BHP Billiton Ltd v Schultz & Ors

[2003] HCATrans 609

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S385 of 2002

B e t w e e n -

BHP BILLITON LIMITED

Applicant

and

TREVOR JOHN SCHULTZ

First Respondent

WALLABY GRIP LIMITED

Second Respondent

WALLABY GRIP (BAE) PTY LTD (in Liquidation)

Third Respondent

WALLABY GRIP (NSW) PTY LTD (in Liquidation)

Fourth Respondent

AMACA PTY LIMITED (formerly James Hardie & Co Pty Limited)

Fifth Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2003, AT 10.46 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   If it please your Honours, I appear for the applicant with my learned friend, MR T.G.R. PARKER.  (instructed by Piper Alderman Lawyers)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.L. SHARPE, for the respondent.  (instructed by Turner Freeman Lawyers)

GLEESON CJ:   There is a certificate from the Deputy Registrar that she has been informed by the solicitors for the second, third, fourth and fifth respondents that these respondents submit to the order of the Court save as to costs.  Yes, Mr Walker.

MR WALKER:   Your Honours, right at the heart of the way in which Justice Sully decided this case by contrast with the case of Zunic, the reasons for which commence the application book and which he incorporated extensively into the reasons for this case, is found at page 26 of the application book in paragraph 33.  There, in particular, notwithstanding that Mr Schultz’s case medically lacked the extremity and emergency of Mr Zunic’s case, his Honour called in aid in this cross‑vesting decision what he called:

the very unusual advantages that are conferred by section 11A of the Tribunal Act.

Now, for those provisions your Honours can go to page 47 in my learned friend’s written submissions where it is clear that the very important advantage of which his Honour was speaking is the possibility of getting final damages for one condition and then later final damages for another condition, all brought about by the same ‑ ‑ ‑

GUMMOW J:   Mr Walker, what would be the effect, if any, of the choice of law provision in section 11 of the Jurisdiction (Cross‑Vesting) Act?  Would that produce a result contrary to Pfeiffer?

MR WALKER:   I think not.  When you say contrary to Pfeiffer, your Honour is talking about ‑ ‑ ‑

GUMMOW J:   In other words, would some other law other than the lex loci delicti apply if section 11 were picked up?

MR WALKER:   I think not, your Honour.

GUMMOW J:   I would have thought not.  You want to constitutionalise Pfeiffer, amongst other ‑ ‑ ‑

MR WALKER:   In short, yes, that is I ‑ ‑ ‑

GUMMOW J:   What I am asking you is would that then run into section 11 and, if so, should we pause?

MR WALKER:   In many ways paragraph 11(1)(a), leaving aside the really quite intriguing content of the parentheses, that is the choice of law rules, but leaving that aside, paragraph (a) would be the result for which we contend.

GUMMOW J:   Yes.

MR WALKER:   Constitutionalised, yes, in order to overcome the use his Honour made of 11A of the NSW Act as opposed to 30B of the South Australian Act.

GLEESON CJ:   This is perhaps a particular example of the fact that if you constitutionalise a principle you place it beyond the reach of Parliament.

MR WALKER:   Well, there is no doubt about that, your Honour.  Now, whether our argument depends upon what I will call an “out‑and‑out constitutionalising” or simply an extensive of Merwin v Moolpa, whereby there is forbidden not only to courts overt statements of disapproval of the public policy of a neighbouring State, as in Merwin v Moolpa, where there is also forbidden the preference for 11A over a provision such as 30B, which might be implied, perhaps unfairly given that he was not told about 30B in his Honour’s reasons, but the next step we would want to take, the third point, which might not be an out‑and‑out constitutionalising but does call in aid 118, is to say that unless a State abolishes the common law choice of law rules entirely, a large question that no State has attempted to do and which when attempted ought no doubt be subject to inquiry of a 118 kind, but if it has not done that, then in applying its choice of law rule dictated by Pfeiffer as a matter of common law, common law in the light of the Constitution importantly, it may not by its own statutes affect the content of the law that its own choice of law imports by preferring for its own reasons of policy, hence the Merwin v Moolpa element, a particular aspect governing the rights of the parties.

