Amaca Pty Limited v Mundy

[2008] NSWSC 604

CITATION:	AMACA PTY LIMITED v MUNDY & ORS [2008] NSWSC 604
HEARING DATE(S):	Thursday 5 June 2008
JUDGMENT DATE :	16 June 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Proceedings commenced in the Dust Diseases Tribunal (NSW) to be transferred to the Supreme Court of South Australia - orders in terms of paragraphs 3 and 4 of the summons filed on 5 June 2008 for the transfer of the proceedings to the Supreme Court of South Australia. Stay in relation to paragraph 4 of the summons for 28 days from 13 June 2008.
CATCHWORDS:	Application to cross-vest proceedings in the nature of asbestos litigation by second defendant, as alleged asbestos manufacturer, to the proceedings in the Dust Diseases Tribunal of NSW to the Supreme Court of South Australia – new legislation in South Australia – Dust Diseases Act 2005 (SA) – establishes specialist jurisdiction in the District Court of South Australia – whether order for transfer of proceedings may be made under s.5(2)(b)(iii), Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) – whether the proceedings can be said to be “in interests of justice that the relevant proceeding be determined by the Supreme Court of another State …” when transfer to District Court anticipated – whether Supreme Court of South Australia the “natural” forum – connecting factors – preponderance of factors favour Supreme Court of South Australia – interests of justice – issue of substantial delay – whether material prejudice – proceedings should be transferred.
LEGISLATION CITED:	District Court Act 1991 (SA) Dust Diseases Act 2005 (SA) Dust Diseases Tribunal Act 1989 (NSW) Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 (NSW) Electricity Trust of South Australia Act 1946 (SA) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Service and Execution of Process Act 1912 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	BHP Billiton Limited v Schultz (2004) 221 CLR 400 Goldamere v Metso Minerals [2007] NSWSC 980 James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357 Pozniak v Smith (1982) 151 CLR 38 Valceski v Valceski [2007] NSWSC 440
PARTIES:	AMACA PTY LIMITED v MUNDY, Mervyn John & ORS
FILE NUMBER(S):	SC No 2008/12685
COUNSEL:	P: D J Hooke 1D: P C B Semmler SC 2D: G P F Rundle 3D: L Redman
SOLICITORS:	P: Ellison Tillyard Callanan 1D: Turner Freeman 2D: Thompson Cooper Lawyers Pty Limited 3D: Makinson & d'Apice

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

MONDAY 16 JUNE 2008

No 12685 of 2008

AMACA PTY LIMITED (UNDER NSW ADMINISTERED WINDING-UP) v MERVYN JOHN MUNDY & ORS

JUDGMENT

1 HIS HONOUR: On 5 June 2008, a summons was filed on behalf of the plaintiff wherein orders were sought that proceedings pending in the Dust Diseases Tribunal of New South Wales (No 167 of 2004) be removed into this Court pursuant to s.8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the “Cross-Vesting Act”) and an order under that Act pursuant to s.5(2)(b)(ii) and/or (iii) that the proceedings be transferred to the Supreme Court of South Australia.

2 The summons was supported by two affidavits of Nicholas Prentice, solicitor, sworn respectively 3 and 5 June 2008 and the affidavit of Christopher Anderson sworn 5 June 2008.

3 The first defendant, Mervyn John Mundy, relied upon two affidavits, that of David Stuart Taylor, solicitor, sworn 4 June 2008 and that of Anne Margaret Hoffmann, solicitor, sworn 4 June 2008.

Facts

4 The first defendant, Mervyn John Mundy, is 58 years of age and lives in Port Augusta, South Australia. He was employed by the Electricity Trust of South Australia at the Port Augusta Power Station between 1960 and 2007.

5 In the proceedings in the Dust Diseases Tribunal (the Tribunal), he alleges that in the course of his employment he was exposed to asbestos dust and fibre and consequently contracted the diseases of asbestos related pleural disease and asbestosis. In addition, he claims that he suffers from a adjustment/anxiety disorder associated with the “asbestos conditions”.

6 On 25 May 2004, a statement of claim was filed in the Tribunal. The defendants before the Tribunal were:-

• The Electricity Trust of South Australia (now known as RESI) (as the alleged employer).

• Amaca Pty Limited (formerly James Hardie & Co Pty Limited).

7 Following the filing of notices of appearance in June 2004, the matter was then the subject of directions in the Tribunal (7 June 2004). Both defendants in those proceedings requested further and better particulars of the claim (RESI – 16 July 2004 and Amaca – 1 June 2004).

8 On 24 August 2004, RESI filed a defence and a subsequently defence to the further amended statement of claim on 8 May 2008. Amaca filed its defence on 30 September 2004.

9 On 23 February 2005, the solicitors for the first defendant, Mr Mundy, sent to RESI and Amaca a letter notifying material to be relied upon pursuant to s.25(3) of the Dust Diseases Tribunal Act 1989 (NSW).

10 On 24 February 2005, the solicitors for Mr Mundy filed a notice pursuant to s.25B of the latter Act, which was served on both RESI and Amaca.

11 In the period of February to May 2005, pursuant to leave, interrogatories were served on RESI and Amaca and each, in due course, provided verified answers to interrogatories.

12 On 24 August 2004, Amaca filed a Notice of Admissions and on 21 September 2004, the solicitors for Amaca relied upon material pursuant to s.25(3) of the Dust Diseases Tribunal Act 1989 (NSW).

13 On 21 December 2004, short minutes of orders by way of further directions were entered by consent.

14 Mr Mundy has been medically examined in relation to the abovementioned asbestos conditions. Amaca served a report of Dr Antic on 21 April 2005 and reports of Dr Holmes on 1 May 2008.

15 On 16 February 2005, Amaca had the plaintiff examined by an occupational therapist.

16 On 17 February 2005, a Part 33 Statement of Particulars was served. Amaca served an affidavit on 14 April 2005 and on 21 April 2005 the matter was listed for further directions.

17 The proceedings were then set down for hearing in Adelaide on 12 May 2005 by consent.

18 On unspecified dates, medical reports of Professor Alpers and Dr Antic were served on Mr Mundy’s solicitors which led them to make an application on 3 May 2005 to vacate the hearing date, and an order vacating the hearing was made by the Tribunal.

19 In 2005, the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 (NSW) was made and a Claims Resolution Procedure introduced.

20 In late 2006, Mr Mundy’s solicitors sought the consent of RESI and Amaca to the filing of a Further Amended Statement of Claim. The amendments sought:-

(1) To correct an error in relation to the last date of exposure to asbestos dust and fibre.

(2) To claim damages for economic loss.

(3) To properly plead the claim for gratuitous care and replacement services under South Australian law.

(4) To plead a psychiatric condition.

(5) To plead provisional damages.

(6) To claim exemplary damages against both defendants.

21 On 10 May 2007, the solicitors for Amaca indicated that they believed the matter should be removed from the Claims Resolution Procedure by reason of the issue of exemplary damages.

22 In February 2008, the parties executed a Consent Notification removing the matter from the Procedure.

23 On 3 April 2007, particulars of exemplary damages against RESI and Amaca were filed.

24 On 7 February 2008, Mr Mundy sought leave from the Tribunal to file a Further Amended Statement of Claim, as had been proposed in 2007.

25 On 3 March 2008, leave was granted and a Further Amended Statement of Claim was filed on 4 March 2008.

26 Short minutes of orders were entered by consent requiring service of all expert and medical material by 30 April 2008.

27 On 5 May 2008, the proceedings were listed before the Tribunal for further directions. Amaca and RESI sought time to serve a report of a psychiatric and an economic loss report. Leave was refused to file such additional material.

28 On 5 May 2008, the proceedings were set down for hearing in Adelaide on 17, 18, 19 and 20 June 2008.

29 On 29 May 2008, the solicitors for the plaintiff, Amaca, indicated to Mr Mundy’s solicitors that they were instructed to seek to have the matter cross-vested to South Australia. That was the first occasion that the plaintiff indicated that such an application was to be made.

30 In these proceedings, the affidavit evidence filed on behalf of Mr Mundy, established that senior and junior counsel have been briefed and flights and other arrangements had been made for the hearing in Adelaide commencing 17 June 2008.

The first defendant’s (Mr Mundy) affidavit evidence

31 Mr Taylor’s affidavit stated that his client is a 58 year old man who presently lives in Port Augusta.

32 He referred to the fact that on 5 May 2008, the matter was listed before the Tribunal for further directions at which time Amaca and RESI sought further time to serve a report of a consultant psychiatrist and an economic loss report. At that stage, those defendants were not permitted to rely upon any additional material.

33 Mr Taylor also stated that his client was relieved when advised that the matter had been set down for hearing and became anxious and distressed when told that one of the defendants before the Tribunal had sought to have the matter made the subject to a cross-vesting order.

34 Ms Hoffmann’s affidavit provides information based on her experience of dealing with dust diseases litigation commenced in New South Wales and cross-vested to South Australia.

35 In paragraph 3, she stated that, in the event of a cross-vesting order being made, the procedure then is that the case is on application listed before the Supreme Court of South Australia where an order transferring it to the specialist list in the District Court of South Australia is made. On the making of such an order, the case is then listed before the District Court for directions.

36 Ms Hoffmann’s affidavit provides evidence as to the time it takes to have the matter listed. The particular matters to which she refers and with which she was involved were listed before the Supreme Court of South Australia for the first time in September 2006 and then by the District Court of South Australia for the first directions hearing, called a Status Hearing, in October 2006.

37 In the District Court, there is a requirement for documents particularising exemplary damages to be filed. Ms Hoffmann stated that in her experience it takes six months for a non-urgent matter to be progressed from the Status Hearing to a Listings Conference. She stated that on 4 June 2008, she spoke to the Deputy Listings Registrar of the District Court of South Australia and inquired, assuming that she appeared in a matter seeking a listing for the trial of a non-urgent matter for four days, when it would be listed. The Deputy Listings Registrar indicated that the earliest would be the week commencing 8 September 2008.

38 Ms Hoffmann took issue with the reference to Ms Knight’s account as recorded in Mr Prentice’s affidavit sworn 3 June 2008. Ms Knight, as solicitor, informed Mr Prentice that she acts for Amaca on asbestos claims in South Australia and considered it would be possible to have a hearing date in the Dust Disease List, District Court before the end of September if the parties were ready. Ms Hoffmann suggested that the time would be longer than that, as stated in her affidavit.

39 The plaintiff filed a notice of motion seeking to have the proceedings in the Tribunal stayed pursuant to s.20 of the Service and Execution of Process Act 1912 (Cth). An order was also sought in that application for the transfer of the proceedings to the District Court of South Australia. It was conceded in these proceedings that that application, so far as the latter order was concerned, was misconceived. I have been informed that his Honour O’Meally P declined to entertain the notice of motion and indicated that the appropriate course if it wished to proceed was for the plaintiff to move this Court pursuant to the Cross-Vesting Act.

40 The plaintiff relied, inter alia, in the present application upon the following matters:-

(1) The proceedings before the Tribunal are not attended by any particular urgency. In this respect, it was stated that Mr Mundy was relatively young and his condition was not critical or life-threatening.

(2) Trial dates previously fixed in mid 2005, were vacated on Mr Mundy’s application. This, however, I note was said to have arisen by virtue of the late service of medical reports on the behalf of the defendants as recorded above.

(3) The trial date commencing on 17 June 2008 was fixed only a little over a month ago over the plaintiff’s objection.

(4) The affidavit evidence disclosed that the trial date in the Dust Diseases List in the District Court of South Australia could be expected before the end of September 2008. I have noted above that there is a dispute as to whether that is an accurate forecast.

(5) That the amended statement of claim seeks to rely upon s.9(2) of the Dust Diseases Act 2005 (SA) which provides what is described as a novel provision for the award of exemplary damages. This claim only arose by way of the amendment to which I have earlier referred. It was argued that the interpretation and application of s.9(2) is a matter that should be left for a South Australian Court to consider.

The application for a cross-vesting order

41 The order sought in the summons was that the proceedings No. 167 of 2004 be removed from the Dust Diseases Tribunal of New South Wales into this Court pursuant to s.8 of the Cross-Vesting Act (order 3) and that the proceedings be transferred to the Supreme Court of South Australia (order 4).

42 Mr D J Hooke, of counsel, who appeared on behalf of the plaintiff, contended that an order should be made, notwithstanding the lateness in the application and the fact that the proceedings have been set down for hearing in Adelaide before the Tribunal commencing 17 June 2008. In that respect, Mr Prentice, in his affidavit frankly conceded that there had been extensive delay, but that it was only in the light of the advice of senior counsel’s advice recently received that the summons was filed.

43 Mr Hooke submitted that, whilst delay is an important matter for the Court to assess, the real question is whether or not material prejudice would arise to the first defendant should the proceedings be transferred to the Supreme Court of South Australia. I will return to this aspect shortly.

44 The provisions of s.5(2)(b)(iii) of the Cross-Vesting Act provide as follows:-

“5(2) Where:-
(a) a proceeding (in this sub-section referred to as the ‘relevant proceeding’) is pending in the Supreme Court (in this sub-section referred to as the ‘first court’); and
(b) it appears to the first court that:-
(i) …
(ii) …
(iii) 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.”

45 The identification of the interests of justice referred to in this provision requires a consideration of connecting factors so as to enable the Court to identify the “natural forum” for the resolution of the proceedings. In Valceski v Valceski [2007] NSWSC 440 at [69], Brereton J, in relation to the basis upon which s.5 of that Act was to be applied, observed:-

“69. That leads to the third factor, the interests of justice. The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so – for which purpose it is both necessary and sufficient that the transferee court be the ‘more appropriate’ forum [ BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 421 [14], 434-5 [63]]. In identifying the ‘more appropriate forum’, relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions, and the ‘connecting factors’ described by Lord Goff in Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460 at 478 – including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction [ BHP v Schultz , 422 [18]]. Consideration of relevant connecting factors may identify a ‘natural forum’ [ BHP v Schultz , 423 [19]; cf British American Tobacco Australia Limited v Gordon [2007] NSWSC 230, [44]]. As Schultz makes clear, the interests of justice concern those of both parties, … rather than the selection of the most advantageous, or at least disadvantageous forum for one of them, the ‘interests of justice’ are to be judged by more objective factors, such as facilitate identification of the ‘natural forum’, in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be [cf British American Tobacco v Gordon , [47]].”

46 In James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357, Spigelman CJ at 361, [7] observed:-

“To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross-Vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of ‘appropriate court’, although other factors may need to be assessed in the process of determining where the interests of justice lie.”

47 As the Chief Justice went on to observe in Barry, the test of location of a tort is one of substance (at p.361). In the present case, the location of the alleged tort was, of course, South Australia.

48 In relation to the provisions of s.5(2)(b)(iii) of the Cross-Vesting Act, the Chief Justice in Barry also observed at 361, [3]:-

“This power does not confer a discretion, in the sense that the Court exercises a power of choice. The Court makes a judgment as to what ‘the interests of justice’ require and, having made the judgment that the proceedings ought be determined in another court, the Court is obliged to transfer the proceedings …”

49 An exception may arise where it is clear that “substantial justice” cannot be done to a plaintiff in what is otherwise “the appropriate” forum: Goldamere v Metso Minerals [2007] NSWSC 980 per McDougall J at [10]. In the present case, no-one submitted that substantial justice could not be done to the first defendant, either in the Tribunal or in the Supreme Court of South Australia.

50 In BHP Billiton Limited v Schultz (2004) 221 CLR 400, Kirby J observed:-

“161. The key purpose of the residual criterion expressed by the legislatures of Australia in the common form of the Cross-Vesting Acts has been, for this purpose, to follow the approach of Lord Goff (in Spiliada Maritime Corporation v Cansulex Limited (supra) …

…


163. … This was to the effect that the ‘more appropriate’ forum was the ‘natural forum’ for the trial of the action. This was described as being ‘that with which the action had the most real and substantial connection’ …

…
170. Normally, ‘the interests of justice’ of all parties within Australia will require the transfer of proceedings to be determined by the Supreme Court of another State or of a Territory where that Court, rather than the court of the forum selected by the plaintiff, is the ‘natural forum’ being that ‘with which the action has the most real and substantial connection’.”

