McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
BHP BILLITON LIMITED APPELLANT
AND
TREVOR JOHN SCHULTZ & ORS RESPONDENTS
BHP Billiton Limited v Schultz
[2004] HCA 61
7 December 2004 S108/2003
ORDER
1. Appeal allowed.
2. Set aside Order 1 of the orders of the Supreme Court of New South Wales entered on 30 October 2002, and in its place order that:
(a) Proceeding No 308 of 2002 in the Dust Diseases Tribunal of New South Wales be removed into the Common Law Division of the Supreme Court of New South Wales; and
(b) The proceeding so removed thereupon be transferred to the Supreme Court of South Australia.
3. The appellant pay the costs of the first respondent in this Court.
On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with T G R Parker and K M Richardson for the appellant (instructed by Piper Alderman Lawyers)
D F Jackson QC with J L Sharpe and A S Bell for the first respondent (instructed by Turner Freeman Lawyers)
No appearance for the second to fifth respondents
Interveners:
D M J Bennett QC, Solicitor‑General of the Commonwealth, with M A Perry intervening on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor)
W C R Bale QC, Solicitor‑General of the State of Tasmania, with C E Prideaux intervening on behalf of the Attorney‑General of the State of Tasmania (instructed by the Solicitor‑General of Tasmania)
P A Keane QC, Solicitor‑General of the State of Queensland with G R Cooper, intervening on behalf of the Attorney‑General of the State of Queensland (instructed by Crown Law Division, Department of Justice)
R J Meadows QC, Solicitor‑General for the State of Western Australia with K H Glancy intervening on behalf of the Attorney‑General for the State of Western Australia (instructed by Crown Solicitor's Office (Western Australia))
M G Sexton SC, Solicitor‑General for the State of New South Wales, with M J Leeming intervening on behalf of the Attorney‑General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor‑General for the State of South Australia, with C Jacobi intervening on behalf of the Attorney‑General for the State of South Australia (instructed by Crown Solicitor's Office (South Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
BHP Billiton Limited v Schultz
Courts and judges – Courts – Concurrent jurisdiction of different courts – Cross-vesting legislation – Plaintiff alleges that his asbestos-related disease resulted from exposure to asbestos while working in South Australia – South Australia identified as the place of the alleged wrong – Plaintiff commenced proceedings in Dust Diseases Tribunal of New South Wales – Plaintiff a resident of South Australia – Whether Supreme Court of South Australia a "more appropriate" forum – Whether proceeding to be transferred "in the interests of justice" – Relevance of circumstance…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
BHP Billiton Ltd v Schultz [2004] HCA 61
Case
[2004] HCA 61
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by BHP Billiton Limited (BHP) against a decision of the Supreme Court of New South Wales. The dispute concerned proceedings commenced by Mr. Schultz in the Dust Diseases Tribunal of New South Wales (DDT) alleging asbestos-related injury due to exposure while working for BHP in South Australia. Mr. Schultz, a resident of South Australia, sought damages and prospective loss under New South Wales legislation. BHP sought to have the proceedings transferred from the DDT to the Supreme Court of South Australia, arguing it was the more appropriate forum.
The central legal issues before the High Court were whether the Supreme Court of New South Wales erred in its application of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth) and related State legislation, specifically concerning the transfer of proceedings between State courts. The Court was required to determine the criteria for deciding whether a proceeding should be transferred in the interests of justice, considering factors such as the plaintiff's choice of forum, the location of the alleged wrong, the availability of specialist tribunals, and the potential differences in applicable law between the states. The Court also considered the relationship between applications for transfer under the cross-vesting legislation and the common law doctrine of *forum non conveniens*.
The High Court found that the primary judge's decision was affected by material error. While acknowledging the specialist nature and procedural advantages of the Dust Diseases Tribunal, the Court noted that BHP had undertaken to provide Mr. Schultz with the benefit of those provisions if the proceedings were transferred. The Court also considered that the primary judge may have overlooked the broader interests of justice, including potential issues between Mr. Schultz and other respondents, and cross-claims, which had received insufficient attention. The Court concluded that the matter should be remitted to the Supreme Court of New South Wales for further consideration.
The High Court allowed the appeal, setting aside the orders of the Supreme Court of New South Wales. The Court ordered that the proceeding be removed into the Common Law Division of the Supreme Court of New South Wales and then transferred to the Supreme Court of South Australia. BHP was ordered to pay Mr. Schultz's costs in the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside Order 1 of the orders of the Supreme Court of New South Wales entered on 30 October 2002, and in its place order that:
(a) Proceeding No 308 of 2002 in the Dust Diseases Tribunal of New South Wales be removed into the Common Law Division of the Supreme Court of New South Wales; and
(b) The proceeding so removed thereupon be transferred to the Supreme Court of South Australia.
