CSR Limited v Knight

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 Knight, 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, particularly in Queensland between 1972 and 1997. Mr Knight commenced proceedings for compensation by way of a statement of claim filed in the Dust Diseases Tribunal of New South Wales on 12 March 2019 against Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd), who he contends was the manufacturer of the asbestos that ultimately caused his condition. Amaca Pty Ltd joined CSR limited, who is the plaintiff in the matter before me, as the Duty Judge.

The first defendant consents to the orders sought by the plaintiff. The first and second defendant’s appearance was mentioned by the plaintiff by consent. The third defendant, the State of Queensland, is represented in this application. Both the second and third defendants neither consent nor oppose the orders sought.

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:

This approach was affirmed by Kirby J in BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [164].

In this case, the plaintiff contends that there is one substantive “connecting factor” to Queensland. Other than a “low level” of exposure at a place of employment in Victoria in 1961, all of the exposure alleged by the first defendant has been at various places of employment in Queensland over a 25 year period. None of the parties alleges that the first defendant was exposed to Asbestos dust or fibres in New South Wales.

As well, the following are “factors affecting convenience and 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: