Workers Compensation Default Insurance Fund Manager (ABN 54026845190) v Timothy John Hartnett Hutchinson as Legal Personal Representative for the Estate of the Late John Edward Hutchinson & Ors [2023] NSWSC 1005 (22 August 2023)

Last Updated: 22 August 2023

Supreme Court New South Wales

Case Name:	Workers Compensation Default Insurance Fund Manager (ABN 54026845190) v Timothy John Hartnett Hutchinson as Legal Personal Representative for the Estate of the Late John Edward Hutchinson & Ors
Medium Neutral Citation:	[2023] NSWSC 1005
Date of Orders:	22 August 2023
Decision Date:	22 August 2023
Jurisdiction:	Common Law
Before:	Cavanagh J (On the papers)
Decision:	(1) An order that NSW Dust Diseases Tribunal Proceedings No. 2022/362214 be transferred 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 (NSW). (2) An order that the proceedings referred to in paragraph 1 be transferred to the Supreme Court of the Australian Capital Territory, pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).
Catchwords:	CIVIL PROCEDURE — proceedings commenced in NSW Dust Diseases Tribunal — cross vesting application — transfer to Supreme Court of NSW —transfer to ACT Supreme Court — interests of justice
Legislation Cited:	Workers Compensation Act 1951 (ACT), s 166 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5(2), 5(2)(b)(iii), 8, 8(b)(ii)
Category:	Principal judgment
Parties:	Workers Compensation Default Insurance Fund Manager (ABN 54026845190) (Plaintiff) Timothy John Hartnett Hutchinson as Legal Personal Representative for the Estate of the Late John Edward Hutchinson (First Defendant) Jane Cadona trading as Fyshwick Builders Suppliers (Cancelled on 15 July 2018) (Second Defendant) Amaca Pty Limited (ACN 000035512) (Third Defendant)
Representation:	Solicitors: MinterEllison (Plaintiff) Slater and Gordon Lawyers (First Defendant) Collaery Lawyers (Second Defendant) Mills Oakley (Third Defendant)
File Number(s):	2023/144763
Decision under appeal:

JUDGMENT

1. By way of a summons filed on 5 May 2023, the plaintiff seeks orders that proceedings that are currently being pursued in the Dust Diseases Tribunal of New South Wales be transferred to the Common Law Division of the Supreme Court of NSW and then be transferred to the Supreme Court of the Australian Capital Territory (ACT).
2. The proceedings involve a claim for damages, being pursued by the first defendant, the legal personal representative for the estate of Mr John Edward Hutchinson (“the deceased”). The first defendant alleges that the deceased developed mesothelioma because of exposure to asbestos during two separate periods, with both periods of exposure occurring in the ACT.
3. The plaintiff manages the ACT Default Insurance Fund. The second defendant supports the application. The first and third defendants neither support nor oppose the orders sought in the summons.
4. The plaintiff submits and I accept that:
   • (1) All the relevant events occurred in the ACT;
   • (2) The law of the ACT is the appropriate law for determining the claim for damages;
   • (3) The plaintiff is a legal entity under s 166 of the Workers Compensation Act 1951 (ACT);
   • (4) All witnesses and parties are located in or around the ACT; and
   • (5) The legal representatives are located in and have connections in the ACT.
5. Having regard to ss 5(2)(b)(iii) and 8(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) the two steps that may be taken are:
   • (1) The proceedings are transferred to this Court; and
   • (2) The proceedings are then transferred to the ACT Supreme Court.
6. Having regard to all the matters to which I have already referred, I am satisfied it is in the interest in justice for the proceedings to be transferred to this Court and then the ACT Supreme Court. I am satisfied that the ACT Supreme Court is a more appropriate forum for the determination of the issues arising in the proceedings.
7. In the circumstances I make the orders sought in the summons:
   • (1) An order that NSW Dust Diseases Tribunal Proceedings No. 2022/362214 be transferred 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 (NSW).
   • (2) An order that the proceedings referred to in paragraph 1 be transferred to the Supreme Court of the Australian Capital Territory, pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).
   • (3) I make no order as to costs.

**********