Supreme Court New South Wales

• Medium Neutral Citation: Alfonso Russo v BHP Billiton Nickel West Pty Limited & Power Step (Australia) Pty Limited [2014] NSWSC 794
• Hearing dates: 28 May 2014
• Decision date: 16 June 2014
• Before: Rothman J

Decision

1. Motion dismissed;

2. The first defendant shall pay the plaintiff's and second defendant's costs of and incidental to the motion.

• Catchwords: CROSS-VESTING - application for transfer from NSW Supreme Court to WA Supreme Court - no present proceedings in WA - jurisdiction to transfer - intention to have matter heard in WA District Court - test still "interests of justice" even though determination in WA Supreme Court would be to transfer further to another court or tribunal - two defendants one WA based and one Queensland based - likelihood that act of negligence occurred in Queensland or involved conduct in Queensland - importance of lex loci delicti - injury occurred in WA - no real issue as to how injury occurred - balancing of law to be applied, on the one hand, being WA against overwhelming location of witnesses in NSW and QLD - application dismissed.
• Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth); Civil Liability Act 2002 (WA)
• Cases Cited: BHP Billiton Ltd v Harwood [2011] NSWSC 680; Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265; Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
• Category: Interlocutory applications
• Parties: Alfonso Russo (Plaintiff); BHP Billiton Nickel West Pty Limited (First Defendant); Power Step (Australia) Pty Limited (Second Defendant)
• Representation: Counsel: David Hooke SC / Dominic Toomey (Plaintiff); David Talintyre (First Defendant); Freida Stylianou (Second Defendant); Solicitors: Beilby Poulden Costello (Plaintiff); HWL Ebsworth (First Defendant); Hicksons Lawyers (Second Defendant)
• File Number(s): 2013/372339
• Publication restriction: None

Judgment

1 HIS HONOUR: The first defendant, BHP Billiton Nickel West Pty Ltd (BHP Billiton) moves the Court by motion on notice filed 11 April 2014 for orders transferring the proceedings to the Supreme Court of Western Australia. BHP Billiton relies in support thereof on the affidavit of Sandy Meacham of 11 April 2014 and the affidavit of Natasha Burn of 12 May 2014.

2 The plaintiff opposes the orders sought, as does the second defendant. The second defendant relies upon the affidavit of Freida Stylianou of 2 May 2014 and the plaintiff relies upon the affidavits of the plaintiff himself of 22 April 2014 and 28 May 2014.

Jurisdiction to Transfer

3 At the hearing of the application on 28 May 2014, an issue arose as to whether the Court had jurisdiction to transfer proceedings to the Supreme Court of Western Australia in circumstances where there were no current proceedings in that State or in that Court. The corollary issue associated with that proposition is that the motion seeks transfer to the Supreme Court of Western Australia, but the first defendant has made clear that the transfer actually sought is to the District Court of Western Australia and whether, as a consequence, the Court has jurisdiction to make such an order.

4 Because the issue was raised in relation to the Court's jurisdiction to transfer in the absence of proceedings already commenced in Western Australia and the applicant on the motion had not been given notice of this issue, the Court required the plaintiff to file a submission setting out its jurisdictional challenge and gave time for the first defendant to reply thereto. The reason the Court adopted that course, apart from the lack of notice to the first defendant, being the applicant on the motion, was that such a challenge was inconsistent with the Court's understanding of the practice that has been adopted in past proceedings.

5 Ultimately, the plaintiff has notified the Court that it does not pursue its jurisdictional challenge. Nevertheless, the question having been raised, it is the function of the Court to satisfy itself that jurisdiction exists.

6 The provisions of s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Cross-Vesting Act) grants the Court jurisdiction to transfer the matter to the Supreme Court of Western Australia where it is "otherwise in the interests of justice" so to do, whether or not there are proceedings pending in that State. Relevantly, the provision is in the following terms:

"s 5 Transfer of Proceedings

...

(2) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (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."

7 The term "otherwise" in s 5(2)(b)(iii) of the Cross-Vesting Act refers to the circumstances otherwise described in ss 5(2)(b)(i) and 5(2)(b)(ii), each of which refer to proceedings that are related to (or arising out of) the proceedings and/or in which the NSW Supreme Court does not have jurisdiction. Neither of those circumstances arise. Nor does the proceeding involve the application, interpretation or validity of a law of another State for which the NSW Supreme Court does not have jurisdiction.

