BHP Billiton Limited v Susan Louise Stephens
[2011] NSWSC 675
•06 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: BHP Billiton Limited v Susan Louise Stephens [2011] NSWSC 675 Hearing dates: 14 April 2011 Decision date: 06 July 2011 Jurisdiction: Common Law Before: Harrison AsJ Decision: 1. Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987, the plaintiff's application to transfer proceedings No 187 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: Susan Louise Stephens - Plaintiff
BHP Billiton Limited - First Defendant
RESI Corporation - Second Defendant
Delta Electricity - Third Defendant
Macquarie Generation - Fourth Defendant
Power Technologies Pty Ltd - Fifth DefendantRepresentation: TGR Parker SC (Plaintiff)
J McIntyre SC with S Tzouganatos (First Defendant)
B Mason - Second Defendant
Saab - Third & Fourth Defendants
Piper Alderman Lawyers - Plaintiff
Salter & Gordon - First Defendant
Thompson Cooper Lawyers - Second Defendant
Goldrick Farrell Mullan - Third & Fourth Defendants
Ellison Tillyard Callanan - Fifth Defendant
File Number(s): 2010/425593
Judgment
HER HONOUR: By summons filed 23 December 2010, the plaintiff seeks firstly, an order pursuant to s 8 of the Jurisdiction of Court (Cross-Vesting) Act 1987 that proceedings numbered 187 of 2010 pending in the Dust Diseases Tribunal of New South Wales between BHP Billiton Limited (BHP) as the first defendant, Susan Louise Stephens (Mrs Stephens) as the plaintiff, RESI Corporation (RESI) as the second defendant, Delta Electricity (Delta Electricity) as the third defendant, Macquarie Generation (Macquarie Generation ) as the fourth defendant, and Power Technologies Pty Ltd (Power Technologies) as fifth defendant ("the DDT proceedings") be removed into the Common Law division of this Court; secondly, an order that the DDT proceedings be transferred to the Supreme Court of South Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Court (Cross-Vesting) Act ; and thirdly, direction pursuant to Part 26 of the Supreme Court Rules 1970 for conduct of these proceedings. Expedition has been granted.
Mrs Stephens is Administrator ad litem representing the estate of the late Eric Staples. BHP relied on two affidavits of David Christopher Anderson sworn 2 February 2011 and 12 April 2011. Mrs Stephens relied on the affidavit of Matthew Windsor affirmed 1 March 2011 and the affidavit of Joanne Louise Wade sworn 1 March 2011.
RESI supported BHP's application that the proceedings be cross-vested to South Australia. Delta Electricity, Macquarie Generation and Power Technologies neither consented to nor opposed the application . Mrs Stevens opposed the application.
The proceedings in the DDT
In the DDT proceedings (commenced by the filing of the Statement of Claim on 6 July 2010), the late Eric Staples ("the deceased") claimed damages in respect of asbestosis and certain related conditions. He alleged that he was exposed to asbestos as a result of the negligence and breach of statutory duty of each of the defendants. The following represents a brief summary of his case.
On 23 July 2010, the deceased died as a consequence of his asbestosis.
On 10 December 2010, Mrs Stephens was substituted as plaintiff in the DDT proceedings in her capacity as administrator ad litem of the estate of the deceased.
On 13 December 2010, Mrs Stephens, as the substituted plaintiff in the DDT proceedings, filed an amended statement of claim against all five defendants, seeking damages on behalf or the estate of the deceased, repeating the allegations summarised above set out in the original statement of claim of the deceased.
The relevant legislation
Section 5(2)(b)(iii) of the ("the Cross-vesting Act" ) 1987 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] It 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 1989 (" the DDT Act "). The High Court did not agree with the decision of the trial judge.
All members of the High Court in Schultz 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 Jurisdiction of Courts (Cross-Vesting) Act 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 he 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 Jurisdiction of Courts (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 Ltd v Harris, Hall J [30] set out some connecting factors the Court should consider. 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 Tribunal.
