (under NSW administered winding up) (formerly James Hardie & Coy Pty Ltd) to which Amaca Pty Limited (under NSW administered winding up) (formerly James Hardie & Coy Pty Ltd) then filed a cross-claim, statement of cross-claim against CSR Limited, Wallaby Grip Limited, Wallaby Grip (NSW) Pty Limited (in liquidation) and Wallaby Grip (BAE) Pty Limited (in liquidation) be removed from the Dust Diseases Tribunal of New South Wales into the Common Law Division of this court;

2. Order pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that the Dust Diseases Tribunal proceedings when and if removed into this court be transferred to the Supreme Court of Queensland;

3. No order as to costs to the intent that each party pay their own costs of the proceedings.

Catchwords:

PROCEDURE – proceedings in Dust Diseases Tribunal – settlement with injured worker – cross-claims between three defendants outstanding – application to cross-vest proceedings to Queensland – application not opposed – place of tort is Queensland – injured worker resides in Queensland – all relevant medical practitioners on Queensland – offer by Plaintiff to permit S 25(3) of the Dust Diseases Tribunal Act to be used in Queensland – proceedings removed into Supreme Court and cross-vested to Supreme Court of Queensland

Legislation Cited:

Dust Diseases Tribunal Act 1989 (NSW)
Jurisdiction of Courts (Cross-Vesting) Act 1987

Category:

Procedural and other rulings

Parties:

Wallaby Grip Limited (First Plaintiff)
Wallaby Grip (NSW) Pty Limited (in liquidation) (Second Plaintiff)
Wallaby Grip (BAE) Pty Limited (in liquidation) (Third Plaintiff)
Peter Fredrick Key (First Defendant)
Amaca Pty Limited (under NSW administered winding up) (formerly James Hardie & Coy Pty Ltd) (Second Defendant)
CSR Limited (Third Defendant)

Representation:

Counsel:
C Wearne (Plaintiffs)
Mentioned by C Wearne (First & Second Defendants)
A Konstantinidis (Third Defendant)

Solicitors:
Zambra Legal (Plaintiffs)
Turner Freeman (First Defendant)
Holman Webb (Second Defendant)
CBP Lawyers (Third Defendant)

File Number(s):

2015/123835

Judgment

1. The Plaintiffs seek by summons an order pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act1987 (NSW) that proceedings in the Dust Diseases Tribunal commenced by the First Defendant in these proceedings, Peter Frederick Key, against Amaca, the Plaintiffs herein, and CSR be removed into this Court and thereafter an order under s 5(2)(b)(iii) of the Act that the proceedings be transferred to the Supreme Court of Queensland.

2. The proceedings as between the injured worker and the respondents in the Dusts Diseases Tribunal have settled, and what remains in the proceedings in the Tribunal are cross-claims between those three respondents.

3. The application is consented to by CSR, it is neither opposed nor consented to by Amaca, and Mr Key has no remaining interest in the outcome of the application in any event. Mr Key was joined to this application as a matter of courtesy only

4. The evidence discloses that the place of the tort is fairly clearly Queensland, the worker resides in Queensland and the relevant medical practitioners are in Queensland.

5. One consideration in relation to whether the proceedings should be cross-vested to another jurisdiction in these matters concerns the availability of s 25 of the Dust Diseases Tribunal Act 1989 (NSW). That is a facilitative section that does not have a counterpart in a number of other jurisdictions within Australia.

6. The Plaintiffs on this summons have offered to the other Defendants the availability of using s 25 of that Act, notwithstanding that the proceedings are cross-vested to Queensland. However the evidence from the Plaintiffs discloses that there is a similar rule in Queensland, but one which is said to be more general, and would likely cover similar matters to those covered by s 25 of the New South Wales Act. The matter might have been a significant consideration, in the absence of any opposition to the cross-vesting, because of the conflict of authority in relation to whether s 25(3) is a substantive or a procedural provision.

7. I am satisfied that if the proceedings were in this Court it is appropriate that they be cross-vested to Queensland because of the clear relationship between the issues in the matter and the jurisdiction of Queensland. Accordingly, orders should be made to bring the proceedings from the Dust Diseases Tribunal into this Court to enable such cross-vesting to occur.

8. For those reasons I make orders in terms of paras 1 and 2 of the Summons filed 27 April 2015.

9. I make no order as to costs to the intent that each party pays their own costs of these present proceedings.

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Decision last updated: 03 June 2015