Wittern v Amaca Pty Ltd - [2016] VSC 40

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
DUST AND DISEASES LIST

S CI 2015 06214

WOLFGANG WITTERN	Plaintiff
v
AMACA PTY LTD (FORMERLY JAMES HARDIE AND COY LTD LTD) (ACN 000 035 512) AND ORS	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2016
DATE OF JUDGMENT:	10 February 2016
CASE MAY BE CITED AS:	Wittern v Amaca Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 40

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PRACTICE AND PROCEDURE – Cross vesting – Claim for damages and personal injuries – Application to transfer proceedings to Supreme Court of South Australia – Whether South Australia is more appropriate – Section 5(2)(iii) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) – Case involving a seriously ill plaintiff – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gordon	Slater & Gordon
For the First Defendant	Mr K O’Brien	DLA Piper
For the Second Defendant	Mr Morell	Colin Biggers & Paisley
For the Third Defendant	Mr P Coats	Minter Ellison
For the Fourth Defendant	Mr D McWilliams	Rosey Batt & Associates

HER HONOUR:

Pursuant to a summons dated 3 February 2016, the first defendant, Amaca Pty Ltd (‘Amaca’) (formerly James Hardie), seeks an order that the proceeding be transferred to the Supreme Court of South Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts Cross-Vesting Act 1987 (Vic) (‘Cross Vesting Act’).

Amaca’s application is supported by the second, third and fourth defendants. It is opposed by the plaintiff, Wolfgang Wittern.

Amaca relies on the affidavits of Kieran John O’Brien, sworn 2 February 2016 and Caroline Mary Knight, affirmed 5 February 2016.

The fourth defendant, FW Hercus Pty Ltd (‘Hercus’) relies on the affidavits of: Rosemary Joy Batt sworn 5 February 2016 and Rebekah Griffith sworn 5 February 2016.

Mr Wittern relies on the affidavit of Michael Magazanik affirmed 5 February 2016.

Amaca and Mr Wittern also rely on written submissions.

Setting of background

Mr Wittern filed a writ on 7 December 2015 and a statement of claim on 29 January 2016.

Mr Wittern has also filed and served a summons dated 29 January 2016 in which he seeks amongst other things a speedy trial. The parties agreed that the cross-vesting application should be determined first. However, there was no issue raised by the defendants in relation to Mr Wittern suffering from mesothelioma and having a significantly reduced life expectancy.

Mr Wittern sues the defendants for damages for personal injury. Mr Wittern, a former electrician, alleges he contracted mesothelioma from inhaling asbestos dust and fibres when handling asbestos products manufactured by Amaca and Seltsam Pty Ltd, formerly Wunderlich, the second defendant (‘Seltsam’), in the course of his employment with the third defendant, Fleet Forge Pty Ltd (‘Fleet Forge’), and Hercus.

Between paragraphs [7] and [20] of Mr Wittern’s statement of claim, it is alleged that:

(a) between 1955 and 1957 Mr Wittern worked as an electrician for Fleet Forge in the State of Victoria (‘Fleet Forge work’);

(b)…

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 Wittern v Amaca Pty Ltd

Details

AGLC: Wittern v Amaca Pty Ltd [2016] VSC 40
Case: [2016] VSC 40
Decision Date: 10 February 2016

CaseChat Overview and Summary

Wittern brought an action against Amaca Pty Ltd seeking damages for personal injuries in the County Court of Victoria. The case involves a plaintiff who was seriously ill, and the application was made to transfer the proceedings to the Supreme Court of South Australia under the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic). The primary legal issue before the court was whether the South Australian Supreme Court was more appropriate than the County Court of Victoria to hear and determine the case, considering the plaintiff’s serious illness and the circumstances of the case.

The court considered the criteria under section 5(2)(iii) of the Act, which allows for the transfer of proceedings to another court if it is satisfied that the other court is more appropriate. The court examined the plaintiff's health and other relevant factors, such as the location of witnesses and evidence, and the efficiency of the proceedings. The court determined that, while the plaintiff's health was a significant factor, it was not the sole determinant of the appropriateness of the venue. The court concluded that the County Court of Victoria was better suited to handle the case given the proximity of the plaintiff’s medical records and other evidence available locally.

The application to transfer the proceedings was dismissed. The court found that the County Court of Victoria was the more appropriate forum to hear and determine the case, taking into account all relevant factors, including the plaintiff's health, the availability of evidence, and the efficiency of the proceedings. The court’s decision underscored the importance of considering the broader context in which cross-vesting applications are made.

Orders