8 In other words, the provisions of s 5(2)(b)(iii) of the Cross-Vesting Act apply and the statutory prescription requires the Court to assess "the interests of justice" as to whether the relevant proceeding should be determined by the NSW Supreme Court or by the Supreme Court of another State.

9 The second issue, relating to the fact that the first defendant ultimately seeks that the matter be determined by the District Court of Western Australia, raises a slightly different issue. This was an issue dealt with by his Honour, Hoeben J (as his Honour then was), in BHP Billiton Ltd v Harwood [2011] NSWSC 680 in which his Honour held that the Court had jurisdiction to transfer proceedings to a tribunal or court other than the Supreme Court in another State.

10 It is unnecessary to determine whether jurisdiction exists to transfer the proceedings to a tribunal, other than the Supreme Court, in another State. The motion seeks transfer to the Supreme Court of Western Australia.

11 However, the statute requires that the Court determine whether it is more appropriate that the matter be determined by the Supreme Court of another State. The circumstances or situation where it is likely that the Supreme Court of the other State will transfer the proceedings to another court or tribunal is not an express consideration in the test to which s 5(2)(b)(iii) of the Cross-Vesting Act refers.

12 In my view, if the interests of justice were that the relevant proceeding be determined by a court or tribunal other than the Supreme Court of another State and the transfer to the Supreme Court of that other State is for the purpose of a further transfer from that Supreme Court to that other court or tribunal, then the interests of justice would be that the relevant proceeding be transferred to the Supreme Court of that other State.

13 The difficulty associated with the foregoing is that the test promulgated for consideration by this Court is whether the Supreme Court of the other State "determine" the proceeding. In my view, a proceeding may better be "determined" even if the determination is only to transfer the matter to another more appropriate court or tribunal.

14 I conclude that the Court has jurisdiction to transfer the proceedings to the Supreme Court of Western Australia, for the purpose of a further transfer to the District Court of that State and that the relevant expression, in "the interests of justice", is one that assesses the interests of justice of having the matter heard in New South Wales or in, relevantly, Western Australia, by whatever appropriate court or tribunal ultimately determines it.

Factual Background

15 The plaintiff filed a Statement of Claim on 11 December 2013, alleging personal injury in the course of his employment on 7 July 2011. The injury occurred when the plaintiff stepped onto a ladder alighting from a bulldozer and a rung of the ladder gave way, causing the plaintiff to fall to the ground. The ladder was manufactured, repaired and maintained by the second defendant, by which it was also installed on the bulldozer.

16 The injury occurred (and the bulldozer was located) at Mount Keith at BHP Billiton's Nickel Mine. Mount Keith is in Western Australia, over 950 kilometres northeast of Perth and over 1200 kilometres southeast of Karratha (almost due-north from Esperance and due-east from Carnavon).

17 As earlier stated, the injury occurred in Western Australian at Mount Keith. The second defendant, Power Step (Australia) Pty Limited (Power Step), manufactured the ladder in Queensland. It is not clear, as yet, where installation occurred, but I assume, for present purposes, that it occurred in-situ at Mount Keith. Certainly, any repair and maintenance occurred in-situ at Mount Keith in Western Australia.

18 Further, at this stage of the proceedings, it is not clear whether, if the plaintiff were to succeed, the first or second defendant (or both) would be held liable in negligence.

19 BHP Billiton's registered office is in Western Australia (in Perth). Power Step's registered office is in South Australia and its major business operations, in particular, its manufacturing and/or fabrication premises, are in Queensland.

20 BHP Billiton describes its principal place of business in Perth (according to ASIC records, although the affidavit of Ms Meacham refers to a principal place of business being, as one would expect, at Mouth Keith).

21 BHP Billiton is part of the BHP Billiton Group, the principal place of business of which is in Melbourne and BHP Billiton was first registered in Victoria. BHP Billiton has filed a defence in the proceedings. That defence does not deny, but does not admit, the allegations of fact as to the occurrence of the injury.

22 Yet BHP Billiton suggests it has a significant number of lay witnesses who may or may not be located in Western Australia. The subject bulldozer is located at Mount Keith, but the ladder in question has been discarded and is no longer available for inspection.

23 As has been frankly and appropriately stated during the course of the proceedings on this motion, there seems to be little dispute as to how the accident occurred. The plaintiff was alighting from the bulldozer, for which purpose he was required to step onto the ladder, and one of the rungs of the ladder gave way. In those circumstances, it is not immediately apparent why one would need six or more witnesses to attest to that fact. Nor is it immediately apparent why there would be a significant issue as to the details of the immediate attention that was provided to the plaintiff and his transfer to hospital.

24 It seems on the face of it that the issues in the trial are whether the fact, if it be the fact, that the rung gave way is attributable to the negligence of BHP Billiton or Power Step or both and the extent of the damage suffered by the plaintiff.

25 The plaintiff was working at Mount Keith on a fly-in/fly-out basis (two weeks on and one week off) and continued to be domiciled in New South Wales. After his injury, he was returned to New South Wales and has lived in this State ever since.

26 His major treating doctors are New South Wales based.

27 On its face, the liability issues seem to depend far more on the question of the manufacture, installation and repair and treatment of the ladder than on any issue associated with particular site issues.

28 The other major issue seems to be the damage and its effect on the plaintiff's earning capacity. The latter aspect is one that is fundamentally a medical issue. The earlier issue, going to liability, seems predominately to be one associated with the nature of the ladder, its fabrication and maintenance.

Consideration

29 The injury occurred in Western Australia. That is a major factor in the determination of where the proceedings are most appropriately determined.

30 There is no suggestion that the Supreme Court of NSW does not have jurisdiction. Nor could there be. The plaintiff is domiciled in New South Wales.

31 Each of the plaintiff's treating doctors are domiciled in New South Wales and practice in New South Wales. Any other medical opinion, yet to be qualified, is equally available in any of the States of Australia.

32 Otherwise, the applicant on the motion, BHP Billiton, relies upon the procedures and processes available in the Western Australian District Court, including efficient case management on personal injury actions, discovery and interrogatories and its experience and familiarity with the factual and legal framework relating to claims from labour hire mining workers in remote Western Australia, including work practices and terminology.

33 Lastly, and not unimportantly, it is noted that the level of damages, being general damages, is not capped for non-motor vehicle injuries in Western Australia. It is said that a five-day trial of these proceedings could be listed for hearing in the Western Australian District Court as early as July 2014. The relevance of that is not immediately apparent, given that the estimate of the hearing from the parties is that it will take far longer than five days and the case is not yet ready to be listed.

Principles

34 Ultimately, the question before the Court is an assessment of the "interests of justice". Understandably, in a federation such as Australia, it is no longer necessary, pursuant to the statutory scheme, to demonstrate that the NSW Supreme Court is a clearly inappropriate forum, as would be the case if the matter were sought to be transferred to, say, New York; see discussion in Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265, citing with approval Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538.

35 Thus, even if the NSW Supreme Court is not a "clearly inappropriate forum", that fact does not determine the issues relating to the "interests of justice" to which the Court is directed by the provisions of s 5(2)(b)(iii) of the Cross-Vesting Act.

36 Important considerations in the determination of whether the interests of justice are that the matter be determined in Western Australia include the location at which the injury occurred; the law to be applied; the nature of the negligence alleged and likely to be determined (if any); and the convenience to the parties of the differing locations.

37 In this case, the causes of action against the different defendants give rise to nice issues as to the law to be applied in the question of negligence. If, as is likely (a prediction based upon the facts of the injury and no other evidence at this stage), negligence occurred in the manufacture of the ladder as a more likely cause of the injury than any subsequent conduct, the negligence will have occurred in Queensland, not Western Australia. The applicant on the motion conflates the causes of action against each of the defendants in a way that suggests the only law that may be applied is that in Western Australia. There may be legislated standards of care applicable to the manufacture to which the law of Queensland will apply.

38 The foregoing analysis is based solely on the fact that only one rung of a number collapsed. The ladder, presumably, was maintained and any maltreatment of the ladder (either by incident or a lack of maintenance and/or repair) would apply equally to each of the rungs. Therefore, as a matter of probability, the likelihood is, if there were negligence, it occurred in Queensland.

39 Nevertheless, the lex loci delicti, the place of which the injury occurred, was Western Australia and no tort is complete without damage having been suffered.

40 That Western Australian law would be applied to the determination of liability (and damages) is a strong factor favouring the grant of the application.

