Amaca Pty Ltd v Harris - [2005] NSWSC 622

No judgment structure available for this case.

CITATION:
AMACA PTY. LIMITED v. HARRIS [2005] NSWSC 622

HEARING DATE(S): Monday 20 June 2005

JUDGMENT DATE :

28 June 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Hall J at 1

DECISION:
Application dismissed. The applicant is to pay the defendant's costs of the motion.

LEGISLATION CITED:
Jurisdiction of Courts (Cross-Vesting) Act 1987
Dust Diseases Tribunal Act 1989

CASES CITED:
Bankinvest AG v. Seabrook (1988) 14 NSWLR 711
Ewins v. BHP Billiton Limited [2005] VSC 4
BHP Billiton Limited v. Schultz (2004) 79 ALJR 348
James Hardie & Co. Pty. Limited v. Barry (2000) 50 NSWLR 357
Spiliada Maritime Corporation v. Cansulex Limited (1987) AC 460
Bourke v. State Bank of NSW (1988) 22 FCR 378
B I Contracting Pty. Limited v. Haylock [2005] NSWSC 592
BHP v. Zunic [2001] NSWSC 561
James Hardie & Co. Pty. Limited v. Hall, as Administrator ad litem of the Estate of Putt (deceased) (1988) BC 9802005 NSWCA

PARTIES:
AMACA PTY. LIMITED
v. HARRIS, Bruce John

FILE NUMBER(S):
SC No. 11927 of 2005

COUNSEL:
Plaintiff: J. Sheller
Defendant: J.L. Sharpe

SOLICITORS:
Plaintiff: McInnes Wilson
Defendant: Turner Freeman

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

TUESDAY 28 JUNE 2005

No. 11927 of 2005

AMACA PTY. LIMITED v. BRUCE JOHN HARRIS

JUDGMENT

1 HIS HONOUR: The plaintiff, by its summons filed on 12 May 2005 seeks orders pursuant to s.8 and s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 in respect of proceedings brought in the Dust Diseases Tribunal of New South Wales by the defendant, Bruce John Harris. The order pursuant to s.5(2)(b)(iii) seeks an order that the proceedings in the Dust Diseases Tribunal be transferred to the Supreme Court of Queensland.

2 The summons is supported by the affidavits of Mark Vincent Victorsen, solicitor of Brisbane, sworn 20 May 2005 and 15 June 2005 and the affidavit of Emma Kate Sheehan, solicitor, sworn 17 June 2005.

3 Mr. Harris who was born on 23 November 1948, worked in the building industry in the Rockhampton area. He commenced to experience symptoms in February 2005 and was examined on 28 March 2005 by Dr. Andrew Scott, consultant thoracic physician. He underwent a lung biopsy procedure on 29 March and clinical and histological diagnosis confirmed that he was suffering form malignant mesothelioma.

4 The proceedings before the Dust Diseases Tribunal were commenced by way of statement of claim filed on 15 April 2005 and served that day on the defendant.

5 Mr. Harris, as plaintiff, claims common law damages from the plaintiff in these proceedings, the defendant before the Tribunal, in negligence arising out of his alleged exposure to a range of asbestos products manufactured by the plaintiff (Amaca) to the present proceedings.

6 The plaintiff left school in about March 1964 and then undertook an apprenticeship with a Rockhampton based builder until about 1973. It is alleged that in that period he worked extensively with James Hardie asbestos cement fibro sheeting.

7 In 1973, Mr. Harris worked for a builder, a Mr. Pritchard in Rockhampton, for approximately two years and in about 1975 he entered a partnership undertaking building work in the Rockhampton area subcontracting regularly to an entity known as Price Construction. In both employments, he claims that he was exposed to asbestos whilst working with fibro sheeting and other products manufactured by Amaca.

8 On 11 August 1980, he joined Telecom as a linesman and has worked for that entity since that time. He is presently on sick leave. In the course of this employment as a linesman, he, from time to time is said to have been exposed to asbestos when working on pits and pipes manufactured by the defendant, more particularly, in the earlier period of that employment.

