Seltsam Pty Limited v Maxwell Robert Fritz

HER HONOUR: The plaintiff Seltsam Pty Limited pursuant to its summons filed on 24 May 2019 seeks the following orders:

The orders are consented to by the first defendant, Maxwell Fritz, and the second and third defendants, I have been informed by counsel Mr Ilkovski, neither consent to nor oppose the application.

Maxwell Fritz is 76 years old and currently resides in Queensland. His proceedings were commenced by statement of claim filed in the Dust Diseases Tribunal of New South Wales on 3 April 2019. Mr Fritz alleges that between February 1957 and a date in May 1982 he was employed by various employers in the Brisbane metropolitan area as an apprentice and qualified carpenter. For a short period he was also self-employed as a builder.

Mr Fritz alleges that during the course of these employments, he handled, cut, rasted and fixed various asbestos cement building materials that were manufactured and/or supplied by the defendant. He also alleges that he worked in the vicinity of other workers using the said asbestos cement building materials. As a result, he says, he was exposed to and inhaled asbestos dust and fibre.

Seltsam’s application under s 8(1)(a) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the Act) depends upon whether it is in the interests 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. In the decision of Amaca Pty Limited v Cecilia Morrison [2013] NSWSC 1706, Harrison J usefully collected the authorities relevant to such an application from his Honour’s previous decision in: British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83:

Seltsam submits that it is in the interests of justice, within the meaning s 5(2)(b)(iii) of the Act that the tribunal proceedings be determined in the Supreme Court of Queensland because Queensland is the Australian jurisdiction which has the most real and substantial connection to Mr Fritz and his claims. This is said to be the for the following reasons; first the places at which Mr Fritz worked and at which the exposure claimed occurred were all in Queensland; second, Mr Fritz currently lives in Queensland as mentioned in a statutory declaration completed by him on 29 March 2019 (page 45 of the exhibited material to the affidavit of David Edward Miller sworn 23 May 2019 upon which the plaintiff relies); third, all medical practitioners cited in Mr Fritz's Statement of Particulars that he filed on 3 April 2019 identified as persons who had treated him for his condition are all located in suburbs of Queensland.

It seems reasonable to infer from the “Summary of Work and Exposure” history set out on page 19 of the exhibit to Mr Miller's affidavit, that Mr Fritz lived in Queensland and therefore the damage alleged by him to have been suffered was all sustained or suffered whilst he worked and resided in Queensland. The affidavit of Mr Miller deposes to a couple of additional reasons as to why Queensland is the more natural and appropriate forum to hear the proceedings, namely that any witnesses of fact are likely to reside in Queensland and if Seltsam instructs a medical expert to examine Mr Fritz, it is likely that it will instruct a medical expert that is based in Queensland.

The latter is obviously something over which Seltsam has some control and it seems perfectly reasonable and highly likely that an expert in Queensland would be retained to assess Mr Fritz. There is no statement as to the basis for Mr Miller's belief that any witnesses of fact are likely to reside in Queensland however, some of the narrative in Part 4 of the plaintiff's Statement of Particulars that forms part of the exhibit to Mr Miller's affidavit discusses a number of co-workers and circumstances that indicate some support for the conclusion of Mr Miller that witnesses of fact are likely to reside in Queensland.

Further to my earlier observation regarding the residing of Mr Fritz in Queensland I note that on page 17 of his Statement of Particulars Mr Fritz referred to having lived in his current house for 52 years and that house is in the suburb of Brisbane called Salisbury. It seems to me that in the particular circumstances of this case, the authorities significantly favour the application.

I accept the contention by Seltsam that Queensland is the natural forum in which to hear this case.

In addition to the matters referred to above, a significant amount of medical reports and investigations and WorkCover Queensland documents have been provided as part of the exhibit to Mr Miller's affidavit and they, too, confirm the matters deposed to, that is that the treating doctors practice in Queensland.

Accordingly I make orders in accordance with the short minutes of order.

I note in respect of the question of costs, a letter from Turner Freeman Lawyers who act on behalf of Mr Fritz dated 9 May 2019, in which they indicate their consent to this application conditional upon an order that the parties bear their own costs in respect of the application. I note counsel for the plaintiff, Mr Ilkovski, confirmed that is the order sought and in those circumstances, I make an order that the parties each bear their own costs of the application.