(e) Typical case management issues, including convenience and cost factors.
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.
BHP submitted the following connecting factors are relevant: firstly, the issues raised by the parties overwhelmingly involve the calling of lay and expert witnesses who reside in South Australia; secondly, no evidence has been led by Mrs Stephens to show that any additional cost would be incurred in having the matter transferred to South Australia; thirdly, the effect of section 32 of the DDT Act upon BHP and RESI is highly prejudicial; fourthly, had the deceased's proceedings in this matter been commenced in South Australia, with the foregoing procedures utilised, it would probably have been concluded by now; and fifthly, the legal arguments that may arise before the Tribunal involving the operation of the claims resolution process (CRP) upon BHP and RESI will be complex, costly and productive of delay, not to mention appeal processes.
It is submitted by Mrs Stephens that an examination of these "connecting factors" suggests New South Wales is the most appropriate forum. Mrs Stephens summarised the connecting factors in the following way. She will be relying upon opinions contained in expert medical reports that have been or will be served pursuant to rules of court. If the plaintiff wishes to cross-examine these experts, this can be done by way of video link. Insofar as lay evidence is concerned, in relation to the South Australian exposures, the plaintiff will be relying upon a detailed statement signed by the deceased prior to his death. As presently instructed, the plaintiff will not be calling any additional lay evidence from any witness currently resident in South Australia. In relation to exposures in New South Wales, Mrs Stephens may call one or two witnesses, depending upon whether or not Delta Electricity, Macquarie Generation and Power Technologies dispute the deceased's allegations.
(a) The law governing the relevant transaction or the occurrence of the "wrong" sued on
Mr Stephens' work history in relation to where in the course of each period of employment he was exposed to and inhaled asbestos dust and fibre from insulation materials containing asbestos is as follows:
(a) Between about 1953 and about 1959, the deceased was employed by BHP as an apprentice boilermaker and as a boilermaker at BHP's premises at Whyalla in South Australia.
(b) Between 1959 and 1960, the deceased alleged that he was employed by the predecessor of RESI at the Port Augusta and Playford power stations in South Australia.
(c) Between 1960 and 1973, the deceased alleged that he worked for several periods at the Munmorah, Vales Point and Wallerawang power stations in New South Wales. He alleges that Delta Electricity is the successor of the occupier of those power stations.
(d) Between 1967 and 1973, the deceased alleged that he had worked for several periods at the Liddell power station in New South Wales. He alleges that Macquarie Generation is the successor of the occupier of that power station.
(e) Between 1967 and 1973, the deceased alleged that he had been employed by a company then known as ICAL to perform work at the Lake Munmorah, Liddell and Wallerawang power stations in NSW. The deceased alleged that Power technologies was the successor in title to ICAL.
Senior Counsel for BHP submitted that i n the circumstances, the fact that the bulk of the deceased's exposure to asbestos may have occurred in New South Wales should carry no weight and that the issues raised by the parties overwhelmingly involve the calling of lay and expert witnesses who reside in South Australia. In my view, the length of the periods of exposure within each jurisdiction may be factors to be taken into account.
There are two series of torts, one series in South Australia and one series in New South Wales. Between 1953 and 1960, the torts are alleged to have been committed by BHP and RESI occurred in South Australia. Between 1960 and 1973, the torts alleged to have been committed by Delta Electricity, Macquarie Generation and Power Technologies occurred in New South Wales. As such, all the relevant torts alleged consisted of multiple exposures occurring on a reasonably continuous basis throughout the relevant years. Approached on a time basis alone, the torts committed in South Australia were committed over a period of about seven years and the torts committed in New South Wales were committed over a period of about 13 years. Mr Stephens was exposed to asbestos in New South Wales for a longer period of time.
(b) The place where the parties respectively reside or carry on business.
Mr Stephens resided with his wife in South Australia. Mrs Stephens continues to reside in South Australia.
BHP is incorporated in Victoria, and carries out business in all States of Australia, including South Australia and New South Wales. RESI is incorporated in South Australia.