9 On 11 May 2005, the plaintiff’s solicitors wrote to the solicitors for Mr. Harris advising that they were instructed that, subject to proof of exposure, duty of care, breach of duty and causation would not be in issue.

10 On 17 May 2005, following service of a report of Dr. Norris on 16 May 2005, the solicitors for Amaca wrote to the solicitor for Mr. Harris advising that their client would admit the diagnosis of mesothelioma in the claim.

11 On 8 June 2005, Amaca filed its defence to the statement of claim. In paragraph 4(a), it stated:-

“In answer to paragraph 5 of the Statement of Claim, Amaca:-

(a) admits that if the plaintiff was exposed as alleged to Amaca’s asbestos cement building products, that Amaca owed a duty of care to the plaintiff and that it breached the duty;

(b) admits that if the plaintiff suffers from mesothelioma, that the disease was caused by Amaca’s breach of duty.”

12 Mr. Victorsen’s affidavit sworn 15 June 2005 states that Amaca intends filing a notice of admission in terms of Exhibit MVVA2 to the affidavit. In that notice, Amaca admits manufacture of various specified products and makes admissions as to the composition and type of asbestos fibre contained in the various products referred to in the notice. Several of those products contained amosite asbestos fibre and a limited number contained crocidolite fibre, the latter being the most dangerous species of asbestos.

13 On 14 June 2005, the Tribunal listed the matter for a directions hearing before the President of the Tribunal, his Honour Judge O’Meally. The solicitor appearing on behalf of the plaintiff, Ms. Sheehan, objected to the matter being set down for hearing, however, his Honour proceeded to fix the proceedings before the Tribunal for hearing in Brisbane on 6 July 2005.

14 Mr. Harris opposes the cross-vesting order sought. His solicitor, Mr. Thady Arnold Blundell, swore an affidavit on 10 June 2005, which was filed on 14 June 2005. Mr. Blundell is an experienced practitioner in asbestos litigation including claims for damages for mesothelioma. Mr. Blundell’s evidence is that, in his experience, the health of a person suffering from mesothelioma can decline rapidly and death can be sudden. Whilst others may survive for a number of years, the course of the disease is said, by him, to be unpredictable. Exhibited to his affidavit is the report of Dr. Andrew Scott dated 3 June 2005. In that report, Dr. Scott states that there is no single accepted way in which to stage or predict a prognosis for mesothelioma patients. Based on current prognostic data, Mr. Harris’ one and two year survival rates are 21.3% and 3.5% respectively. Poor prognostic markers include his male sex, weight loss, chest pain and non-epithelial cell type of tumour.

15 In relation to evidentiary matters, Mr. Blundell’s affidavit indicates that Mr. Harris will rely upon material to be tendered pursuant to s.25(3) of the Dust Diseases Tribunal Act 1989. In particular, he states that despite admissions made by Amaca, material notified in a letter of 10 May 2005 in relation to s.25(3) of the Act is still relevant to the claim, in particular, items 13, 20, 28, 29 and 30 and items 1 to 5 of a letter of 10 June 2005, which deal with the causation of mesothelioma and its symptoms. Items 1 to 4 in the letter of 10 June 2005 are relevant to the identity of asbestos cement fibro products manufactured by the plaintiff. It is noted in this respect that the affidavit pre-dated the notice of admissions to which I have referred.

16 Mr. Blundell, in evidence, stated that he recently spoke to Mr. Harris by phone. Mr. Harris said his pain had been worsening as had his fatigue and he had been losing a kilogram of weight per week. Mr. Blundell was cross-examined on his affidavit evidence.

17 By summons filed on 12 May 2005, Amaca seeks two orders:-

(a) The removal of the proceedings from the Dust Diseases Tribunal to the Supreme Court of New South Wales pursuant to s.8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (“the Cross-Vesting Act”); and

18 The provisions of s.8(1)(b) provide:-

“8(1)

Where:-

…

(b) it appears to the Supreme Court that:-

(i) the relevant proceeding arises out of, or is related to, another

proceeding pending in the Federal Court, the Family Court or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court; or

(ii) an order should be made under this subsection in relation to the

relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court.”

