Seltsam Pty Limited v Owenby [2017] NSWSC 393

Supreme Court New South Wales

Medium Neutral Citation: Seltsam Pty Limited v Owenby [2017] NSWSC 393 Hearing dates: 7 April 2017 Decision date: 07 April 2017 Jurisdiction: Common Law Before: Adamson J Decision: 1. An order that Proceedings No 272 of 2016 and 272 of 2016/1 in the Dust Diseases Tribunal of NSW (DDT Proceedings) be removed from the Dust Diseases Tribunal into the Common Law Division of the Supreme Court of NSW pursuant to Section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

2. An order that the proceedings referred to in paragraph 1 above be transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

3. The costs of the DDT Proceedings be costs in the cause to the extent those costs relate to documents, matters or particulars which are necessary and relevant for the conduct of the Supreme Court of Queensland proceedings.

4. No order as to costs. Catchwords: PRACTICE AND PROCEDURE – Cross-vesting - proceedings commenced in NSW Dust Diseases Tribunal - transfer of proceedings from Dust Diseases Tribunal to Supreme Court of New South Wales -transfer of proceedings from Supreme Court of New South Wales to Supreme Court of Queensland – held transfer to Supreme Court of Queensland in the interests of justice Category: Procedural and other rulings Parties: Seltsam P/L File Number(s): 2017/75315

Judgment: EX TEMPORE 1. By summons filed on 10 March 2017, Seltsam Pty Limited seeks orders, against Victor Eroshkin and Amica Pty Limited, for the removal of proceedings from the Dust Diseases Tribunal into the Common Law Division of this Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) and the transfer of the proceedings to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act. 2. The plaintiff relies on the affidavit of Adrian Konstantinidis of 10 March 2017. Mr Konstantinidis deposes that proceedings were commenced in the Dust Diseases Tribunal on about 24 October 2016. The plaintiff in those proceedings, Mr Eroshkin, died on 26 December 2016, as a result of which Kearns J made an order substituting Mr Eroshkin's estate as a party. 3. Mr Konstantinidis deposes in the affidavit that the estate has alleged that the deceased suffered and died from mesothelioma as a result of being exposed to asbestos dust and fibre emanating from asbestos cement building materials whilst working at various businesses located in Queensland. Although Mr Eroshkin also worked as a plumber in Sydney for six months in 1969, and it is possible that he had some very minor exposure to asbestos during this work, no defendant has been joined in the Dust Diseases Tribunal in respect of this period of work in New South Wales. 4. Mr Konstantinidis deposes that, if there are any issues of fact pertaining to the deceased's exposure to asbestos, he believes that it is likely that those witnesses will reside in Queensland. He has also deposed that there are other matters which make the Supreme Court of Queensland a more appropriate forum. He submitted that, having regard to the deceased's death, there is no urgency in the matter which would make the Dust Diseases Tribunal of New South Wales a preferable forum for the matter to be determined. I note that the defendants to the summons both consent to the orders sought. 5. I am satisfied that it is appropriate to order under s 8 of the Jurisdiction of Courts (Cross-Vesting) Act that the proceedings in the Dust Diseases Tribunal be removed into this court. It also appears to me under s 5(2) of the Act that it is in the interests of justice that the relevant proceedings, which I have just removed into this court, be determined by the Supreme Court of Queensland and, accordingly, that it is appropriate that they be transferred to that Court. 6. The orders sought, which I understand to be by consent and have been signed by the parties, have been helpfully set out in a short minute of order which has been handed to me today. 7. Accordingly, it is sufficient to say that I make orders in terms of the short minutes of order which have been signed by the parties and which I will sign, and date, and have placed on the court file. 8. Orders: 1. An order that Proceedings No 272 of 2016 and 272 of 2016/1 in the Dust Diseases Tribunal of NSW (DDT Proceedings) be removed from the Dust Diseases Tribunal into the Common Law Division of the Supreme Court of NSW pursuant to Section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987. 2. An order that the proceedings referred to in paragraph 1 above be transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. 3. The costs of the DDT Proceedings be costs in the cause to the extent those costs relate to documents, matters or particulars which are necessary and relevant for the conduct of the Supreme Court of Queensland proceedings. 4. No order as to costs.