However, Delta Electricity, Macquarie Generation and Power Technologies are incorporated in New South Wales, and, insofar as Delta Electricity and Macquarie Generation are concerned, their business operations are carried out in New South Wales.
(c) The specialisation and expertise of the Dust Diseases Courts and Tribunals
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 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 list in the District 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 Mrs Stephens 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 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.
Hence, since Schultz, South Australia has a specialist Dust Diseases List in the District Court. A Senior Judge manages the case management of that list.
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 Jurisdiction of Courts (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 both procedural and substantive powers of both the DDT and the Court in South Australia.
Limitation considerations
Mrs Stephens submitted that if the proceedings are cross-vested to South Australia, she will be deprived of the benefit of this section, insofar as it affects her claims for damages against the Delta Electricity, Macquarie Generation, Power Technologies and she may be required to obtain from a South Australian court an appropriate order under the New South Wales Limitation Act 1969 before she can recover damages on behalf of the estate against those defendants. According to Mrs Stephens' Senior Counsel that is because the making of such an order is discretionary, Mrs Stephens will suffer an irreversible prejudice if, in the event that the proceedings are cross-vested, a South Australian court does not extend the limitation period under the New South Wales legislation. BHP submitted that this submission is without merit.
Section 12A of the DDT Act 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 Callinan J, stated (at 490) , "It must now be accepted following John Pfeiffer that s 12A of the Tribunal Act [the DDT 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."
The limitation provisions of these Acts are substantive provisions. That means that the South Australian Limitation Act 1936 will apply to the South Australian torts and s 12A DDT Act will apply to the New South Wales torts. This factor is neutral.
Use of evidence from other proceedings
BHP submitted that contrary to Mrs Stephens' suggestion that the DDT's special procedures are preferable, if the proceedings were to continue in the DDT, section 25(3) of the DDT Act might be available to Mrs Stephens. Section 25(3) states:
"25 Evidence in proceedings before the Tribunal
...
(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 proceedings before the Tribunal, whether or not the proceedings are between the same parties."
BHP submitted that if the proceedings were to continue in the DDT, s 25B of the DDT Act would not be available for the claims arising out of alleged South Australian torts. Section 25B (1) states:
"Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties."
Senior Counsel for BHP submitted that Mrs Stephens has not identified any section 25B finding of the DDT upon which she wishes to rely so as to prove her claim, but neither has BHP.
In BHP Billiton 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, s 8(3)(4) of the Dust Diseases Act (SA) would be available to the parties in relation to the South Australian torts. Section 8(3) and (4) read:
"(3) The following rules apply in a dust disease action:
(a) the Court may admit evidence admitted in an earlier dust disease action against the same defendant (including in a dust disease action brought in a court of the Commonwealth or another State or Territory)
(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."
If the proceedings were to be transferred to South Australia, section 8(3)(a) of the Dust Diseases Tribunal Act (SA) would be available, which is wider than the New South Wales "equivalent", because it permits evidence in earlier dust diseases actions brought in any court of the Commonwealth, State or Territories, although it requires that the evidence be "against the same defendant ." BHP submitted that application of the South Australian provision would mean Mrs Stephens has available to her evidence from other proceedings given against BHP in the Tribunal. However, Mrs Stephens does not propose to rely upon any previous finding of any court.
It would seem that like ss 25 and 25B of the New South Wales DDT Act , s 8(3)(4) of the Dust Diseases Tribunal Act (SA) is also substantive. The only conclusion I can draw is that each jurisdiction has beneficial provisions regarding evidentiary matters. These provisions can be beneficial or detrimental to all parties. If these provisions are substantive, then they will be applied regardless of whether the proceedings are heard in New South Wales or South Australia.
Claims resolution processes (CRP)
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. A Contributions Assessment Determination on the question of appointment had been listed for 26 May 2011. I have referred to it in more detail under the next heading.