41 On the other hand, the place at which the negligence is more likely to have occurred and the convenience of the parties loom large in the particular circumstances of this case.

42 The applicant, BHP Billiton, lists a number of factors. Those factors are not exhaustive, but include: the place where the parties and/or witnesses reside and carry on business; the location of the subject matter of the dispute; the importance of local knowledge to the resolution of the issues; the law governing the relevant transaction, especially if the matter involves the construction of State legislation; the procedures available in the different courts; the likely hearing dates of the differing courts; whether it is sought to transfer the proceedings to a specialised court; and an exclusive jurisdiction clause nominating the courts of a particular State for the resolution of disputes.

43 Of the foregoing factors, only the law governing the relevant transaction points unqualifiedly to the matter being resolved in Western Australia. Open-cut mining, the expertise of the Western Australia courts being relied upon, is carried on in almost all of the States of Australia (and the Northern Territory) and certainly in New South Wales.

44 The procedures available in each of the differing courts is not a matter that seems to weigh heavily, or at all, as to the location in which the matter should be heard.

45 As to the location of the subject matter of the dispute, as earlier stated, it seems to me that it is far more likely that the subject matter of the dispute will be the care and appropriateness of the conduct of the second defendant in Queensland (or alternatively, of the second defendant when in Western Australia maintaining or repairing the ladder) than the actual occasioning of the injury.

46 Likewise, as earlier explained, save for the location of witnesses, the identity of whom has a degree of flexibility, the most important witnesses (already fixed) are witnesses relating to the treatment of the plaintiff in New South Wales and the manufacture and maintenance of the ladder who are in Queensland.

47 The next matter to be considered is the question of the likely hearing dates. As earlier stated, the applicant relies upon the fact that a five-day hearing could be listed in July 2014 in the Western Australia District Court. As earlier stated, the relevance of that information is doubtful. Given the readiness of the parties and, in particular, that some experts have yet to be qualified, it is unlikely that the matter could possibly be heard in July 2014. Further, the matter is more than a five day hearing.

48 There is no evidence before the Court as to the delay in fixing a matter that is more than five days in duration. As pointed out to the parties, on the other hand, the Supreme Court of NSW recently (i.e. on the day that the motion was heard) listed a three-week personal injury trial for August 2014. Again, the relevance of that is not particularly great.

49 Nevertheless, there does not seem to be an inability of either court to list the matter with some expedition, if it be necessary, and assuming the parties are ready for the matter to be listed.

50 Lastly, the matter is not the subject of an exclusive jurisdiction clause, nor is it sought to be transferred to a specialised court. The matter is a personal injury matter involving the common law of Australia as to negligence. To the extent that the statutory provisions applicable to it in Western Australia are to be applied, other than the issue of a cap on the damages, no one suggests that the law is substantially different in approach. Of course, the provisions of the Civil Liability Act 2002 (WA) must apply, but they are substantially in similar terms to the provisions of its New South Wales counterpart.

51 Ultimately, it seems the majority of witnesses will come from New South Wales and Queensland and each of those witnesses are fixed in location. The "liability" witnesses that were suggested may be appropriate for BHP Billiton to call do not seem to be witnesses associated with the most likely cause of any negligence or carelessness.

52 Notwithstanding the submission that the Western Australian District Court is more familiar with the mining industry and employment practices therein and could therefore better deal with the issues in the proceedings, the most likely issue of liability is one relating to the manufacturing industry, not the mining industry and occurs in Queensland, not Western Australia.

53 Further, the issue as to damage, while it must be assessed in accordance with Western Australian law, will relate to the availability of employment in the open-cut mining industry throughout Australia and in relation to current employment prospects most likely the employment prospects in other industries in New South Wales.

54 Overall, the location of the second defendant, the likelihood that negligence was occasioned by a manufacturing issue in Queensland and the location of witnesses already qualified (and whose location is not dependent upon these proceedings or any interest in these proceedings) outweighs the necessity to apply Western Australian law to the proceeding.

55 For the foregoing reasons, the motion for the transfer of proceedings is dismissed. The Court makes the following orders:

(1) Motion dismissed;

(2) The first defendant shall pay the plaintiff's and second defendant's costs of and incidental to the motion.

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Decision last updated: 24 June 2014