19 The provisions of s.5(2), transfer of proceedings, provides::-

“5(2)

Where:-

(a) a proceeding (in this subsection referred to as the ‘‘relevant proceeding’’)is

pending in the Supreme Court (in this subsection referred to as the ‘‘first court’’); and

(b) it appears to the first court that:-

(i) the relevant proceeding arises out of, or is related to, another

proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;

(ii) having regard to:-

(A) whether, in the opinion of the first court, apart from this Act and any

law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;

(B) the extent to which, in the opinion of the first court, the matters for

determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice,

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(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.”

20 In written submissions made on behalf of the plaintiff, the following points and contentions are recorded:-

• Sufferers of mesothelioma have a life expectancy of approximately 12 months from the date of diagnosis.

• The exposures to asbestos fibre and dust alleged took place exclusively in Queensland in the Rockhampton area.

• Mr. Harris is currently a resident of Yeppoon, Queensland and he has received treatment for his condition in Queensland by Queensland medical practitioners.

• The plaintiff company is resident in New South Wales.

• The defence and notice of admissions has collectively narrowed the issues between the parties, leaving two matters to be determined:-

(b) if so, the assessment of the quantum of damages.

21 In the written outline of submissions on behalf of Mr. Harris, the following matters are recorded:-

• The plaintiff’s limited prognosis as to survival is in accordance with Dr. Scott’s report of 19 May 2005.

• The condition of mesothelioma can deteriorate suddenly and life expectancy can be significantly shortened typically due to infections/pneumonia, anorexia or tumour invasion or major blood vessels and that this is certainly applicable to Mr. Harris’ case.

22 On 14 June 2005, the Tribunal ordered the plaintiff to file affidavits and witness statements on or before 29 June 2005.

23 The defendant to the proceedings was directed to serve medical reports relied upon on or before 30 June 2005.

24 The parties have referred to a number of authorities for the purposes of identifying relevant principles governing applications to cross-vest/transfer proceedings. I will refer to these shortly.

25 The concept of “the interests of justice” in s.5(2)(iii) involves a broadly based and flexible concept. See discussion by Street, CJ. in Bankinvest AG v. Seabrook (1988) 14 NSWLR 711 at 730.

26 The Court in determining under the Cross-Vesting Act the appropriate court in accordance with the interests of justice, seeks to identify and evaluate the factors which define for the purpose of the particular case, the relevant interests of justice. In some cases, there will be a preponderance of factors in favour or against one forum as against another. In other cases, the relevant factors will be in conflict.

27 The preponderance of connecting factors in any particular case with one forum identifies that forum as the natural forum but there may be a significant connecting factor to another forum which may swing the balance to the competing forum: Ewins v. BHP Billiton Limited [2005] VSC 4 at [31] per Gillard, J.

28 The criterion for transfer established by s.5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 is whether in this case it is in the interests of justice that the proceedings be determined by the Supreme Court of the State of Queensland. The Court hearing an application for transfer is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.

29 The following propositions have been extracted from the High Court’s decision in BHP Billiton Limited v. Schultz (2004) 79 ALJR 348.

• 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: BHP Billiton Limited v. Schultz (supra) per Gleeson, CJ., McHugh and Heydon, JJ. at [14].

• The interests of justice are not the same as the interests of one party, and there may be interests wider then those of either party to be considered: BHP Billiton Limited v. Schultz (supra at [15]).

• Even so, the interests of the respective parties which might, in some respects, be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration: BHP Billiton Limited v. Schultz (supra at [15]).

justice

30 The process of determining the “interests of justice” entails a judicial evaluation there being no precise or fixed principles which guide or determine the weight to be attached to particular factors of a potentially varied nature. However, a determination under s.5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 does not involve the exercise of a common law discretion: BHP Billiton Limited v. Schultz (supra, per Kirby, J. at [172]).

31 An application under s.5 requires the assessment, by a fair balancing of all those factors relevant to ascertaining the interests of justice in the case.

32 The starting point for the consideration of a cross-vesting application under s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 is that there is no presumption as to where the balance of interests of justice might come down: BHP Billiton Limited v. Schultz (supra, Gleeson, CJ., HcHugh and Heydon, JJ. at [25]).

