Amaca Pty Ltd v Neil Aartsen
[2011] NSWSC 676
•06 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Amaca Pty Ltd v Neil Aartsen [2011] NSWSC 676 Hearing dates: 13 April 2011 Decision date: 06 July 2011 Jurisdiction: Common Law Before: Harrison AsJ Decision: 1. Pursuant to s 5(2) of the Jurisdiction of Court (Cross-Vesting) Act 1987, the plaintiff's application to transfer proceedings No 170 of 2010 in the Dust Diseases Tribunal of NSW to the Supreme Court of South Australia is dismissed.
2. The plaintiff is to pay the defendant's costs as agreed or assessed.
Catchwords: PROCEDURE - civil - jurisdiction - transfer of proceedings - application to transfer proceedings pending in the Dust Diseases Tribunal of New South Wales to the Supreme Court of South Australia - application dismissed Legislation Cited: Dust Diseases Act 2005 (SA)
Dust Diseases Act Tribunal Act 1989 (NSW)
Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007
Dust Diseases Tribunal Regulation 2007
Limitation Act 1969 (NSW)
Limitation of Actions Act 1936 (SA)Cases Cited: Amaca Pty Limited v Delice Matthews NSWSC, 11 February 2011 Garling J
Amaca Pty Ltd v Harris [2005] NSWSC 622;
B I (Contracting) Pty Limited v Haylock [2005] NSWSC 592;
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP v Schultz (2004) 79 ALJR 348;
Cameron v James Hardie & Coy Pty Limited (O'Meally J, 11 September 1995, unreported).
Hayward v Barratt [2000] NSWSC 708;
James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353
Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107
Spiliada Maritime Corp v Cansulex Limited [1987] 1 AC 46
Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22;
Valceski v Valceski (2007) 70 NSWLR 36Category: Procedural and other rulings Parties: Amaca Pty Ltd (ACN 000 035 512) (Under NSW Administered Winding up) -Plaintiff
Neil Aartsen - DefendantRepresentation: J Sheller - Plaintiff
J A McIntyre SC with S Tzouganatous - Defendant
DLA Phillips Fox – Plaintiff’
Slater & Gordon - Defendant
File Number(s): 2010/358320
Judgment
HER HONOUR: By summons filed 20 October 2010, the plaintiff seeks firstly, an order that proceedings No 170 of 2010 in the Dust Diseases Tribunal of NSW be removed into the Common Law Division of the Supreme Court of NSW pursuant to s 8 of the Jurisdiction of Court (Cross-Vesting) Act 1987 and/or alternatively, pursuant to Part 9 of the Civil Procedure Act 2005 and Part 44, Division 2 of the Uniform Civil Procedure Rules 2005; and secondly, an order that the proceedings be transferred to the Supreme Court of South Australia pursuant to s 5(2) of the Jurisdiction of Court (Cross-Vesting) Act 1987.
The plaintiff is Amaca Pty limited (ACN 000 035 512) (under NSW Administered Winding up) ("Amaca"). Amaca is the successor of James Hardie. The defendant is Neil Aartsen ("Mr Aartsen"). Amaca relied on two affidavits of Natalie Bountros sworn 28 October 2010 and 25 November 2010. Mr Aartsen relied on two affidavits of Joanne Louise Wade sworn 26 November 2010 and 29 March 2011 and the affidavit of Matthew Peter Windsor affirmed 26 November 2010.
Amaca submitted that Mr Aartsen's claim should be cross-vested in the "interests of justice" pursuant to s 5(2)(b)(iii) and that the natural forum for his action is South Australia. Mr Aartsen opposes this application and submitted that the natural forum is New South Wales.
On 24 June 2010, Mr Aartsen filed a statement of claim in the Dust Diseases Tribunal of New South Wales ("DDT") seeking provisional damages pursuant section 11A of the Dust Diseases Tribunal Act 1989 ("the DDT Act ") for alleged injuries sustained during the course of his employment as a carpenter, joiner and builder conducting works involving cement building products containing asbestos.
By amended statement of claim filed 11 October 2010, Mr Aartsen claims that in the period 1963 to 1968 in New South Wales and between 1969 and 1985 in South Australia, he was exposed to and inhaled asbestos dust and fibre from contact with asbestos cement building products manufactured by the defendant. Hence, Mr Aarsten alleges two periods of exposure to asbestos, one period of about five years in New South Wales and a longer period of about 16 years in South Australia.
These proceedings
It is common ground that Amaca committed two separate series of torts that occurred partly in South Australia and partly in New South Wales. These two separate series of torts allegedly resulted in injuries being sustained by the defendant in New South Wales and South Australia. Mr Aartsen resides in South Australia. Amaca had its place of incorporation and its principal place of business at all relevant times in New South Wales.
The relevant legislation
Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Cross-vesting Act" ) reads:
"5 Transfer of proceedings
...
(2) Where:
...
(b) it appears to the ... court that:
...
(iii) it is otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of another State or of a Territory;
the ... court shall transfer the relevant proceeding to that other Supreme Court."
Section 8(1)(b) of the Cross-vesting Act reads:
"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."
The parties referred to Spiliada Maritime Corp v Cansulex Limited [1987] 1 AC 460 at 478 per Lord Goff; Bankinvest AG v Seabrook (1988) 14 NSWLR 711; James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353 at [100]; Hayward v Barratt [2000] NSWSC 708; BHP v Schultz (2004) 79 ALJR 348 [163] - [165]; James Hardie v Barry [2000] NSWCA 353; Amaca Pty Ltd v Harris [2005] NSWSC 622; B I (Contracting) Pty Limited v Haylock [2005] NSWSC 592 at [45]; Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 at [115]; Valceski v Valceski (2007) 70 NSWLR 36 and Amaca Pty Limited v Delice Matthews NSWSC, 11 February 2011 Garling J.
The starting point, I think is Spiliada Maritime Corp v Cansulex Limited. In Spiliada , Lord Goff endorsed a formula earlier used by Lord Keith of Kinkel in the resolution of the problems arising in the Abidin Daver. 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 forum with which the action had the most real and substantial connection'. In judging the action by reference to such a criterion, Lord Goff said that courts would first look to the 'connecting factors' that point in the direction of the local or some other forum (at 478):
"These will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business."
Mason P cited the decision of Lord Bingham in Lubbe v Cape Plc [2000] All ER 268, which referred to this passage with approval (emphasis added):
"[91] t may well be that the difference between the " Spiliada " approach and the " Oceanic Sun Line " approach is not as great as perceived at the time when Bankinvest was decided. I am not suggesting that there is no difference. However, cases such as Connolly v RTZ Corp Plc [1998] AC 854 and Lubbe v Cape Plc [2000] 1 WLR 1545 show that a stay based on forum non conveniens involves much more than deciding which is the more "natural" or appropriate forum. Thus, in Lubbe , Lord Bingham of Cornhill said (at 1554) that:
... it is the interest of all the parties, not those of the plaintiff only or the defendant only, and the ends of justice as judged by the court on all the facts of the case before it, which must control the decision of the court. In Spiliada it was stated (at p476):
"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."
In applying this principle the court's first task is to consider whether the defendant who seeks a stay is able to discharge the burden resting upon him not just to show that England is not the natural or appropriate forum for the trial but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is had to the fact that jurisdiction has been founded in England as of right ( Spiliada , p477). At this first stage of the inquiry the court will consider what factors there are which point in the direction of another forum ( Spiliada , p477; Connelly v RTZ Corp Plc [1998] AC 854 at 871). If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, that is likely to be the end of the matter. But if the court concludes at that stage that there is some other available forum which prima facie is more appropriate for the trial of the action it will ordinarily grant a stay unless the plaintiff can show that there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this second stage the court will concentrate its attention not only on factors connecting the proceedings with the foreign or the English forum ( Spiliada , p478; Connelly, p872) but on whether the plaintiff will obtain justice in the foreign jurisdiction. The plaintiff will not ordinarily discharge the burden lying upon him by showing that he will enjoy procedural advantages, or a higher scale of damages or more generous rules of limitation if he sues in England; generally speaking, the plaintiff must take a foreign forum as he finds it, even if it is in some respects less advantageous to him than the English forum ( Spiliada , p482; Connelly, p872). It is only if the plaintiff can establish that substantial justice will not be done in the appropriate forum that a stay will be refused ( Spiliada , p482; Connelly, p873).
See also Lord Hope of Craighead at 1566-1567.
[92] Lubbe's Case considered the relevance of a plaintiff's inability to obtain legal aid in the "natural" forum. Such an issue barely intruded into the present case which rose no higher than showing that the plaintiff was able to obtain a satisfactory contingency fee arrangement in New South Wales.
[93] Lubbe also emphasises (at 1561, 1566-1567) that forum non conveniens is not concerned with overcrowding in the forum court (see also Oceanic Sun Line at 255, Grigor). Rather, the focus must be the "private interests of any of the parties" and "the ends of justice in the case which is before the court" (per Lord Hope at 1566).
[94] This approach to Spiliada fits comfortably with the more recent caselaw applying and developing Bankinvest ."
In BHP v Schultz , Kirby J said (citations omitted):
"[163] In Spiliada Lord Goff endorsed a formula earlier used by Lord Keith of Kinkel in the resolution of the problems arising in The Abidin Daver . This was to the effect that "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". In judging the action by reference to such a criterion, Lord Goff said that courts would first look to the "connecting factors" that point in the direction of the local or some other forum:
'These will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business.'
[164] Once it is clear that some "more appropriate" forum exists, "the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the [chosen] forum". So too for the defendant. An exception is allowed where it is clear that "substantial justice" cannot be done to the plaintiff in what is otherwise the "appropriate" forum. However, whilst this may be a consideration that it is appropriate to take into account in inconvenient forum applications which seek orders that the proceedings be continued in another country, they scarcely apply to courts within the Australian Commonwealth. On the contrary, the suggestion that the first respondent could not obtain "substantial justice" in the relevant court of South Australia (the Supreme Court of that State) is not only contrary to common experience. It is inconsistent with the hypothesis of the Constitution.
[165] I therefore agree with the remarks of Spigelman CJ in James Hardie & Coy Pty Ltd v Barry :
'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.'"
The first case after the cross-vesting legislation came into existence in this Court, was Bankinvest AG v Seabrook at 713 to 714 Street CJ said:
'The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice. ... It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.'
Young J (as he then was) in Hayward v Barratt said the decision in Bankinvest meant the Court should "...undertake a case management exercise to see what would be the best order to make to facilitate the trial of the litigation". The concept of 'the interests of justice' depends on the facts and circumstances of each individual case, which must be considered in the context of "a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute."
Consideration of BHP v Schultz
In BHP Billiton Ltd v Schultz an employee of BHP in South Australia developed an asbestosis-related disease. An application was made to move the proceedings in the Dust Diseases Tribunal of New South Wales to the South Australian Supreme Court. This application was unsuccessful at first instance to have the proceedings transferred pursuant to s 5 of the Cross-Vesting Act . The NSW Court held that it was not in the interests of justice to make cross-vesting orders, that the respondent's choice of forum was not lightly to be overridden and that he should retain the advantages of s 11A of the Dust Diseases Tribunal Act . The High Court did not agree with the decision of the trial judge.
All members of the High Court held that the trial judge erred in placing weight on the plaintiff's choice of forum. The High Court stated that 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; 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; 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; the justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application for transfer, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of the parties.
At [14] to [16] in Schultz, Gleeson CJ, McHugh and Heydon JJ stated
"[14] In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. 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.
[15] The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff's lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. 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. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff's early death. The capacity of the tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.
[16] On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party."
In the consideration of a cross-vesting application under s 5(2)(b)(iii) of the Cross-Vesting Act 1987 is that there is no presumption as to where the balance of interests of justice might come down: Schultz per Gleeson, CJ, McHugh and Heydon, JJ at [25].
Kirby J in Schultz at 361 agreed with the remarks of Spigelman CJ in James Hardie & Co Pty Ltd v Barry where his Honour said:
"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."
The application of Cross-Vesting principles
The task of this court under s 5 of the Cross-Vesting Act is to ensure that these proceedings are heard in the forum dictated by the interests of justice. It is both necessary and sufficient that this Court be of the view that in the interests of justice, the South Australian Court is more appropriate. The interests of justice are not the same as the interests of both parties and there may be interests wider than those of either party to be considered.
To ascertain the more appropriate forum, this court is to determine in which jurisdiction the action has the most real and substantial connection.
The interests of justice are the interests of both parties and they are not to be judged by the selection of the most advantageous, or least disadvantageous, forum for one party, but rather 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": Valceski v Valceski at [69] per Brereton J.
