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:
"8 Orders by Supreme Court of a Territory
(1) Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in:
(i) a court, other than the Supreme Court, of a Territory; or
(ii) a tribunal established by or under a law of a Territory; and
(b) it appears to the Supreme Court of that Territory that:
…
(ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court;
the Supreme Court of that first-mentioned Territory may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to that Supreme Court."
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:
"5 Transfer of proceedings
…
(2) Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and
(b) it appears to the first court that:
…
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court."
In British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83, Harrison J referred to this provision, stating:
"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.'"
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":
(a) all of the exposure by Maureen Tucker to asbestos alleged by the first respondents, was in Queensland over a 26 year period;
(b) all of the places of employment where the asbestos dust and fibres are alleged to have become attached to the clothing of Maureen Tucker's husband and son were in Queensland;
(c) the treating medical practitioners of Maureen Tucker are based in Queensland;
(d) the first respondent's solicitors are based in Queensland; and
(e) former Telstra employee David Plant, who will be a witness in the proceedings, resides in Queensland.
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:
(1) Pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), proceedings no. 321 of 2018 pending in the Dust Diseases Tribunal of New South Wales between Telstra Corporation Limited (the applicant) as the defendant/cross-claimant and Thomas Wayne Tucker and Caroline Ann Thompson (as Legal Personal Representatives of the Estate of Maureen Ailsa Anne Tucker) (the first respondent) as the plaintiff and associated cross-claim proceedings no. 321 of 2018/1 commenced against Amaca Pty Limited (the second respondent) as the first cross-defendant and Seltsam Pty Limited (the third respondent) as the second cross-defendant ("the DDT proceedings") be removed into the Common Law Division of this Court.
(2) Pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the DDT proceedings when removed into this Court be transferred to the Supreme Court of Queensland.
(3) The first respondent's costs of the proceedings filed in the Dust Diseases Tribunal of New South Wales (proceedings no. 321 of 2018) to be the first respondent's costs in the cause of the proceedings to be filed in Queensland.
(4) No order as to costs in respect of the Supreme Court of New South Wales proceedings.
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Decision last updated: 23 August 2019