Case report BHP Billiton PDF

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BHP Billiton v Schultz...

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CITATION

BHP Billiton Limited v Schultz [2004] HCA 61

Parties

BHP Billiton Limited Appellant Trevor John Schultz & Ors Respondent(s) High Court of Australia; 7 Judges sitting 07 December 2004 Gleeson CJ; McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ On appeal from the Supreme Court of the NSW

Court Date Judges

A. Facts:  Mr Schult, who lives in SA, suffers from asbestos – related pleural disease. He worked at the BHP shipyard in Whyalla from 1957 to 1964 and 1968 to 1977.  In 2002 he initiated proceedings in the NSW Dust Diseases Tribunal against BHP, claiming negligence, breach of contract, breach of statutory duty.  Mr Schultz also took action against the other corporations for negligent manufacture and supply of materials used in Whyalla. These parties did not take part in the NSW Supreme Court or the High Court, but there are cross-claims between them and BHP. B. Summary: BHP unsuccessfully applied to the Supreme Court before Sully J to remove the matter from the DDT into that court pursuant to the Jurisdiction of Court (Cross-Vesting) Act and then to transfer the matter to the SA Supreme Court under section 5. - The law of SA would be the substantive law governing Mr Schultz’s claim and the lay witness and most medical witnesses are in SA. Mr Schultz argued that NSW law could govern some of the claims against the other companies and the cross claims. Under section 30B of the SA Supreme Court Act, there is only one assessment of damages, although there is scope for an interim payment. -

The capacity of a court to deal with a case expeditiously may be in the interests of justice. Sully J refused BHP’s application, holding that the interests of justice did not require the making of orders for the removal and cross vesting of the proceedings. He held that the choice of forum of Mr Schultz was not to be lightly overridden and that he should retain the advantages of section 11A of the DDT Act.

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BHP appealed to the High Court.

C. Decision: The Court unanimously allowed the appeal – (1) section 5 application is to proceed on the basis of whether it is in the interests of justice. (2) The interests of justice necessarily include justice to all parties and not applying the Act in a way that favours the rights of one party over another by rewarding the party selecting the initial venue with significant substantive advantages for doing so.

(3) ‘Interests of justice’ re decision whether to transfer requires identifying a more appropriate forum with no specific emphasis in favour of the choice of either party. Where transfer application is made, a party has validly invoked the jurisdiction of State court. That fact must be neutral. It cannot predominate in the evaluation of the connecting factors in ascertaining which of the competing fora is more appropriate. (4) S 5 assumes the regular invocation of jurisdiction, which does not favour the disposition of a transfer by refusing it on the basis that to allow it could not be in the interests of justice. (5) Therefore, shows that the P’s choice of tribunal and the reasons for it are not to be taken into account re transferring. However, factors relevant to the choice of forum could include: o the place or places where the parties and/or the witnesses reside or do business o the location of the subject matter in dispute o the importance of local knowledge to the resolution of the issues o the law governing the relevant transaction o the procedures available in different courts o the likely hearing dates in different courts o whether it is sought to transfer proceedings to a specialised court (eg Family Court)...