An application under s.5 of the cross-vesting legislation requires the assessment, by a fair balancing of all those factors relevant to ascertaining the interests of justice in the case. These factors include matters of the substantive law and the identification and assessment of what have been referred to as the "most real and substantial connecting factors". In Amaca Pty Limited v Harris [2005] NSWSC 622 Hall J [30] set out some connecting factors required to be considered by the Court. They are:
(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 Courts and Tribunal.
(e) Typical case management issues, including convenience and cost factors.
I would also add, another factor that should be considered as it is relevant to the interests of justice, namely the state of the plaintiff's health.
I shall refer to each of these factors in turn (although in a different order) and comment on each. I will then consider how the final balance of the interests of justice should be struck having regard to the principles derived from the authorities to which I have referred to in this judgment.
(a) The law governing the relevant transaction or the occurrence of the "wrong" sued on
On 3 September 2010, Mr Aartsen filed and served a statement of particulars pursuant to regulation 24 of the Dust Diseases Tribunal Regulation 2007. At paragraph 3.1 of his statement of particulars, Mr Aartsen provided details of his employment and identifies the places of work where he says that he was exposed to asbestos. From 1963 to 1968, he was employed by Zinc Corporation Limited, Broken Hill, New South Wales as a fulltime carpenter/joiner and he was exposed to asbestos. From 1969 to 1970, he was employed by Lindsay Farquar, Adelaide, South Australia, as a fulltime carpenter and he was exposed to asbestos. From 1970 to 1972, he was employed by Murray Baker, Adelaide, South Australia, as a fulltime carpenter and he was exposed to asbestos. From 1972 to 1985, Mr Aartsen was self employed as fulltime carpenter/builder in South Australia. and he was also exposed to asbestos during this time.
There are two series of separate torts sued upon. They occurred partly in South Australia and partly in New South Wales. These two separate series of torts allegedly resulted in injuries being sustained by the defendant in New South Wales and South Australia. So far as the torts that occurred in South Australia are concerned the substantive law of South Australian, is applicable. Likewise, so far as the torts in New South Wales are concerned, the substantive law of New South Wales is applicable. Whether the proceedings are heard in New South Wales or South Australia, the substantive law to be applied remains the same. The court hearing this matter will be required to apply both the New South Wales and South Australian substantive legislation.
James Hardie manufactured some asbestos cement building products in New South Wales, resulting in Mr Aartsen being exposed to asbestos dust and fibre in New South Wales for a period of about six years and Mr Aartsen was also exposed to asbestos cement building products manufactured by the James Hardie in South Australia. The critical decisions relating to fixing warning labels and providing adequate instructions to users were alleged to have been made by the James Hardie in New South Wales. In respect of one particular asbestos cement product - compressed asbestos cement sheet used in South Australia the plaintiff say that throughout the whole period, it was a product manufactured in only in New South Wales. So if evidence has to be called on these issues, it is likely to be located in New South Wales.
In 1963, when he was an apprentice then carpenter and joiner in the zinc mines at Broken Hill, he completed general maintenance and renovation work on domestic cottages and workshops. Mr Aartsen recalls using Hardiplank, Flat sheeting, Tilux (used in the upgrading of bathrooms), Hardiflex and Shadowline and he remembers removing, cutting, filing, drilling and fitting many asbestos sheets in the cladding of houses. Little of this work was done with power tools. This work created dust that was inhaled. He was also involved in disposing the material. However, Mr Aartsen informed Dr Greville that he thought most of his asbestos exposure occurred when he was working at the zinc mines in Broken Hill.
The plaintiff's periods of exposure to asbestos were about six years in New South Wales and a longer period of sixteen years in South Australia. While the period of exposure to asbestos in South Australia is for a longer duration, it is Mr Aartsen's evidence that most of his asbestos exposure occurred while he was working Broken Hill.
(b) The place where the parties respectively reside or carry on business
Mr Aartsen currently resides in South Australia and has been there since 1970. Amaca had its place of incorporation and its principal place of business at all relevant times in New South Wales.
(c) The specialisation and expertise of the Dust Diseases Courts and Tribunal
As discussed, the High Court in BHP Billiton Ltd v Schultz made it clear and I accept that in deciding which court is the more appropriate, the plaintiff's choice of the forum is not a relevant factor to be taken into account. It is the capacity of the tribunal or court to deal expeditiously with cases has always and rightly been regarded as in the interests of justice.
For many years New South Wales has had a specialist Dust Diseases Tribunal. Since 2006 (after Barry and Schultz ) South Australia has introduced a specialist court.
The Dust Diseases Act 2005 (SA) came into effect in 2006. Sections 5 and 6 of the South Australian Dust Diseases Act allow for all dust diseases actions to be heard before the District Court of South Australia has recently changed in South Australia. Cases are now to be heard by Industrial Commission Judges in South Australia. Counsel for Mr Aartsen submitted that it is too early to tell whether past delays are likely to be alleviated by this new procedure. The District Court of South Australia introduced a Dust Diseases List managed in accordance with Practice Direction 4.5 of the District Court Civil Rules. Practice Direction 4.5 allows dust diseases actions to be classified as either ordinary cases or urgent cases. The intention of the introduction of both the Act and the dust diseases list is, stated in section 4 of the Act "to ensure that residents of the State who claim rights of action for, or in relation to, dust diseases have access to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind." Practice Direction 4.5 defines ordinary cases and urgent cases and sets up a procedure to expedite urgent matters:
On 18 November 2010, the South Australian District Court has recently issued a practice note, which relevantly reads:
"From 31 January 2011 proceedings in the Dust Disease List of the District Court will be managed through the interlocutory process and heard by judges located at the Industrial relations Court, ... Senior Judge Jennings will be the judge supervising that list. This arrangement will help the court in meeting the need for dust disease actions to be dealt with expeditiously, especially in cases where an urgent hearing is required.
Since Schultz, South Australia has a specialist Dust Diseases List in the District Court. The case management of that list is managed by a Senior Judge.
New South Wales has a specialist Tribunal and South Australia has a specialist list in the District Court that is case managed by a Senior Judge.
(d) The procedural and evidentiary advantages of one court as against the other
The Court of Appeal in James Hardie v Barry considered the special procedural powers of the DDT. Mason P in James Hardie pointed out that these were not merely forensic advantages to one party that represented a corresponding disadvantage to the other party, but they were factors relevant to a decision under s 5 of the Cross-vesting Act , because the special procedural powers have the capacity to assist both plaintiffs and defendants in the efficient and economical resolution of disputes, and therefore serve the public interest. Mason P stated at [112]:
"In my view, the unique procedural powers of the Tribunal are relevant and significant in the task of determining the more appropriate forum in the ultimate quest for what is in the "interests of justice". They are not mere forensic advantages to one party that represent a comparable disadvantage to the other party (cf Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 482 ff). They are also factors to be weighed against transfer insofar as they have the clear capacity to assist both the defendants and the judicial system of Australia in the just, quick and cheap resolution of the present dispute."
I shall consider the procedural and substantive powers of both the DDT and the South Australian Court.
(i) Limitation periods
Mr Aartsen will require an order pursuant to section 48 of the Limitations of Actions Act 1936 (SA) for an extension of time to commence and maintain his action and he will need to specifically plead all the material facts which he relies in order to obtain an extension of time to bring the proceedings under South Australian law.
Section 12A of the DDT Act 1969 relevantly reads:
"12A No limitation period
(1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time.
(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions.
(3) ..."
In Schulz at 490 at [248] Callinan J, stated , "It must now be accepted following John Pfeiffer that s 12A of the Tribunal Act is a substantive provision. 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."
Here, the South Australian Limitation Act 1936 will apply to the South Australian torts and s 12A DDT Act (NSW) will apply to the New South Wales torts. This factor is neutral.
(ii) Future damages
Counsel for Mr Aartsen raised an issue concerning the applicability of s 11A of the DDT Act by a court in South Australia.
Section 11A operates where there is a chance that the person suffering from a dust-related condition will "as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition": s 11A(1). In those circumstances, the Tribunal is empowered in the following terms to award damages assessed on the assumption that the injured person will not develop another dust-related condition, and award further damages at a future date if the injured person does develop another dust-related condition."
This issue was briefly considered by Bell J in Wallaby Grip Limited v Gilchrist [2007] NSWSC 1181. In that case, the first defendant had commenced proceedings in the Dust Diseases Tribunal arising out of exposure to asbestos in both NSW and Queensland and claimed damages and orders under s 11 A. The plaintiff sought to have the proceedings transferred to the Supreme Court of Queensland. Bell J noted at [40] that "if the provisions of s 11A are substantive they will apply to [the first defendant's] claim in relation to his exposure to asbestos in New South Wales should it be transferred." Section 11A appears to be a substantive rather than a procedural provision: John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 at 544 at [100].
