CSR Limited v Hamilton

HIS HONOUR: The plaintiff seeks, by way of a summons, an order that proceedings in the Dust Diseases Tribunal of NSW be removed to the Common Law Division of the Supreme Court of New South Wales pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“the Act”) and a further order that they then be transferred to the Supreme Court of Queensland, pursuant to s 5(2) of the Act. The summons is supported by an affidavit sworn by David Miller, a solicitor acting for the plaintiff, which annexes documentation relied upon to establish a factual basis for the application.

Robert Hamilton, the first defendant in the proceedings, has been diagnosed with mesothelioma. He alleges it was caused by his exposure to asbestos dust and fibres over the course of his employment in Queensland between 1954 and about 1973 and that he may also have been exposed to asbestos in Queensland between about 1973 and about 1980. Mr Hamilton has deposed that he has not had any New South Wales-based employment which involved exposure to asbestos. Mr Hamilton commenced proceedings for compensation by way of a statement of claim filed in the Dust Diseases Tribunal of New South Wales on 28 October 2019 against Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd), who he contends was the manufacturer of the asbestos that ultimately caused his condition. Amaca Pty Limited joined CSR Limited, who is the plaintiff. This matter came to me as Duty Judge.

The first defendant neither consents nor opposes the orders sought by the plaintiff. The second defendant’s appearance was mentioned by the plaintiff by consent. The second defendant consents to the orders sought by the plaintiff.

Section 8(1) of the Act provides as follows:

In order to determine whether the matter should be removed to this Court, it is necessary to consider whether, assuming it is so removed, it would then be appropriate for the matter to be transferred to the Supreme Court of Queensland.

Section 5(2)(b)(iii) of the Act provides:

In British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83, Harrison J referred to this provision, stating:

In this case, the plaintiff contends that all of the exposure alleged by the first defendant has been at various places of employment in Queensland over a 26-year period. None of the parties allege that the first defendant was exposed to asbestos dust or fibres in New South Wales.

As well, the following are “factors affecting convenience or expense” which are apparent from the material annexed to the affidavit of David Miller:

For these reasons, I am satisfied that it is in the interests of justice for the matter to be removed to this Court and transferred to the Supreme Court of Queensland. Accordingly, I make the following orders: