Woolworths Group Limited v Anita and Lisa Tipper as Legal Personal Representatives of the Estate of the Late Alan Tipper [2020] NSWSC 1482 (22 October 2020)

Last Updated: 27 October 2020

Supreme Court New South Wales

Case Name:	Woolworths Group Limited v Anita and Lisa Tipper as Legal Personal Representatives of the Estate of the Late Alan Tipper
Medium Neutral Citation:	[2020] NSWSC 1482
Hearing Date(s):	22 October 2020
Date of Orders:	22 October 2020
Decision Date:	22 October 2020
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Refer to [21]
Catchwords:	PRACTICE AND PROCEDURE – proceedings commenced in Dust Diseases Tribunal of New South Wales for damages arising from negligence and breach of contract – application to cross-vest proceedings to Supreme Court of Queensland under ss.5 and 8 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – whether transfer of proceedings to Queensland in the interests of justice – where all connecting factors relate to Queensland – transfer application allowed
Legislation Cited:	Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Cases Cited:	Bankinvest AG v Seabrook (1988) 14 NSWLR 711 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353
Texts Cited:	---
Category:	Principal judgment
Parties:	Woolworths Group Limited (Plaintiff) Anita and Lisa Ann Tipper as Legal Personal Representatives of the Estate of the Late Alan Tipper (Defendant)
Representation:	Counsel: Ms JA Hillier (Plaintiff) Mr S Tzouganatos (Defendant) Solicitors: Ashurst Australia (Plaintiff) vbr Lawyers (Defendant)
File Number(s):	2020/290139
Publication Restriction:	___

JUDGMENT

1. JOHNSON J: By Summons filed on 8 October 2020, the Plaintiff, Woolworths Group Limited (“Woolworths”), seeks orders under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (“the Cross-vesting Act”) with respect to proceedings presently before the Dust Diseases Tribunal of New South Wales involving (as the Plaintiff in that Tribunal, but the Defendant to the Summons) Anita and Lisa Ann Tipper as legal personal representatives of the Estate of the late Alan Tipper.
2. Read in support of the application is the affidavit of Gabrielle Ann Forbes sworn 8 October 2020 which is accompanied by a significant volume of documentation.
3. Put shortly, proceedings were commenced in the Dust Diseases Tribunal of New South Wales by Alan Tipper. Unfortunately, Mr Tipper passed away on 7 April 2020. By Notice of Motion filed in the Dust Diseases Tribunal of New South Wales on 28 July 2020, her Honour Judge Strathdee granted leave on 17 August 2020 to file an Amended Statement of Claim which substituted Anita Tipper and Lisa Ann Tipper as the legal personal representatives of the Estate of the late Alan Tipper as the Plaintiff in those proceedings.
4. The Amended Statement of Claim alleged that Mr Tipper had, from a date in the early 1960s to a date in 1970, been employed by Woolworths in various roles that included State Manager in Queensland and that during the course of that employment, Mr Tipper was required to attend on the construction of shopping centres located at Mount Gravatt and Chermside in Brisbane where building materials containing asbestos were being handled, cut, drilled and installed in the vicinity of Mr Tipper, thereby exposing him to the inhalation of asbestos dust and fibre.
5. It is alleged in the Amended Statement of Claim that, as a consequence of Mr Tipper's employment with Woolworths and his exposure to asbestos whilst so employed, he contracted mesothelioma and had suffered pain, injury, loss and damage as a result of the negligence of Woolworths and breaches of contractual obligations owed to Mr Tipper by Woolworths.
6. Mr Tipper was born in August 1939 and so he was 80 years of age at the time of his death.
7. The affidavit of Ms Forbes reveals as well that, apart from the aspects of the claim based in Queensland which I have mentioned so far, there are other features which relate to Queensland and not New South Wales. Anita Tipper and Lisa Ann Tipper reside in Queensland, the late Mr Tipper's treating medical practitioners are based in Queensland, any witnesses of fact are likely to be resident in Queensland and the solicitors for Woolworths and Anita Tipper and Lisa Ann Tipper are based in Queensland.
8. It is noted as well that, following the passing of Mr Tipper, there is no urgency in respect to the prosecution of proceedings within the jurisdiction of the State of New South Wales.
9. The orders which are sought in the Summons are that the proceedings presently in the Dust Diseases Tribunal of New South Wales be removed into the Common Law Division of the Supreme Court of New South Wales pursuant to s.8 Cross-vesting Act. A further order is sought that, after the removal of the proceedings into this Court, they be transferred to the Supreme Court of Queensland pursuant to s.5(2) Cross-vesting Act.
10. It is also proposed that the costs of the Summons filed on 8 October 2020 in this Court and the costs of the proceedings in the Dust Diseases Tribunal of New South Wales be costs in the cause in the proceedings in the Supreme Court of Queensland.
11. The Court has been assisted by submissions made in writing by Ms Hillier, counsel for Woolworths. In addition, Mr Tzouganatos of counsel appears for Anita Tipper and Lisa Ann Tipper. He has stated that his clients do not oppose the making of the orders sought by Woolworths.
12. Section 5(2)(b)(iii) Cross-vesting Act relevantly provides:

“[Where it appears to the first court that] it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court.”

13. The principles to be applied on this application are not in doubt. As Gleeson CJ, McHugh and Heydon JJ said in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [22], the approach stated in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 and James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 should be followed.
14. There is no judicial discretion involved under s.5(2)(b)(iii) Cross-vesting Act. If the Court determines that a transfer of the proceedings is in the interests of justice, then it should transfer the proceedings: BHP Billiton Ltd v Schultz at [14], [62]-[63] and [222]. No weight is to be given to the fact that the proceedings may have regularly invoked the jurisdiction of the Dust Diseases Tribunal of New South Wales where the proceedings were commenced: BHP Billiton Ltd v Schultz at [25], [72]- [77] and [258].
15. What the Court is required to do is to endeavour to predict, on the available material, which of the Dust Diseases Tribunal of New South Wales and the Supreme Court of Queensland appears to be the more appropriate forum having regard to the interests of justice. What is required is a “nuts and bolts” management decision as to which Court, in the pursuit of the interests of justice, is the more appropriate to hear to determine the substantive dispute: Bankinvest AG v Seabrook at 714.
16. It is not necessary that it should appear that the Dust Diseases Tribunal of New South Wales is a “clearly inappropriate” forum. It is both necessary and sufficient that, in the interests of justice, the Queensland Court is more appropriate: BHP Billiton Ltd v Schultz at [14].
17. Woolworths bears the persuasive onus of showing that transfer to Queensland is appropriate in all the circumstances: James Hardie & Coy Pty Ltd v Barry at [100].
18. The relevant principles were summarised helpfully by Harrison J in British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83 at [25] and [26].
19. Identification of connecting factors with respect to the appropriate forum is an important feature on the application. It is clear that the exposure alleged on the part of the late Mr Tipper to asbestos relates to his employment in Queensland. There is no allegation that the late Mr Tipper was exposed to asbestos dust or fibres in New South Wales. In addition, the factors which bear upon convenience or expense, which are also pertinent to the enquiry, all point to Queensland being the appropriate forum for the determination of the proceedings. I have outlined those factors earlier in this judgment, being the connection of the parties to the State of Queensland, the medical practitioners, the witnesses and the legal practitioners. Indeed, there is no existing connection to the State of New South Wales at all.
20. I note, as I have observed earlier, there is no opposition to the application made by Woolworths for transfer of the proceedings to the Supreme Court of Queensland.
21. Accordingly, for these reasons, I make Orders 1, 2 and 3 in accordance with the Short Minutes of Order which I have signed and dated today.

**********