Seltsam Pty Limited v Maxwell Robert Fritz

EX TEMPore Judgment

1. HER HONOUR: The plaintiff Seltsam Pty Limited pursuant to its summons filed on 24 May 2019 seeks the following orders: 1. That the proceedings number 123 of 2019 and 123 of 2019\1 in the Dust Diseases Tribunal of New South Wales be removed from the Dust Diseases Tribunal of New South Wales into 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). 2. That the proceedings referred to in paragraph 1 above be transferred to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
2. 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.
3. 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.
4. 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.
5. 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: "[23] BATAS's application under s 8(1)(a) of the Act depends on whether it is 'in the interests of justice' within the meaning of s 5(2)(b)(iii) of the Act that the DDT proceedings be determined in the Supreme Court of Victoria. If, and only if, it is in the 'interests of justice' for those proceedings to be transferred to Victoria will the Court make the orders sought under s 8(1)(b)(ii) transferring the proceedings from the Dust Diseases Tribunal into this Court: see Volkswagen Financial Services Australia Ltd v City Prestige Service Centre Pty Limited [2007] NSWSC 203 at [10]; see also Amaca Pty Limited v Mundy [2008] NSWSC 604. ... [25] The determination of whether it is in the 'interests of justice' under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state depends on what is the 'more appropriate' forum for those proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161] - [169] per Kirby J. Another way of putting the same inquiry is to ask which is the 'natural forum' for the proceedings: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44], Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69]. [26] In Spilliada Maritime Corp v Cansulex Limited [1987] 1 AC 460 at 478 Lord Goff identified some of the 'connecting factors' which were of importance in the application of the principle of forum non conveniens in England: 'So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business.' [27] Those factors have been considered relevant in the assessment of the "interests of justice" in the application of s 5(2)(b)(iii) of the Act: see Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730E, Barry (supra) at [95] per Mason P; Schultz (supra) at [18] per Gleeson CJ, McHugh and Heydon JJ and at [163] per Kirby J. The location of the place of the wrong and the governing law of the wrong are also matters of prime importance in the exercise of the power of transfer under s 5(2)(b)(iii): see Barry (supra) at [7] per Spigelman CJ (a passage which was quoted with approval by Kirby J in Schultz (supra) at [165]). A further matter of importance in considering the "interests of justice" is whether the assessment of any questions arising in the litigation is dependent on a degree of local knowledge: see Bankinvest (supra) at 729D per Rogers AJA. There is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz (supra) at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J."