While the proceedings remain in the Dust Diseases Tribunal, a Contributions Assessment Determination (CAD) on the question of apportionment was due on 26 May 2011 (now passed). Notification from the Tribunal was as follows:
(1) It appears that the deceased's alleged condition of asbestosis must be treated as divisible: see clause 5(8) of the Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007.
(2) Accordingly, there can be no contribution claims between the Tribunal defendants within the meaning of section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (with the exception of claims as between Power Technologies and the successors to the Electricity Commission of New South Wales).
(3) Nevertheless, under the CRP, a CAD will be made, conclusively binding on the defendants in the Tribunal, for the purpose of payment of Mrs Stephens' damages and costs. This applies whether the claim of Mrs Stephens is resolved at mediation, or determined subsequently by the Tribunal: see clause 52(1) of the Dust Diseases Tribunal Regulation 2007.
But so does the South Australian Court have resolution procedures. Section 33 Rule (2) 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 procedures. The evidence and the Limitation Act provisions will be applied regardless of where the proceedings are heard.
Appeal mechanisms
BHP submitted that the effect of section 32 of the DDT Act upon it and RESI is highly prejudicial because any (non-appellable) finding of fact against BHP or RESI can then be used against them in subsequent proceedings in South Australia pursuant to section 8(4) and perhaps section 9(2) of the Dust Diseases Act (SA). The views in Schultz relating to section 32 of the DDT Act include that it is advantageous to all parties not to be subject to the fetters imposed by section 32 (at [99]); further, that to take away proper rights of appeal is "a serious and substantive matter" (at [247]).
Mr Anderson, solicitor for BHP, stated that Part 4 of the Dust Diseases Tribunal Regulation 2007 commonly referred to as the claims resolution process ("CRP") are substantive in effect and invalid insofar as it attempts to bind or apply to BHP. Mrs Stephenson suggests that, rather, clause 17 of the 2007 Regulation provides that the provisions of the regulation dealing with the CRP form part of the procedural law of the State of New South Wales the purposes of the determination of any claim. Accordingly, the claim against the plaintiff is subject to the CRP if the proceedings remain in NSW. [aff: 8/2/11 at [16]]
Mrs Stephens submitted that the assertion that no satisfactory mechanism exists whereby the BHP can challenge a determination by a contributions assessor is not supported by an examination of the 2007 Regulation, and relevant authorities. In Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107, Sackville AJA (with whom Allsop P and Beazley AJA concurred) stated at [94]:
"It will be seen that, although an apportionment determination cannot be challenged in any proceedings, it is conclusively binding on the defendants (including cross-defendants) only for the limited purposes specified in cl 44(1). This is consistent with the object of the scheme identified in Wallaby Grip, namely to prevent the final determination of the plaintiff's claim being delayed by contribution disputes and, to this end, to ensure early provisional resolution of cross-claims. It is significant, in my view, that cl 44(1) says nothing about an apportionment determination being conclusively binding or, indeed, having any effect at all, on the final resolution of a claim for contribution by any defendant or cross-defendant against another defendant or cross-defendant. So far as cl 44(1) is concerned, an apportionment determination has no effect on the principles that govern the final determination of a claim for contribution among defendants or cross-defendants."
Later, His Honour said at [102]:
"If a defendant/cross-claimant, having obtained an order against the cross-defendant enforcing the apportionment determination, shows no inclination to proceed with its cross-claim, there may be a question as to whether the Tribunal can force the defendant, against its will, to pursue its cross-claim to a hearing on the merits. But the Tribunal has ample powers under the CP Act to ensure that the cross-claim is finalised one way or another. Moreover, this can be done without undue delay and without prejudicing the position of a cross-defendant who denies the entitlement of the defendant/cross-claimant to retain the moneys paid to it: see CP Act , ss 56(1), (2), (3), 57(1), (2), 59, 61; UCPR Pt 2 r 2.1 (power to give directions), Pt 12, r 12.7 (want of prosecution)."
