Telstra Corporation Limited v Tucker

HIS HONOUR: Telstra Corporation Limited (“the applicant”) seeks, by way of a summons, an order that proceedings that have been commenced in the Dust Diseases Tribunal of New South Wales 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. 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.

Thomas Tucker and Caroline Thompson (“the first respondents”) are the legal personal representatives of the estate of the late Maureen Alisa Anne Tucker (“Maureen Tucker”), who was diagnosed with malignant pleural mesothelioma in September 2018 and died seventeen days later. An amended statement of claim was filed by the first respondents in the Dust Diseases Tribunal on 9 April 2019, in which it is alleged that consequent to the negligence of the plaintiff, Maureen Tucker was exposed to asbestos dust and fibres when shaking out and washing the work clothes of her husband Robert Tucker and her son Wayne Tucker, thereby causing her condition. Both were employed by the applicant at various sites in Queensland, her husband between 1973 and 1999 and Wayne Tucker between 1973 and 1975. The amended statement of claim alleges that both men were exposed to asbestos dust and fibres in the course of their employment, so that it adhered to their work clothes.

On 24 June 2019, the applicant filed a notice of cross-claim naming the second defendant, Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd), and Seltsam Pty Ltd as the first cross-defendant in the proceedings in the Dust Diseases Tribunal, who it contends was the manufacturer of the asbestos that ultimately caused the condition. The applicant filed the summons on 13 August 2019. The second and third respondents consent to the application. Correspondence attached to an affidavit in support of the summons, sworn on 13 August 2019 by a solicitor acting for the applicant, Robyn Brewster, indicates that the first respondent consents to the application provided that their costs of and incidental to the proceedings in the Dust and Diseases Tribunal will form part of their costs in the cross-vested proceedings in Queensland.

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 BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61, Kirby J at [164] identified the availability of witnesses and the places where the parties reside as being factors affecting convenience and expense.

Other than a “low level” of exposure at a place of employment in Victoria in 1961, all of the exposure alleged by the first respondents has been at various places of employment in Queensland over a 25 year period. None of the parties allege that the Robert Tucker and Wayne Tucker were exposed to Asbestos dust or fibres in New South Wales.

In this case, the applicant relies on the following “connecting factors” to Queensland and “factors affecting convenience and expense”:

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: