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).
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.
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.
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.
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."
Seltsam submits that it is in the interests of justice, within the meaning s 5(2)(b)(iii) of the Act that the tribunal proceedings be determined in the Supreme Court of Queensland because Queensland is the Australian jurisdiction which has the most real and substantial connection to Mr Fritz and his claims. This is said to be the for the following reasons; first the places at which Mr Fritz worked and at which the exposure claimed occurred were all in Queensland; second, Mr Fritz currently lives in Queensland as mentioned in a statutory declaration completed by him on 29 March 2019 (page 45 of the exhibited material to the affidavit of David Edward Miller sworn 23 May 2019 upon which the plaintiff relies); third, all medical practitioners cited in Mr Fritz's Statement of Particulars that he filed on 3 April 2019 identified as persons who had treated him for his condition are all located in suburbs of Queensland.
It seems reasonable to infer from the "Summary of Work and Exposure" history set out on page 19 of the exhibit to Mr Miller's affidavit, that Mr Fritz lived in Queensland and therefore the damage alleged by him to have been suffered was all sustained or suffered whilst he worked and resided in Queensland. The affidavit of Mr Miller deposes to a couple of additional reasons as to why Queensland is the more natural and appropriate forum to hear the proceedings, namely that any witnesses of fact are likely to reside in Queensland and if Seltsam instructs a medical expert to examine Mr Fritz, it is likely that it will instruct a medical expert that is based in Queensland.
The latter is obviously something over which Seltsam has some control and it seems perfectly reasonable and highly likely that an expert in Queensland would be retained to assess Mr Fritz. There is no statement as to the basis for Mr Miller's belief that any witnesses of fact are likely to reside in Queensland however, some of the narrative in Part 4 of the plaintiff's Statement of Particulars that forms part of the exhibit to Mr Miller's affidavit discusses a number of co-workers and circumstances that indicate some support for the conclusion of Mr Miller that witnesses of fact are likely to reside in Queensland.
Further to my earlier observation regarding the residing of Mr Fritz in Queensland I note that on page 17 of his Statement of Particulars Mr Fritz referred to having lived in his current house for 52 years and that house is in the suburb of Brisbane called Salisbury. It seems to me that in the particular circumstances of this case, the authorities significantly favour the application.
I accept the contention by Seltsam that Queensland is the natural forum in which to hear this case.
In addition to the matters referred to above, a significant amount of medical reports and investigations and WorkCover Queensland documents have been provided as part of the exhibit to Mr Miller's affidavit and they, too, confirm the matters deposed to, that is that the treating doctors practice in Queensland.
Accordingly I make orders in accordance with the short minutes of order.
I note in respect of the question of costs, a letter from Turner Freeman Lawyers who act on behalf of Mr Fritz dated 9 May 2019, in which they indicate their consent to this application conditional upon an order that the parties bear their own costs in respect of the application. I note counsel for the plaintiff, Mr Ilkovski, confirmed that is the order sought and in those circumstances, I make an order that the parties each bear their own costs of the application.
[2]
Amendments
24 June 2019 - typographical error on coversheet - 2016 changed to 2019
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Decision last updated: 24 June 2019