Bell J in Gilchrist did not specifically address the fact that s 11A(2) provides that it is "the Tribunal" that may award damages in the manner provided, however the clear implication arising from her Honour's judgment is that, notwithstanding the use of that term, s 11A will apply in proceedings in a court of another State applying the substantive law of New South Wales.
It is only if Mr Aartsen was unfortunate enough to develop another related condition that s 11A(1) would come into play.
(iii) Evidence used in other proceedings
Section 25(3) of the DDT Act allows for certain evidence produced in other cases can be relied upon by the parties.
Section 25(3) of the DDT Act provides:
"(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceeding before the Tribunal whether or not the proceedings are between the same parties."
In BHP Billiton Ltd v Schultz Callinan J, speaking of various provisions of the Act, said at [253]:
Sections 23, 25, 25A and 25B do more than relax the rules of evidence. They alter, or at least would allow the Tribunal to depart from the audi alteram partem rule. Their effect is to enable the Tribunal to use against the party evidence and findings which it had no opportunity of testing or controverting. However they may be expressed, provisions capable of producing that outcome, of denying natural justice, do not have the appearance of being merely procedural.
If the proceedings were to be transferred to South Australia, section 8(4) of the Dust Diseases Act (SA) would be available to the parties and that subsection states:
"(4) If -
(a) a finding of fact has been made in a dust disease action by a court of this State, the Commonwealth or another State or Territory; and
(b) the finding is, in the Court's opinion, of relevance to a dust disease action before the court,
the Court may admit the finding into evidence and indicate to the parties that it proposes to make a corresponding finding in the case presently before the Court unless the party who would be adversely affected satisfies the Court that such a finding is inappropriate to the circumstances of the present case."
In Stavar Bell J was of the view that authority suggests that s 25(3) is a substantive provision. Section 25(3) being a substantive provision will only apply to the New South Wales torts so it does not matter where the proceedings are heard.
(e) Typical case management issues, including convenience and cost factors such as (i) the availability of and location of witnesses; and (ii) the expense or costs of litigating in one forum or the other (including legal fees, travelling and accommodation expenses).
Claims resolution
The DDT has a claims resolution procedure that requires early exchange of information in asbestos diseases claims and negotiation between parties and compulsory mediation. The use of Contributions Assessors and Mediators to ensure speedy resolution of claims is encouraged. The DDT timetable for claims resolution lists as a guide for non-malignant matters that the last date for completion of mediation should be +90 days after the date of service of the statement of particulars on the last of the original defendants . If the defendant's claim for damages were to be settled at mediation there would be obvious costs savings for both parties. The DDT has a compulsory streamlined claims resolution procedure to deal with his claim.
But so too does the South Australian court have resolution procedures. Rule (2) s 33 Supreme Court Rules 2006 (SA) provides that a plaintiff must 90 days before commencing an action make to the defendant an offer to settle their claim. Rule 33 (4) then stipulates that the defendant must within 60 days after receipt of the notice, respond by either accepting the plaintiff's offer, making a counter offer or stating that liability is denied on the grounds upon which it is denied.
Both courts have procedures which assist both parties, such as claims resolution. The evidence provision, s25(3) and the Limitation Act provisions will be applied regardless of where the proceedings are heard.
Costs
Amaca submitted that any additional costs incurred by transferring proceedings to South Australia would be dwarfed by the costs of South Australian witnesses travelling to New South Wales and this would extend to any witnesses located in Broken Hill.
It is likely that if this matter proceeds to hearing, that Mr Aartsen would be required for cross-examination. Mr Aartsen resides in Auburn in South Australia. Broken Hill is located 500 kms from Adelaide but 1500 kms from Sydney.
There may be some witnesses located in Sydney who can give evidence about warning labels and the instructions given to the users of these products and manufacture of certain asbestos products such as compressed cement sheet.
The plaintiff's solicitors have served two medial reports by Dr Greville and Dr Ewer in relation to Mr Aartsen's diagnosis, disabilities and level or care needed. Each of these physicians practice in South Australia and have treated or are still treating Mr Aartsen in South Australia. It is likely that if this matter were to proceed to hearing, that the plaintiff's physicians would be required for cross-examination.