51 The plaintiff, in support of the present application under the Cross-Vesting Act, relied upon the following matters:-

(1) The first defendant’s employment and alleged exposure to asbestos occurred in South Australia.

(2) The first defendant is a resident of South Australia.

(3) All witnesses, both lay and expert, are resident in South Australia.

(4) The employer, RESI Corporation, is a statutory corporation of South Australia created by the Electricity Trust of South Australia Act 1946 (SA).

52 The plaintiff contended that all these connecting factors (notwithstanding that the plaintiff was incorporated in New South Wales) indicated that South Australia is the natural forum for the first defendant’s action.

53 Mr Hooke provided a copy of the Dust Diseases Act 2005 (SA), which commenced on 8 February 2006. That legislation provides, it was said, for the District Court of South Australia to have a similar capacity to deal with litigation as that possessed by the Tribunal.

54 Accordingly, it was submitted that, in the present case, it was difficult to conceive a case more closely related to the State of South Australia and more appropriate to be heard by a court of that State, in particular, having regard to the specialist procedure now available in the District Court of South Australia.

55 Mr Hooke additionally relied upon the fact that his client and RESI Corporation both made a concession as set out in paragraph 15 of the written outline submission on behalf of the plaintiff in the following terms:-

“Of course, in the present case, subject to Mr Mundy’s exposure to asbestos from the plaintiff’s products, liability is otherwise not in issue and the only matter which will fall for determination is the assessment of damages, including any exemplary damages under s.9(2) of the Dust Diseases Act 2005 (SA).”

56 Mr G Rundle of counsel, who appeared for RESI, supported the plaintiff’s application and adopted his submissions (transcript, p.32). Mr Rundle also there confirmed that his client made the same concession as set out in the preceding paragraph.

57 As noted earlier, the further amended statement of claim filed on 4 March 2008 includes a claim for “exemplary damages pursuant to s.9(2) of the Dust Diseases Act 2005 (SA)”.

58 It appeared to be common ground between the parties that s.9(2) is a novel provision governing an injured person’s entitlement to exemplary damages. I have been informed to date there has been no judicial consideration of its provisions. Section 9(2) is concerned, not with the quantum of damages, but to the circumstances in which exemplary damages may be awarded. Mr Hooke raised a number of issues which he said are relevant to the possible application of the provision.

59 I will return to the significance of the exemplary damages claim and s.9(2). Before doing so, I turn to the issues raised by Mr Semmler SC, on behalf of the first defendant, Mr Mundy.

60 Mr Semmler referred, in his oral submissions, to the Dust Diseases Act 2005 (SA), to the issue of delay, the issue of the distress and/or anxiety that would be occasioned to his client if the proceedings were not to be heard in accordance with the present schedule, that the exemplary damages claim under s.9(2) was equally capable of interpretation application by a New South Wales Court and that, so far as the specialist procedures available under the Dust Diseases Act 2005 (SA) and those available under the Dust Diseases Tribunal Act (NSW) the position was “neutral”.

61 Mr Semmler made a submission that the provisions of s.5(2)(b)(iii) of the Cross-Vesting Act applied to a proceeding that would be “determined by the Supreme Court of another State or of a Territory” and that in this case, because the matter would almost certainly be heard in the District Court of South Australia, it would only be by a “tortured” construction of s.5(2)(b)(iii) that it could be said that the section applied.

62 I, with respect, disagree. The Cross-Vesting Act focuses upon the “jurisdiction” of federal, State and Territory courts and to the “cross-vesting of jurisdiction” between those courts. There is no issue, of course, but that the Supreme Court of South Australia does have “jurisdiction” to hear and determine the proceedings initiated by the first defendant should the proceedings be transferred to that court.

63 Where proceedings are properly brought in an Australian court, whether by the filing of originating process or by a transfer pursuant to an order made under s.5(2) of the Cross-Vesting Act, the Court in question is subject to a duty to exercise its jurisdiction.

64 The Supreme Court of South Australia has conferred upon it by the provisions of s.24 of the District Court Act 1991 (SA) a power to order the transfer of an action to another court. Section 24(1) provides that the Supreme Court of South Australia, or a Judge or Master of that Court, may order:-

“(b) That civil or criminal proceedings in the Supreme Court that lie within the jurisdiction of the District Court be transferred to the District Court.”

65 The fact that the Supreme Court of South Australia has a power in the nature of a statutory discretion to transfer an action in relation to which it has jurisdiction to another court and the fact that it may, at a subsequent time after the making of a cross-vesting order exercise that power, does not in any way lead to the conclusion that this Court is thereby prevented from making an order to transfer the relevant proceeding.

66 There may, of course, be cases that are transferred to the Supreme Court of South Australia in respect of which, by reason of particular matters, that Court determines that it should hear and determine the action. In other cases, perhaps, most cases, it may determine that the preferable course is for the action to be transferred so that it can be dealt with in accordance with the specialist jurisdiction now conferred upon the District Court of South Australia.

67 These are, however, matters for the Supreme Court of South Australia to determine at a later point in time as an incident of the jurisdiction vested in it. How that court may subsequently exercise its statutory discretion to transfer is not to the point. Up to that time, it undoubtedly has “jurisdiction”. The fact that it also has the statutory power to which I have referred cannot detract from the application of s.5(2)(b)(iii) of the Cross-Vesting Act should this Court determine, as matters presently stand, that it is “in the interests of justice” to transfer the proceedings to the Supreme Court of South Australia.

68 Mr Hooke sought to rely upon s.8 of the Cross-Vesting Act as indicating that “the Act clearly envisages the transfer of proceedings between inferior courts or tribunals by means of or via the Supreme Court of a State …” (transcript, p.32). He observed that an order to that effect was sought in paragraph 3 of the Summons. The consequent submission was that it is then a matter for this Court to determine whether an order should be made under s.5(2)(b)(iii) of the Act. He submitted that “determined” in that provision meant “dealt with” and it was a matter for the Supreme Court as the transferor court to determine whether there should be a transfer order made. This latter submission has essentially been dealt with above and therefore I need not expound on what I have earlier written.

69 Accordingly, I do not consider that the submission made on behalf of the first defendant in relation to the provisions of s.5(2)(b)(iii) of the Cross-Vesting Act identifies or provides an obstacle or an impediment to the making of an order if this Court is otherwise satisfied that it is in the interests of justice to do so.

In the interests of justice

70 This is plainly a case in which there is such a preponderance of connecting factors with one forum (South Australia) that it can be readily identified as the most appropriate, or natural forum: Schultz (supra) at 423 per Gleeson CJ, McHugh and Heydon JJ.

71 There are, in addition, two other considerations. The provision of s.9(2) of the Dust Diseases Act 2005 (SA), generally speaking, is capable of being seen as a beneficial provision so far as an entitlement to exemplary damages is concerned when compared to rights under the common law to such damages. In circumstances where the provision is yet to be the subject of any judicial consideration, the question as to whether the courts of the State that has enacted such a provision should pronounce upon its interpretation and application is, in my opinion, a relevant consideration on the present application. In this respect, Mr Hooke placed reliance upon dicta in Pozniak v Smith (1982) 151 CLR 38. That case involved a question of remitter to a State Supreme Court in proceedings between residents of different states where issues as to the balance of convenience were considered. The joint judgment at 47, observed:-

“… the only safe course, in a case where the relevant law and the competing jurisdictions is materially different in its effect on the rights of the parties, is to remit it to the State whose law has given rise to the cause of action. As Brennan J observed in Robinson v Shirley , the power ‘is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff’s rights or correspondingly alter a defendant’s obligations’.”

72 In Schultz (supra), Callinan J (at 490 to 491) referred to the comparison between substantive provisions in the legislation of different states on the law of limitations stating:-

“… the limitations law of South Australia as substantive law, would, as the parties accept, apply. In general, it is better that the laws of a State be construed by the Supreme Court of that State for the obvious reason that that Court will be more familiar with, and will construe such laws on a frequent and consistent basis.”

