Court ordered the transfer in the interests of justice
The NSW Supreme Court has allowed the “cross-vesting” to the Victoria court of a work-related injury case because it was in the interests of justice.
In Amaca Pty Ltd v Mortimer [2023] NSWSC 117, Brendan Mortimer had commenced proceedings in the Dust Diseases Tribunal of NSW seeking damages for contracting mesothelioma, cancer affecting the tissue that lines the lungs, heart, and abdomen. He alleged that he contracted the disease from working at the Westernport Refinery at Crib Point in Victoria between 1965 and 1985. Mortimer passed away three days after filing the action, and the executor continued the proceedings.
The plaintiff, Amaca Pty Ltd, sought to have the proceedings in the dust disease tribunal removed into the NSW supreme court and then moved to either the Victoria or Queensland supreme courts. The plaintiff filed the action under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).
Test for cross-vesting
The NSW court explained that the test for removing the proceedings from another court in the state into the NSW supreme court is not stringent. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, the court held that the interests of justice dictate which court is the more appropriate to hear the proceedings. If it appears to the court that it is in the interests of justice that another designated court determine the proceedings, then the first court shall transfer the proceedings to that other court.
Interests of justice
In this case, the court found that Mortimer sustained injury only in his workplace in Victoria. The law of Victoria will be the appropriate law for determining the matter, and there is no apparent connection with NSW. In addition, the Victoria supreme court has a specific list or court for dust disease matters. There is no disadvantage to proceedings in that list compared to what takes place in the dust diseases tribunal of NSW.
The court also considered that Mortimer’s executor resides in Queensland. However, the court found it was a subsidiary matter since the parties, in this case, agreed that the proceedings should be cross-vested to Victoria. The court ultimately ruled that the proceedings must be transferred to the Supreme Court of Victoria in the interests of justice.