33 The provisions of s.5(2)(b) requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff: BHP Billiton v. Schultz (supra, per Gummow, J. at [77]).

34 The factors required to be considered by the Court include matters of the substantive law and the identification and assessment of what have been referred to as the “connecting factors”.

35 Relevant “connecting factors” may include:-

(a) The law governing the relevant transaction or the occurrence of the “wrong” sued on.

(b) The place where the parties respectively reside or carry on business.

(c) The procedural and evidentiary advantages of one court as against the other.

(d) The specialisation and expertise of the Dust Diseases Tribunal.

(e) Typical case management issues, including convenience and cost factors such as:-

(i) the availability of and location of witnesses.

36 In James Hardie & Co. Pty. Limited v. Barry (2000) 50 NSWLR 357, Mason, P. observed that the general provisions contained in s.5(2)(b)(iii), do not use the language in categories (i) and (ii), in particular, the expression “more appropriate” but that matters falling solely in category (iii) are, like the other two categories, to be approached on the basis of determining which forum is “more appropriate” in the sense discussed in Spiliada Maritime Corporation v. Cansulex Limited (1987) AC 460, where, Lord Goff stated:-

“The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie., in which the case may be tried more suitably for the interests of all the parties and the ends of justice.”

37 Mason, P. in Barry (supra) also cited dicta of Wilcox, J. in Bourke v. State Bank of New South Wales (1988) 22 FCR 378 at 394 on the broad approach to the “interests of justice” where he said:-

“… in my opinion, this phrase ought to be read widely. Under the rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in ‘the interests of justice’ to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation.”

38 In Barry (supra), Spigelman, CJ. at 361 [7] also 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.”

39 In Barry, Spigelman, CJ. at 362 again emphasised the importance of the place of the tort in determining the interests of justice:-

“It is not necessary to determine on a final basis what is the place of the tort. For the relevant purpose of exercising the power under s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987, this Court should proceed on the basis that Queensland was the place of the tort. If the issue were to arise in the course of the litigation, the evidence could be quite different to that presented in this Court for purposes of the applications before the Court. When combined with the residence of Mr. Barry, the location of the tort strongly suggests that the appropriate court is the Supreme Court of Queensland.”

40 The Chief Justice then turned to the countervailing circumstances identified by Mason, P. (p.363 [18]) including in particular the diminution in the delay of and the costs of the proceedings having regard to the fact that causation would not be an issue litigated, by reason of the concession made by the defendant that s.25B had application.

41 The significance of the place of the tort, it has observed, is considerably reduced when it is recognised that the common law of Australia will (by definition) be the same in Queensland as in New South Wales: Barry (supra, per Mason, P. at [101]; see also [108]). Mason, P. (at p.383) stated:-

“The High Court had declared that the common law in New South Wales is at all times the same as Queensland, so nothing turns upon where the tort or torts occurred as regards the parties’ substantive rights or the ability of either court system to determine that fairly.”

42 In the present case, the application to transfer the proceedings would need to be supported by other factors than the fact that Queensland was the place of the tort in order to establish that the Supreme Court of that State was the more appropriate forum. In this respect:-

• Factors of cost and convenience do not play a significant role as the Tribunal Is intending to convene in Brisbane for the taking of evidence from witnesses in the proceedings.

• The plaintiff’s submissions, undertakings and concessions regarding s.23 materials in large part have neutralised the evidentiary advantages of proceeding in the Tribunal under the Dust Diseases Tribunal Act.

• The plaintiff has undertaken to co-operate in achieving the earliest possible hearing in the Supreme Court of Queensland.

43 In Barry, Spigelman, CJ. concurred with the orders proposed by Mason, P. which provided for the application under s.5 to be dismissed. The judgment of Mason, P. identifies the relevant countervailing factors that underpinned the refusal of an order transferring the proceedings.

44 A factor to be brought into account is the fact that, given that liability (subject to proof of exposure) is not in issue, Mr. Harris does not require to the same extent as in a case where liability is a full contest, the evidentiary and procedures, facilities and advantages available under the Dust Diseases Tribunal Act. Accordingly, that factor which was a prominent one in Barry (supra), does not apply here.