Mrs Stephens submitted that in these circumstances, there is no basis for the assertion that no satisfactory procedure exists whereby the BHP can challenge any contribution assessment made, were the proceedings to remain in New South Wales.
BHP submitted that even if the Tribunal finds BHP not liable upon a final determination of the proceedings, or liable for a lesser percentage of Mrs Stephens' damages and costs than imposed by the CAD, BHP must still pay those damages and costs in accordance with the CAD. The CAD is "conclusively binding" for that purpose: clause 52(1) of the Regulation. This is reinforced by clause 4(5) of the Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007 .
In the circumstances, BHP submitted that because there cannot be any cross-claims against BHP, BHP could not put the other Defendants in the Tribunal proceedings to proof of any sort . It is likely that BHP would have to file fresh proceedings against the Tribunal Defendants seeking restitution of moneys paid by compulsion of law. According to BHP the CRP processes are arguably substantive in effect; its imposition, by the New South Wales legislature, upon the determination non-New South Wales torts, could raise arguments arising under section 109 of the Commonwealth Constitution. This seems most unlikely.
To the extent that the plaintiff's damages are divisible, as BHP concedes, there is a remedy available to recover moneys paid if it is ultimately found not liable.
Exposure and foreseeability
So far as the New South Wales defendants are concerned, the deceased's exposure to asbestos is "not admitted" rather than denied. The New South Wales defendants have conceded reasonable foreseeability but they allege that sufficient precautions were taken and otherwise deny breach of duty of care. However, exposure is denied by RESI and not admitted by BHP. Both RESI and BHP have put in issue the level of the deceased's exposure. BHP also denies that the deceased's likely level of exposure created a risk of injury that ought to have been foreseen by BHP. Counsel for BHP says that the resolution of this issue of reasonable foreseeability will require some investigation as to what measures were reasonably available, in South Australia, at the time of the deceased's alleged exposure (between 1953 and 1960) to eliminate or reduce the risk of injury to him. I accept that BHP's witnesses on this issue may be located in South Australia, although no such witnesses have been specified.
Proof of the deceased's statement will be by Mrs Stephens. The plaintiff's evidence on foreseeability will be from a Sydney expert and from BHP documents.
Comparative cost
If Mrs Stephens' claim for damages were to be settled at mediation there would be obvious costs savings for both parties.
Counsel for Mrs Stephens submitted that BHP has not lead any evidence to show that any additional cost would be incurred in having the matter transferred to South Australia. Mrs Stephens has led evidence that there will be significant costs savings if the proceedings were to be determined by the DDT such as videolink.
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, Mrs Stephens' New South Wales solicitor, that the Dust Diseases Tribunal of NSW provides the most expeditious and cost effective procedure for dealing with Mrs Stephens' claim against BHP. 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 a 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.
It is suggested by the solicitor acting for Mrs Stephens 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-vest 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 Mrs Stephens' proceedings remained in the DDT the proceedings would probably have been concluded. These proceedings had been listed for a Contributions Assessment Determination in May 2011.
Overall, I accept that it is most likely that these proceedings would be finalised earlier if they remain in the DDT.
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 to 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 that 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.
Mrs Stephens claims that Mr Stephens was exposed to asbestos both in New South Wales and South Australia. The torts committed in South Australia were committed over a period of about seven years and the torts committed in New South Wales were committed over a period of about 13 years. Mr Stephens was exposed to asbestos in New South Wales for a longer period of time.
Most of the parties carry on business in the State of New South Wales. The plaintiff resides in South Australia and RESI is incorporated in South Australia. BHP, although incorporated in Victoria, carries out business in both South Australia and New South Wales. As there are two places where the torts occurred and the places of residences of the parties do not coincide these factors in 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. Likewise there are doctors and witnesses located in South Australia who may be called to give evidence. Mrs Stephens 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 these proceedings do not settle and proceed to trial, it will be finalised earlier in the DDT than in the South Australian Court.
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 Courts (Cross-Vesting) Act 1987, the plaintiff's application to transfer proceedings No 187 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
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