73 Although s.9(2) of the Dust Diseases Act 2005 (SA) is not, on what I have been informed from the bar table, as yet a provision that South Australian Courts have necessarily acquired a familiarity with, nonetheless, there remains, in my opinion, an “obvious reason” as to why it is preferable for the Courts of South Australia to construe and apply its own legislation especially as it may be called upon to do so in the future on a frequent and consistent basis.

74 In this respect, Gummow J in Schultz (supra) also observed (at 444):-

“… it is South Australia and the Courts of that State that provide the forum which ‘gives effect to the reasonable expectation of parties’ … and to the policy manifested in the transfer provisions of the Cross-Vesting Act. That has the advantage for the ready resolution of the litigation that the lex fori and the lex loci delicti coincide …”

Determination

75 It is apparent that the jurisdiction of the Supreme Court of South Australia (or in the event that that court determines, the District Court of South Australia) is the natural forum for the proceedings. Although there is some dispute on the evidence before me as to precisely how long it may take for a hearing to take place, the parties have indicated, as one would expect, that they would take advantage of all the work and processes that have already taken place in the Dust Diseases Tribunal and that that would assist in expediting a hearing if the proceedings are to be transferred to the Supreme Court of South Australia under the Cross-Vesting Act.

76 A matter of concern has been the issue of delay and whether or not there is any consequential disadvantage or other detriment to the first defendant such as would require in the interests of justice that the proceedings be heard and determined in the Tribunal on 17 June 2008.

77 In considering the present application, I have had specific regard to the medical condition of the first defendant. In applications made for a transfer of proceedings in what might be referred to as “asbestos litigation”, courts have had specific regard to the medical condition of plaintiffs. Where a person suffering from an asbestos disease is in a critical condition, the urgency of the case has, in particular circumstances, been an important factor in determining where the interests of justice lie.

78 As earlier indicated, it was accepted by the parties that the asbestos conditions of the first defendant is not, on the evidence, critical in the sense of giving rise to urgency. I have also had regard to the psychological condition of the plaintiff, being the alleged adjustment or anxiety disorder. Mr Semmler referred to a diagnosis by a psychiatrist, Dr Ewers (transcript 5 June 2008, p.20). There is no report from that doctor in the evidence before me on this application. I raised this issue with the parties before making orders on Friday 13 June 2008 and Mr Semmler fairly stated, in effect, that he was not putting forward the psychological condition as one that could be said to be critical in the sense of giving rise to urgency.

79 The delay, although extensive, has been mitigated to some extent by two factors. The first is that the Dust Diseases Act 2005 (SA) only came into operation in February 2006. The second is that it was only recently that the statement of claim was amended to rely upon the new provisions of s.9(2) of that Act to claim exemplary damages.

80 I consider, in all the circumstances referred to above, that the delay itself, though substantial, is not in itself such as to warrant the refusal of the application.

81 I am of the opinion that, provided appropriate orders are made whereby the plaintiff bears the costs thrown away by an order being made under the Cross-Vesting Act, that delay is not of such weight as to tilt the balance in favour of the first defendant.

Orders

82 On 13 June 2008, I made orders in terms of paragraphs 3 and 4 of the summons. On Mr Semmler’s application, I granted a stay on order 4 for a period of 28 days.

83 The orders made were made upon the condition that the plaintiff pay the first defendant’s costs thrown away and I note that the plaintiff has given an undertaking to that effect.

Costs

84 Mr Hooke stated that his client did not seek an order for costs in its favour should it be successful on this application. Accordingly, no such order is made.

85 Mr Semmler contended that, regardless of the outcome of this application, his client should have an order for costs made in his favour.

86 On 13 June 2008, I granted leave to the first defendant to file any affidavit evidence in support of its application for costs. Accordingly, I will defer finally ruling on such costs until I have considered any further evidence and submissions. I will deal with that matter by way of separate judgment and order when the matter comes back before me at 2.15 on Monday 16 June 2008.

**********