45 Mr. Sheller of counsel who appeared on behalf of the plaintiff, stated that he was instructed that in the event that the proceedings were transferred to the Supreme Court of Queensland, the plaintiff would not object to Mr. Harris relying upon s.25(3) material that has been identified in correspondence and as intended to be used as part of his case before the Tribunal. That concession was made following a submission that, causation having become virtually “a non-issue”, the s.25(3) material, in any event, will have no role to play in the proceedings. In Bourke v. State Bank (supra), Wilcox, J. at 63 stated that undertakings given may be considered on a transfer application:-

“There may be occasions upon which a party seeking a transfer will offer to the court to whom the application is made that some undertaking as to the future conduct of the case, for example, as to expeditious actions. It may be open to the court considering the transfer application to take that undertaking into account, as going to ‘the interests of justice’ …”

46 Wilcox, J. there noted that although the content of an undertaking may relate to the conduct of the proceedings in the transferee court, if the matter is transferred, any such undertaking is given to, and accepted by, the transferor court at a time when the matter is still in the latter court. By its very nature, Wilcox, J. observed, the undertaking operates “inter partes”.

47 The effect of the undertaking offered by the plaintiff is, as I have earlier stated, to effectively neutralise, as a relevant factor, the evidentiary advantage that s.25(3) otherwise would provides.

48 Subsequent to the oral submissions of the parties, I was provided by the plaintiff’s solicitors with a copy of the decision of this Court (Bell, J.) in BI Contracting Pty. Limited v. Haylock [2005] NSWSC 592. In that case, Bell, J. ordered that proceedings in the Dust Diseases Tribunal be removed into this Court and be transferred to the Supreme Court of South Australia.

49 The outcome in BI (Contracting) Pty. Limited v. Haylock (supra) can be appreciated when regard is paid to (a) the particular “connecting factors” in that case; (b) the evidence; (c) the nature of the discrete liability issues between Mrs. Haylock and BIC and St. George Limited; (d) the substantive versus procedural question surrounding the provisions of s.25B and (e) questions of interpretation that existed concerning a number of South Australian Acts and regulations relevant to certain liability issues arising on one of the defences in the case. Specifically, these matters may be identified and summarised as follows:-

• The torts were each alleged to have occurred in South Australia.

• Mrs. Haylock was a resident of South Australia.

• BIC was incorporated in South Australia. It had only ever conducted business in South Australia.

• St. George Bank was a corporation with its registered office in New South Wales, but was acting as successor to the liability of the Bank of South Australia.

• BIC, St. George (and Amaca) put in issue each of the elements of Mrs. Haylock’s causes of action.

• St. George denied Mrs. Haylock was exposed to and inhaled asbestos fibres in the course of her employment with the Bank of South Australia.

“Helsinki criteria”

• Of the twenty s.25B causation findings upon which Mrs. Haylock proposed to rely, only one finding was not in issue.

50 Bell, J. in this latter respect observed that Gummow and Callinan, JJ. in BHP Billiton Limited v. Schultz (supra) (with whose reasons Hayne, J. agreed) considered the ambiguity with respect to the characterisation of various of the provisions of the Dust Diseases Tribunal Act as either substantive or procedural to be a factor favouring an order for transfer such that the lex fori and lex loci delicti coincided: per Gummow, J. at 366 [99] and Callinan, J. at 392 [242].

51 St. George proposed to defend Mrs. Haylock’s claim upon the basis that it did not succeed to the liabilities of the entity which employed her in 1963. That question turned on the interpretation of South Australian Acts and Regulations.

52 Finally, interlocutory steps (including the administration of interrogatories) were still outstanding and, unlike in the present application, no hearing date had been allocated. The Tribunal had indicated that it would not do so until all parties had given discovery.

53 There are two aspects of the disease of mesothelioma that are uncontroversial. The first is that from the point when a diagnosis is made, the life expectancy of a patient is regarded as severely curtailed – 12 months from the date of diagnosis being a commonly accepted life expectancy period (on that basis and the diagnosis in this case having been made on 29 March, Mr. Harris would have a residual life expectancy of about 9 months). The second is that the disease can be unpredictable and a sudden deterioration of a patient’s health is possible and may bring about death in a shorter period than the estimated 12 months. Mr. Sharpe of counsel for Mr. Harris submitted in the context of transfer applications, that it is not possible to safely divide mesothelioma suffers into sub-categories of urgent and not so urgent cases.

