Supreme Court New South Wales Medium Neutral Citation: Amaca Pty Limited v Metro North Hospital and Health Service [2021] NSWSC 895 Hearing dates: On the papers Date of orders: 23 July 2021 Decision date: 23 July 2021 Jurisdiction: Common Law Before: Lonergan J Decision: (1) That proceedings numbered 2020/179204/001 pending in the Dust Diseases Tribunal of New South Wales commenced by the plaintiff be removed to the Common Law Division of this Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). (2) That the Dust Diseases Tribunal proceedings be transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). Catchwords: CROSS VESTING – Jurisdiction of Courts (Cross-Vesting) Act 1987 – application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to be transferred to the Supreme Court of Queensland – interests of justice - consent orders made Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Cases Cited: BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 Category: Principal judgment Parties: Amaca Pty Limited (Plaintiff) Metro North Hospital and Health Service (First Defendant) The State of Queensland (Second Defendant) Wallaby Grip (BAE) Pty Limited (in liq) (Third Defendant) CSR Limited (Fourth Defendant) Representation: Counsel: J Sheller SC (Plaintiff) Solicitors: Holman Webb Lawyers (Plaintiff) File Number(s): 2021/00167110 Publication restriction: Nil Judgment 1. The plaintiff, Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) pursuant to its summons filed on 10 June 2021 seeks the following orders: 1. That proceedings numbered 2020/179204/001 pending in the Dust Diseases Tribunal of New South Wales commenced by the plaintiff be removed to the Common Law Division of this Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). 2. That the Dust Diseases Tribunal proceedings (when and if removed into this Court) be transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). 1. The orders are consented to by all of the defendants. Background 1. The plaintiff was the defendant in proceedings commenced in the Dust Diseases Tribunal by Mr Donald Maslen. Mr Maslen, by Statement of Claim filed in the Dust Diseases Tribunal on 12 December 2019, alleged that he was exposed to asbestos dust and fibre containing products manufactured and supplied by the plaintiff in both New South Wales and Queensland in the period 1967 to 1983. 2. Mr Maslen's case against the plaintiff has settled. 3. The plaintiff filed a Statement of Cross-Claim on 11 March 2020 in which it sought contribution in respect of its liability to Mr Maslen. 4. The defendants in these proceedings, Metro North Hospital and Health Service, the State of Queensland and CSR Limited are the Cross-Defendants to the plaintiff's Cross-Claim. 5. The claim against the defendants is in connection with Mr Maslen's exposure in Queensland. Legislation and applicable principles 1. The plaintiff's application under s 8 of the Jurisdiction of Court (Cross-Vesting) Act 1987 (Cth) (the Act) depends upon whether it is in the interest of justice within the meaning of s 5(2)(b)(ii) of the Act that the tribunal proceedings be determined in the Supreme Court of Queensland. 2. Section 5(2) of the Act provides: 5 Transfer of proceedings … (2) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court, (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory, (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and (C) the interests of justice, it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court. 1. Section 8 of the Act provides: 8 Orders by Supreme Court (1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in: (i) a court, other than the Supreme Court, of the State, or (ii) a tribunal established by or under an Act, and (b) it appears to the Supreme Court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court, or (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court. (2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court. (3) Where a proceeding is removed to the Supreme Court in accordance with an order made under subsection (1), the Supreme Court may, if the Supreme Court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed. … 1. The relevant principles to be drawn from the cases are accurately and helpfully set out in the plaintiff's written submissions: "In BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 the High Court considered s 5 of the Act and stated at [14]: "…There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly appropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate." and in James Hardie & Coy Pty Ltd v Barry [2000] 50 NSWLR 357 at 361 [7], Spigelman CJ held: "…To determine which court is, in the interest of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of that tort. Indeed, in the context of administering the cooperative national scheme in the Jurisdiction of Court (Cross-Vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of "appropriate court", although other factors may need to be assessed in the process of determining where the interests of justice lie." Factors bearing on transfer to Queensland: Plaintiff's submissions 1. The plaintiff submits that it is in the interests of justice, within the meaning of s 5(2)(b)(iii) of the Act, that the tribunal proceedings be determined in the Supreme Court of Queensland for the following reasons. 2. First, there is no substantial connection with New South Wales. The Cross-Claim arises out of events that occurred exclusively in Queensland as set out in pars 14 to 21 of the affidavit of Mr Mark Victorsen sworn 10 June 2021. 3. Second, in determining the defendants' liability in the contribution proceedings, it is anticipated that the witnesses who will be called reside an hour and a half from the Brisbane Supreme Court. All lay witnesses and treating specialists for both Mr and Mrs Maslen who are likely to be called in the contribution proceedings, reside in Queensland. 4. Third, the governing law to be applied will be Queensland law, both statutory and common law. 5. Fourth, there is no compelling reason for the matter to remain in New South Wales. Decision 1. The Supreme Court of Queensland is undoubtedly the more appropriate forum for determination of the contribution proceedings given that the governing law is the law of Queensland, there is no natural connection to New South Wales, the parties, the witnesses, and most of the legal representatives have a more significant connection to Queensland, there is no reason for the matter to remain in New South Wales and there is no opposition to the transfer; indeed all parties consent. It is in the interests of justice that the proceedings be transferred in the manner sought. Orders 1. I make the following orders: 1. That proceedings numbered 2020/179204/001 pending in the Dust Diseases Tribunal of New South Wales commenced by the plaintiff be removed to the Common Law Division of this Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). 2. That the Dust Diseases Tribunal proceedings be transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2021