3. The appellant pay the costs of the first respondent in this Court.
Background
Background to the litigation
In Goliath Portland Cement Co Ltd v Bengtell[26], Gleeson CJ said of the DDT Act:"The scheme of the legislation is to create a specialist tribunal to deal with a certain type of claim for damages, to constitute that tribunal a court of record, and to give it the exclusive jurisdiction to hear and determine claims of the specified kind. Such proceedings would otherwise be heard in the Supreme Court or the District Court. In that respect, the Tribunal's jurisdiction replaces that formerly exercised by those courts."His Honour added[27]:"There is nothing in the [DDT] Act which expressly limits the Tribunal's jurisdiction to claims arising out of events that occurred, or causes of action that arose, in New South Wales. The jurisdiction of the Supreme Court is certainly not so limited, and it is not easy to understand why parliament would have intended such a limited transfer of jurisdiction, leaving the residue in this Court."[26](1994) 33 NSWLR 414 at 417.[27](1994) 33 NSWLR 414 at 417.The facts Mr Schultz was born in 1941 in Whyalla in South Australia and was living there at all relevant times. He is a long‑term heavy smoker. By his statement of claim in the Tribunal, Mr Schultz pleads that between 1957 and 1964, and again between 1968 and 1977, he was employed by BHP at its premises at Whyalla and that, as a result of his exposure there to asbestos, he suffered asbestos-related personal injury. In addition to claiming damages for that injury, he makes a claim for prospective loss and damage under s 11A of the DDT Act. Mr Schultz's action against BHP is for negligence, for breach of an implied term in his contract of employment, and for breach of statutory duty. The statutory duty is said to have been imposed upon BHP by South Australian legislation as it stood at the relevant times. Specifically, Mr Schultz relies on the provisions of the Industrial Code 1920 (SA), the Industrial Code 1967 (SA), the Industrial Safety Health and Welfare Act 1972 (SA) and on certain regulations made thereunder. No law was pleaded as the proper law of the contract[28]. However, in his consideration of the matter, Sully J directed his attention to the tort claim and to the law in force in South Australia as the lex loci delicti and that course was not criticised in this Court.[28]See Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 517‑518 [68]. This is not a case in which any difficulty arises in locating the place of the tort, a prospect mentioned in John Pfeiffer Pty Ltd v Rogerson[29]. South Australia is the only candidate. Nor, as the above facts show, was it entirely fortuitous that the tort occurred in that State. In its submissions to the primary judge, BHP indicated that, subject to proof by Mr Schultz of his exposure and his diagnosis, liability will not be an issue and the trial will be limited to the assessment of damages.[29](2000) 203 CLR 503 at 538‑539 [81]. It should be observed that, in Goliath, the New South Wales Court of Appeal was dealing with an appeal against the dismissal by the Tribunal of an application, one of the grounds of which had been that it should decline to exercise its jurisdiction because, within the sense of the term given by Voth v Manildra Flour Mills Pty Ltd[30], the Tribunal was "a clearly inappropriate forum"[31]. That is not the nature of the proceeding before the primary judge or of the present appeal, which turns principally on the construction and application of provisions of the Cross-vesting Act. The distinction between an application for a stay on the ground of forum non conveniens and a transfer application under the legislation is developed and explained in the reasons of Gleeson CJ, McHugh and Heydon JJ. It also will be necessary to make further reference to the distinction later in these reasons.[30](1990) 171 CLR 538.[31]See (1994) 33 NSWLR 414 at 416, 418‑420, 431‑439.The Cross-vesting Act
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH AND HEYDON JJ
GUMMOW J
There are two further matters that should be mentioned. For the reasons given by the Court of Appeal in James Hardie & Coy Pty Ltd v Barry, Sully J was right to attach importance to the procedural and evidentiary advantages offered to all parties in the Tribunal. In assessing the weight to be given to those advantages, however, his Honour may have overlooked the fact that all defendants undertook to give Mr Schultz the benefit of those provisions if the proceedings were transferred. Those undertakings are recorded in the evidence, but they were not mentioned in his Honour's reasons. Additionally, his Honour was entitled to have regard to the Tribunal's specialisation and expertise. If there were any doubt about the relevance of that to the appropriateness of the Tribunal as a forum, then it is only necessary to pay attention to the facts of Spiliada, the actual decision in that case, and the consideration that was regarded there as determinative. Conclusion and Orders The decision of the primary judge was affected by material error. That being so, it is unnecessary, and therefore inappropriate, to decide the constitutional issues argued in this Court. One of those issues related to the capacity of the Tribunal to sit in South Australia. We agree with what Gummow J has said on that subject. The first respondent, by Notice of Contention, invited this Court to hold that, even if the decision of Sully J were affected by error, it should nevertheless be upheld because the Tribunal is, on any possible view, a more appropriate forum than the Supreme Court of South Australia. That ambitious submission should be rejected. Alternatively, the first respondent submitted that the matter should be remitted to the Supreme Court of New South Wales for further consideration. Unless the case was completely clear, or there were other compelling reasons to take a different course, that would be the usual outcome. On this alternative, the first respondent did not invite this Court, out of consideration for his age and illness, to decide the s 5 issue itself. In fact, in support of a submission that the matter should be remitted, the first respondent attempted to adduce further evidence to show that he is now a resident of New South Wales. That evidence was challenged, both as to form and substance, and its tender was rejected. It is far from clear that the interests of justice require that the proceedings be transferred to South Australia. In that respect, regard may be had to the specialist nature of the Tribunal, and the procedural facilities peculiar to it. Regard should also be had, not merely to the issues that may arise between the first respondent and the appellant, but also to the issues between the first respondent and the other respondents, and the cross-claims. Those questions received little attention in argument in this Court. The matter should be remitted. We would allow the appeal on the terms as to costs pursuant to which special leave was granted and set aside the orders of the Supreme Court of New South Wales of 30 October 2002. The matter should be remitted to that Court for further consideration in accordance with the reasons of this Court.