54 In Bi Contracting (supra), it was noted that Mrs. Haylock’s mesothelioma was of the epithelial type which Bell, J. observed at [13] carries a slightly better diagnosis. I note that unfortunately for Mr. Harris, Dr. Scott stated in his report of 3 June 2005, that one of his poor prognostic markers was his non-epithelial cell type of tumour. Dr. Scott added that specially the tumour had both epitheloid and sarcomatous histological features (p.2). Of course, one of the other distinguishing facts as to prognosis, is, as Dr. Scott has stated, that the plaintiff in these proceedings is male, a fact associated with relatively poor prognosis.

55 I accept that the inherent uncertainty with the disease, at least in a case such as the present, renders it difficult to proceed upon the basis that cases of malignant mesothelioma may, with a sufficient level of certainty and safety, be categorised as urgent and less urgent. In other words, it is difficult in many cases to say other than that a person diagnosed with the disease has a considerably shortened life expectancy based on the 12 months estimate without a great deal of further refinement or definition.

56 In the joint judgment of Gleeson, CJ., McHugh and Heydon, JJ. in Schultz (supra at [23]), their Honours stated:-

“In particular, the plaintiff in

Zunic

was an elderly man with a short life expectancy.”

57 This statement was apparently based on Sully, J.’s judgment in The Broken Hill Proprietary Co. Limited v. Zunic [2001] NSWSC 561which recorded that the available evidence did not establish an estimated life expectancy defined by qualified expert opinion in terms of some more or less closed period of days, weeks or months. Sully, J. stated, however:-

“It is, in my opinion, clear nevertheless that Mr. Zunic is a very sick and frail old man whose life expectancy is likely to be shorter rather than longer.”

58 In Barry (supra), Mason, P., there apparently being no more precise evidence on the point, recorded than that Mr. Barry was likely to die from lung cancer within six to 12 months (at [42]). Delay, of course, is a significant factor in a case where a plaintiff is expected to die within 12 months or some lesser period as is now the case with Mr. Harris. The issue of delay (expressed in terms of a significant diminution in delay which would arise from the availability of s.25B of the Dust Diseases Tribunal Act) was given particular weight in Barry by Spigelman, CJ. at [18].

59 By any measure, Mr. Harris’ life expectancy must be regarded as a very short one. When so regarded, there is a need to bring into account, subject to any stronger countervailing considerations, that Mr. Harris should, prima facie, be regarded as a litigant who is entitled to the earliest possible hearing.

60 That is not to say that a deferral for a short period, say a few weeks, to permit a hearing in the Supreme Court of Queensland is not an option. But is it the preferable, appropriate or best option? In deciding whether such a course should be followed, courts are not blind to the reality that mesothelioma suffers, given their condition and the prospects that life ahead of them, naturally would wish to have their legal affairs attended to and put to one side as quickly as possible. It is in accordance with human understanding and compassion that they would wish to spend their last days with loved ones and friends without either the prolongation or the distraction that arises in having to deal with lawyers and legal proceedings. The point cannot, in my respectful submission, be better expressed than did Sully, J. in Zunic, a point unaffected by the point with which the High Court was concerned Schultz:-

“In those circumstances, a reasonable sense of fairness and a reasonable compassion point in the same direction; that is to say, in the direction of the taking of every proper step to ensure that Mr. Zunic has his day in Court as quickly, as simply and as efficiently as practicable.”

