BHP Billiton Limited v Schultz & ors [2002] NSWSC 981

New South Wales Supreme Court

CITATION : BHP Billiton Limited v Schultz & ors [2002] NSWSC 981 FILE NUMBER(S) : SC 12275/02 HEARING DATE(S) : 16 October 2002 JUDGMENT DATE : 22 October 2002

BHP Billiton Limited Trevor John Schultz PARTIES : Wallaby Grip Limited Wallaby Grip (BAE) Pty Ltd (in liquidation) Wallaby Grip (NSW) Pty Ltd (in liquidation) Amaca Pty Ltd (formerly James Hardie & Co. Pty Ltd.) JUDGMENT OF : Sully J at 1

COUNSEL : F.M. Douglas QC/T.G.R. Parker - Plaintiff J.L. Sharpe - 1st Defendant SOLICITORS : Piper Alderman - Plaintiff Turner Freeman - Defendants LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Dust Diseases Tribunal Act 1989 (NSW) CASES CITED : Broken Hill Pty Co Ltd v Zunic (2001) 22 NSWCCR 92 DECISION : Summons dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

Tuesday 22 October 2002

12275/02 BHP BILLITON LIMITED v SCHULTZ & ORS

JUDGMENT

1 SULLY J: By a summons filed on 16 August 2002 BHP Billiton Limited, ("the plaintiff"), seeks an order, pursuant to section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that certain proceedings pending in the Dust Diseases Tribunal of New South Wales, ("the Tribunal"), be removed into the Common Law Division of this Court; and, should such an order be made, then a further order pursuant to section 5(2)(b)(iii) of the same Act transferring those proceedings to the Supreme Court of South Australia. The summons, in its original form, cites four named defendants. At the hearing on 16 October, the plaintiff filed in Court by leave an amended summons adding a fifth defendant. There is no other change made by the amended summons to the summons in its original form. 2 The first named defendant is Mr. Trevor John Schultz. Mr. Schultz is the plaintiff in the proceedings now current in the Tribunal. The second, third and fourth named defendants are three related companies named, respectively, Wallaby Grip Limited, Wallaby Grip (BAE) Pty Ltd (In Liquidation), and Wallaby Grip (NSW) Pty Ltd (In Liquidation). The recently added fifth defendant is Amaca Pty Limited (formerly James Hardie & Co Pty Limited). 3 On 2 October 2002 the second, third and fourth defendants filed submitting appearances. On 14 October 2002 the fifth defendant notified by facsimile transmission an appearance submitting "to the making of all orders sought and giving of entry of judgment in respect of all claims made in these proceedings, save as to costs". I take this to be intended as a submitting appearance.