BHP Billiton v Schultz (2004) 221 CLR 400

Facts: Pl (SA resident) was exposed to asbestos working for D (BHP Billiton) in SA and brought a claim in NSW Dust Diseases Tribunal (DDT). D is incorporated in VIC but carries on business in SA and NSW. NSW DDT could award damages for present and subsequent medical conditions; however SA law governs potential liability as lex loci delicti and in SA, the entirety of damages must be determined at time of trial. After transferring the case from DDT to NSWSC, D argued for transfer to SA as SASC is a more appropriate forum.

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5: Where proceedings between same parties & re the same subject matter are pending in 2 AU Superior Courts, the first Court shall transfer to the other where ‘in the interests of justice, the second court is more appropriate’.

Held: The proceedings were to be transferred to SA in the interests of justice. Pl worked and lived in SA and SA was the natural forum as the tort occurred there. Cross Vesting Act creates a mechanism for transferring if in the interest of justice, the second court is a more appropriate forum (without any specific emphasis on the choice of forum made by the Pl). 

Held (at [14]): “There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.”