Amaca Pty Limited v Metro North Hospital and Health Service

1. [1]

   The plaintiff, Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) pursuant to its summons filed on 10 June 2021 seeks the following orders:

   1. (1)

      That proceedings numbered 2020/179204/001 pending in the Dust Diseases Tribunal of New South Wales commenced by the plaintiff be removed to the Common Law Division of this Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

   2. (2)

      That the Dust Diseases Tribunal proceedings (when and if removed into this Court) be transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

2. [2]

   The orders are consented to by all of the defendants.

Background

1. [3]

   The plaintiff was the defendant in proceedings commenced in the Dust Diseases Tribunal by Mr Donald Maslen. Mr Maslen, by Statement of Claim filed in the Dust Diseases Tribunal on 12 December 2019, alleged that he was exposed to asbestos dust and fibre containing products manufactured and supplied by the plaintiff in both New South Wales and Queensland in the period 1967 to 1983.

2. [4]

   Mr Maslen’s case against the plaintiff has settled.

3. [5]

   The plaintiff filed a Statement of Cross-Claim on 11 March 2020 in which it sought contribution in respect of its liability to Mr Maslen.

4. [6]

   The defendants in these proceedings, Metro North Hospital and Health Service, the State of Queensland and CSR Limited are the Cross-Defendants to the plaintiff’s Cross-Claim.

5. [7]

   The claim against the defendants is in connection with Mr Maslen’s exposure in Queensland.

Legislation and applicable principles

1. [8]

   The plaintiff’s application under s 8 of the Jurisdiction of Court (Cross-Vesting) Act 1987 (Cth) (the Act) depends upon whether it is in the interest 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.

2. [9]

   Section 5(2) of the Act provides:

3. [10]

   Section 8 of the Act provides:

4. [11]

   The relevant principles to be drawn from the cases are accurately and helpfully set out in the plaintiff’s written submissions:

Factors bearing on transfer to Queensland: Plaintiff’s submissions

1. [12]

   The plaintiff submits that it is in the interests of justice, within the meaning of s 5(2)(b)(iii) of the Act, that the tribunal proceedings be determined in the Supreme Court of Queensland for the following reasons.

2. [13]

   First, there is no substantial connection with New South Wales. The Cross-Claim arises out of events that occurred exclusively in Queensland as set out in pars 14 to 21 of the affidavit of Mr Mark Victorsen sworn 10 June 2021.

3. [14]

   Second, in determining the defendants’ liability in the contribution proceedings, it is anticipated that the witnesses who will be called reside an hour and a half from the Brisbane Supreme Court. All lay witnesses and treating specialists for both Mr and Mrs Maslen who are likely to be called in the contribution proceedings, reside in Queensland.

4. [15]

   Third, the governing law to be applied will be Queensland law, both statutory and common law.

5. [16]

   Fourth, there is no compelling reason for the matter to remain in New South Wales.

Decision

1. [17]

   The Supreme Court of Queensland is undoubtedly the more appropriate forum for determination of the contribution proceedings given that the governing law is the law of Queensland, there is no natural connection to New South Wales, the parties, the witnesses, and most of the legal representatives have a more significant connection to Queensland, there is no reason for the matter to remain in New South Wales and there is no opposition to the transfer; indeed all parties consent. It is in the interests of justice that the proceedings be transferred in the manner sought.

Orders

1. [18]

   I make the following orders:

   1. (1)

      That proceedings numbered 2020/179204/001 pending in the Dust Diseases Tribunal of New South Wales commenced by the plaintiff be removed to the Common Law Division of this Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

   2. (2)

      That the Dust Diseases Tribunal proceedings be transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).