Amaca has suggested there are two more costly alternatives to having the matter heard in South Australia. They are either that all the principal witnesses travel to Sydney or the Tribunal travels to Adelaide or Broken Hill or both. Amaca submitted that there does appear to be another possible alternative. But there is another alternative to save costs and that is the use of videolink for witnesses.
Videolink
The DDT has a video courtroom where evidence can be taken from witnesses in remote locations, within Australia or overseas. The equipment in the courtroom can be linked to similar video equipment at a remote site, such as another courtroom or any other video facility. It should be noted that the use of the Tribunal's videolink facilities is restricted to matters currently before the Tribunal and a party to proceedings in the Tribunal who wishes to make use of the video courtroom must make application by way of request to a Judge at a directions hearing or by approaching the Registrar in Chambers. Furthermore, the DDT Advice to Practitioners 1 of 2003 - Guidelines for the Use of Technology in Litigation states in relation to technology for the hearing, "Parties to any civil proceedings are encouraged where appropriate to consider the use of technology including an electronic Court book, at trial."
Delay
It is the opinion of Ms Wade, Mr Aartsen's New South Wales solicitor, that the Dust Diseases Tribunal of NSW provides the most expeditious and cost effective procedure for dealing with Mr Aartsen's claim against the Amaca. She explained that the Dust Diseases Tribunal has procedure for the admission of evidence and reliance by parties upon previous determinations of matters of a general nature that she suggests significantly reduce the length and costs of trials. Ms Wade further states that in her experience the administering of interrogatories and provision of verified discovery by parties are matters that are routinely consented to and/or ordered without formal application by the parties. This is not so in the District Court of South Australia where parties are required to file Motion (with affidavits in support) for leave to administer interrogatories and seek discovery of documents. According to Ms Wade the DDT procedure for interrogatories is more cost effective.
It is Mr Windsor's (a solicitor and barrister practising in South Australia) experience that despite the introduction of the South Australian Dust Diseases Act 2005 and the dust diseases list, litigation for dust diseases actions in South Australia is subject to significant delays, even in cases of attracting urgent classification. In particular, it is his experience that delays of several months regularly exist between the convening of a listings conference and trial date.
Mr Windsor expressed the opinion that one of the major causes of delay in the court is that South Australia has no equivalent provision to section 25B of the Dust Diseases Tribunal Act 1989, which prohibits, without leave, the re-litigation of issues of a general nature that were previously determined by the tribunal. He says that matters concerning liability often remain in dispute on the pleadings, leading to longer estimated trial lengths, it is submitted they in turn make it difficult for the court to allocate resources to accommodate expeditious trials. But whether the case is heard in New South Wales of South Australia, so far as the torts that occurred in South Australia are concerned, s 25B would not apply to the hearing of more torts.
It is suggested by the solicitor acting for Mr Aartsen that if the proceedings remain in New South Wales and if they do not settle during compulsory mediation, it is probable that the proceedings will be listed for hearing at an early date in the Dust Diseases Tribunal. Ms Wade believes that if the plaintiff had not instituted these proceedings to cross vested the matter to the Supreme Court of South Australia, the proceedings brought by the defendant claiming damages from the plaintiff would probably have already been concluded. Mr Matthew Windsor agreed with Ms Wade's belief that if Mr Aartsen's proceedings remained in the NSW Dust Disease Tribunal the proceedings would probably have been concluded.
Overall, I accept that it is most likely that these proceedings would be finalised earlier if they remain in the DDT.
(f) The state of Mr Aartsen's health
Amaca submitted there is no need for urgency in the conduct or hearing of this matter because there is no allegation that Mr Aartsen's asbestos-related condition is life threatening or that Mr Aartsen is in danger of imminent death.
In a report of Dr Hugh W Greville, dated 21 September 2009, detailed Mr Aarsten's long history of asbestos exposure. Mr Aartsen smoked approximately 10 cigarettes per day for approximately 40 years and stopped in 2007. He told Dr Greville that he had no respiratory symptoms prior to this time. Mr Aartsen has been diagnosed with Major Depression and Generalised Anxiety Disorder. The clinical onset of these conditions was not long after he was diagnosed with asbestosis in 2007. He currently takes Fluvoxamine and these conditions appear to be in partial remission in response to the treatment he has received. He states that he has a persistent productive cough, increasing breathlessness which is worsened with physical exertion, pain and discomfort, lethargy and fatigue, limited ability to perform daily and household tasks, loss of independence, loss of enjoyments of hobbies and interests, restriction of movement, loss of physical strength, anger and irritability.