61 On the timetable set for the proceedings in the Tribunal by O’Meally, J., there is, as certain as things can ever be in a mesothelioma case, the relatively sure prospect of a hearing, next week, on 6 July 2005. That date was objected to by the plaintiff’s solicitor, Ms. Sheehan, who was then acting properly in her client’s interests in relation to the present application. Had that date, for example, been obtained by Mr. Harris’ solicitors, by some means, so to speak, “jumping the gun” in order to obtain an unfair advantage over the plaintiff, then the setting of the hearing date would not carry the significance which I believe it has in this case. The hearing date was set by O’Meally, J. during a programmed directions hearing as an incident of the Tribunal’s efficient procedures. Delay in court processes, of course, is often inevitable and unavoidable. Delay is a matter that can, on occasions, attract community comment and sometimes criticism. In the language of Spiliada, “the ends of justice” can only be but well-served by proceedings that, subject to the requirements of due process, are heard and disposed of expeditiously. Especially is this so in the class of proceedings with which this application is concerned.

62 In discussing the broad approach to the “interests of justice” inquiry, Wilcox, J. in Bourke v. State Bank (supra at 394) stated, inter alia, that:-

“It is not ‘in the interests of justice’ to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation.”

63 I have had to consider the benefit and disadvantages of an expedited hearing available in the Tribunal from both parties’ respective positions as well as to the possible disadvantage or burden to Mr. Harris from effectively cancelling the hearing of the proceedings next week, even if only for a short period, whilst the proceedings are transferred.

64 I propose setting out the required considerations which I regard as potentially or actually relevant in the present case and to make comment on each. I will then consider how the final balance of the interests of justice should be struck, having regard to the principles to be derived from the authorities to which I have referred.

(a) The place of the tort pleaded against Amaca

I have earlier referred to the work performed and Mr. Harris’ exposure to asbestos dust and fibre from working with various products manufactured by Amaca then known as James Hardie & Co. Pty. Limited. On the basis of James Hardie & Co. Pty. Limited v. Hall, as administrator ad litem of the Estate of Putt (deceased) (1988) BC 980 2005 (NSWCA), the place of the alleged tort in the present proceedings was the State of Queensland In accordance with the observations of Callinan, J. in Schultz (at [259]) and Spigelman, CJ. in Barry (at [7]), this is a significant matter in determining which court, in the interests of justice, is the appropriate forum. That matter established, it is then necessary to assess the remaining factors in the process of determining the issue under s.5(2)(b)(iii) of the Cross-Vesting Act.

(b) The residence or place of business of the parties/connections with the forum

Mr. Harris’ residence is Queensland, whereas Amaca, an asbestos manufacturer and supplier (in New South Wales and Queensland), is resident in New South Wales (Sydney).

(c) The substantive law and its application to the case

The relevant substantive law is the common law of Australia. It has not been suggested in argument that the common law as it applies in this case to the assessment of damages, if the proceedings are heard in Mr. Harris’ lifetime, will be qualified by Queensland statutory law. In contrast, in Schultz (supra) the law of South Australia concerning the assessment of damages in actions for personal injury was noted as being partly common law and partly statute (in particular s.30B of the Supreme Court Act 1935 (SA)): Shultz (at [25]). The fact that the common law applies whether the proceedings be heard by the Tribunal or by the Supreme Court of Queensland, in accordance with principle enunciated by Mason, P. in Barry , materially reduces the significance to be attached to the fact that the place of the alleged tort is Queensland.

(d) Procedural and evidentiary advantages

This, as earlier observed, was the critical issue in Barry . By reason of the admissions made by the plaintiff and the concession made as to the ability of Mr. Harris to rely upon s.25(3) materials if the proceedings were transferred to Queensland, this factor does not have application as a countervailing consideration to the application for transfer as it did in Barry . Additionally, there has been no suggestion by the parties in this case that s.25B has any role or work to do in this matter. This is understandable given the admissions made.

(e) The balance of convenience to parties and witnesses

There is the prospect of Queensland medical and other witnesses relevant to damages being called. However, the fact that the Tribunal is travelling to Queensland to take evidence means has meant that there is no significant expense or cost advantage consideration in determining the appropriate forum.