Dr Greville stated that Mr Aartsen has had dyspnoea for approximately 3 years. He can walk somewhere between 5 to 200 meters before becoming dyspnoeic. He is unable to shower or dress without significant dyspnoea. Dr Greville states that he believes Mr Aartsen's life expectancy is about 22.41 years but his condition will deteriorate over the next 10 or 15 years and he is likely to become severely disabled due to his asbestosis. Mr Aartsen is at a small risk of contracting mesothelioma and lung cancer.
It Mr Aartsen also suffers from prostate cancer. Dr John Bolt, a consultant urologist, in a letter dated 27 January 2011 has estimated that Mr Aarsten has a 70 to 80 per cent chance of living in for the next three years and a 40 per cent chance of living for the next five years. In view of his continuing symptoms of depression and anxiety, Mr Aartsen has expressed the desire for his proceedings to be concluded as soon as possible.
In my view, Mr Aartsen's proceedings need to be dealt with some degree of expedition. They need to be finalised before three years elapses, preferably much earlier in view of the prognosis of the progress of his prostate cancer.
Conclusion
Each case depends upon its own particular facts and circumstances and cross vesting applications are not directed towards identifying advantages to individual parties but the interests of justice as a whole.
There are real and substantial connecting factors with both New South Wales and South Australia. There are two separate series of torts that occurred in New South Wales and South Australia allegedly resulted in injuries being sustained by the defendant in New South Wales and South Australia. So far as the torts that occurred in South Australia are concerned the substantive law of South Australia, is applicable. Likewise, so far as the torts in New South Wales are concerned, the substantive law of New South Wales is applicable. Whether the proceedings are heard in New South Wales or South Australia, the substantive law to be applied remains the same. The court hearing this matter will be required to apply both the New South Wales and South Australian substantive legislation.
The plaintiff's periods of exposure to asbestos are about six years in New South Wales and a longer period sixteen years in South Australia. While the period of exposure to asbestos in South Australia is for a longer duration, it is Mr Aartsen's evidence that most of his asbestos exposure occurred while he was working Broken Hill.
The residence of Mr Aartsen is South Australia. Amaca has its place of incorporation and principal place of business in New South Wales. As there are two places where the torts occurred and the place of residence of the parties do not coincide. These factors of themselves are not determinative of the issue of "appropriate court".
There are procedural and substantive provisions that are favourable to all parties. There are none that are seriously prejudicial to one particular party.
There may be witnesses called to give evidence from New South Wales from locations in Sydney and Broken Hill. There are doctors and witnesses from South Australia. Mr Aartsen will have to travel to New South Wales if the matter does not settle at mediation.
There are early resolution processes in both the DDT and the South Australian court. The use of technology in the DDT means that there will be minimal increase in costs if the proceedings remain in the DDT as South Australian witnesses do not need to travel to New South Wales.
If the matter does not settle and they proceed to trial, it will be finalised earlier in the DDT than in South Australia.
While Mr Aartsen's condition has not deteriorated into mesothelioma, he is suffering from terminal prostrate cancer. Dr Bolt has estimated that Mr Aartsen has a 70 to 80 per cent chance of living for the next three years and a 40 per cent chance of living for the next 5 years.
I am not persuaded that, in the interests of justice, the South Australian court is more appropriate. Following the reasoning of Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz at paragraphs [14] to [16], on balance the parties' conflicting interests are of such a kind that I am not persuaded that in the interests of justice I should favour one Court over another. Accordingly, I dismiss the summons.
Costs are discretionary. Usually costs follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.
The Court orders:
1. Pursuant to s 5(2) of the Jurisdiction of Court (Cross-Vesting) Act 1987, the plaintiff's application to transfer proceedings No 170 of 2010 in the Dust Diseases Tribunal of NSW to the Supreme Court of South Australia is dismissed.
2. The plaintiff is to pay the defendant's costs as agreed or assessed.
Decision last updated: 08 July 2011
0
10
6