(f) Mr. Harris’ medical condition

65 However, in weighing up all of the factors to which I have referred, I do not consider that there is such a preponderance of factors favouring transfer as, for example, existed and were identified by Bell, J. in Ms. Haylock’s case (see above). The factors identified by members of the High Court in Schultz (including the fact that the South Australian common law on damages was qualified by statute, the significance in that case of the inconsistency between the substantive law of the lex loci delicti and the lex fori in terms of the provisions in s.25B, the South Australian residence of the plaintiff and of the place of business of the defendant and the absence of urgency having regard to the fact that the disease in Schultz was asbestosis and not malignant mesothelioma and therefore no imminent threat to life are distinguishing features), do not apply to the present case.

66 When one has regard to the fact that factors identified above, namely, factors (a), (b), (c), (d) (e) and (f) either are, for reasons discussed earlier, either neutral or do not weight heavily in favour of transfer (and two or three tend to favour the Tribunal), the question then is whether the absence of (d), procedural and evidentiary advantages, arising from the provisions of the Dust Diseases Tribunal Act, (due to the plaintiff’s admissions and concession) tilt the balance in favour of transfer?

67 Subject to the exposure issue, these proceedings are essentially in the nature of a one day or perhaps a day plus assessment of damages case. The claim is essentially for treatment expenses, past and future loss of wages and general damages to be assessed on substantive law principles that are common to the two fori in question. Absent issues such as those present in the BIC case and given the ability and preparedness of the Tribunal to proceed to a hearing next week it is hard to see how the balance of relevant factors requires this case in the circumstances to be cross-vested/transferred in the interests of justice.

68 To permit the Tribunal to proceed with the hearing of the proceedings on 6 July next in circumstances in which Mr. Harris’ health is deteriorating, is, it seems to me, both the most expeditious and preferable option. That conclusion does not, I consider, allow considerations of compassion or expediency to trump principle. Principle does, within limits, as earlier noted, indeed make provision for practical considerations to operate in response to the exigencies of a case such as this, provided that a fair balance throughout the evaluation is maintained in the inquiry and assessment of the overall interests of both parties and of the ends of justice.

69 The available hearing that has been scheduled by the Tribunal is a fact that cannot be ignored. A particular system of justice that is able in a principled way to provide, in urgent and grave cases, such a quick hearing is a factor, amongst others, to be properly considered. The opportunity to relieve a dying litigant of the distraction and concern associated with the pursuit of legal rights (often for the benefit of surviving defendant(s)) at the earliest possible time cannot, at least in terms of both practicality and efficiency on the facts of the present case, count in the assessment for nothing. It is in this case a factor together with others that tilts the balance in favour of refusing to transfer the proceedings.

70 I accordingly dismiss the application. The applicant is to pay the defendant’s costs of the application.

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Citations

Amaca Pty Ltd v Harris [2005] NSWSC 622

Most Recent Citation

BHP Billiton Limited v Susan Louise Stephens [2011] NSWSC 675

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CITATION:	AMACA PTY. LIMITED v. HARRIS [2005] NSWSC 622
HEARING DATE(S):	Monday 20 June 2005
JUDGMENT DATE :	28 June 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Application dismissed. The applicant is to pay the defendant's costs of the motion.

LEGISLATION CITED:	Jurisdiction of Courts (Cross-Vesting) Act 1987 Dust Diseases Tribunal Act 1989
CASES CITED:	Bankinvest AG v. Seabrook (1988) 14 NSWLR 711 Ewins v. BHP Billiton Limited [2005] VSC 4 BHP Billiton Limited v. Schultz (2004) 79 ALJR 348 James Hardie & Co. Pty. Limited v. Barry (2000) 50 NSWLR 357 Spiliada Maritime Corporation v. Cansulex Limited (1987) AC 460 Bourke v. State Bank of NSW (1988) 22 FCR 378 B I Contracting Pty. Limited v. Haylock [2005] NSWSC 592 BHP v. Zunic [2001] NSWSC 561 James Hardie & Co. Pty. Limited v. Hall, as Administrator ad litem of the Estate of Putt (deceased) (1988) BC 9802005 NSWCA
PARTIES:	AMACA PTY. LIMITED v. HARRIS, Bruce John
FILE NUMBER(S):	SC No. 11927 of 2005
COUNSEL:	Plaintiff: J. Sheller Defendant: J.L. Sharpe
SOLICITORS:	Plaintiff: McInnes Wilson Defendant: Turner Freeman