In other words, not whether the whole of what is in Pfeiffer is constitutionalised but whether the constitutional backing which gave rise to the adjustment of the common law in Pfeiffer, at least in part, should not be construed so as to prevent a local Parliament, what I will call a forum Parliament, enacting some detraction or addition for the purposes of affecting the law which its choice of law rules would import, as in this case the law of South Australia.

Now, much will depend on matters of interpretation of a kind that the Court of Appeal essayed in Barry and, in particular, whether or not the provision in question here, 11A, purports to apply or should be read as applying to a case where South Australian law is being applied by New South Wales common law choice of law rules.  But be it assumed, as certainly the respondent would argue here, as we understand it, and certainly his Honour proceeded, that 11A does apply.  We have put of course that it is a matter of substance affecting, as it does, the common law of res judicata and merger in judgment in a most important way and in a diametrically different way from the way it proceeds in South Australia.

GUMMOW J:   Can I just ask you what significance, if any, arises from the fact that there was action in contract as well as tort?

MR WALKER:   We think none, given that 11A and 30B do not seem to distinguish – “breach of duty” is the expression in 11A and 30B, which starts at the foot of 48 and set out on 49, is:

any action the court determines that a party is entitled to recover damages from another party –

So, unlike Pfeiffer, where there may have been a difference but it was too late for it to matter, in this case – and this is only the beginning of the proceedings obviously – whether there is contract or tort or both, it will

match the requirements for respectively 11A and 30B, whereby there is the conflict, whereby there is the need for a choice, whereby there are common law rules – see Pfeiffer – but there is a contention – Justice Sully depended on it, in our submission – that 11A would apply.  Now, that must be because 11A applies to the exclusion of the equivalent South Australian provision or applies as well as the law revealed by the statutes of South Australia.

It also raises a question, not covered in Pfeiffer but, in our submission, deserving of attention, not covered in Mobil because of the quite different issues and the way they were raised in that case, as to the means by which one would read provisions such as 30B which, of course, in terms is a provision addressed to the determination of proceedings by the courts of South Australia.

GLEESON CJ:   We think we might be assisted by hearing from Mr Jackson.

MR WALKER:   May it please your Honour.

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, our learned friends have referred to paragraph 33 at page 26.  Could we say two things about that.  The first is that it achieves, in a sense, undue prominence for two reasons.  One is that all that is said is that:

it seems to me to be important . . . to keep open to Mr Schultz the very unusual advantages that are conferred by section 11A –

it does not say they should be exercised.  The second thing about it, your Honours, is that his Honour is there dealing under the heading at the bottom of the preceding page “Comparative Evidentiary Advantages” with one of a large number of features that he has adverted to on pages 22 and following.  In the end, the question – they are expressed shortly because he dealt with them in the previous case.  When one comes, your Honours, to the decision that he was making, pages 26 and 27, he is dealing with the question whether:

“upon a fair balancing of all the factors . . . ‘interests of justice’” –

you will see at the top of page 27:

require the making of orders for the removal and cross‑vesting of the proceedings in the Tribunal.

That was the question that was at the heart of the case.  Your Honours, in that regard one simply had a situation that the Dust Diseases Tribunal had the same jurisdiction relevantly as the Supreme Court of New South Wales, sections 10(1) and 10(2) of its Act.  The underlying contention for the applicant is that there are some differences in the laws. 

Your Honours, if one looks to see what the differences are, there is nothing to suggest that liability, if it were an issue, would be decided differently.  Indeed, there does not seem to be a contest about liability.  You will see that in the applicant’s submissions at page 38 paragraph 7.  So it then becomes a question of damages.  There is nothing to suggest, your Honours, that the principles applicable to the assessment of damages for personal injuries under South Australian law, under the common law, vary from those applicable in New South Wales.  There is one common law of Australia. 

In terms of convenience of hearing, the applicant’s case – and your Honours will see this from page 38 paragraph 8 – is that if the proceeding remains in the Tribunal it will be heard in South Australia.  South Australia, the polity as such, makes no complaint about that.  No doubt it is cheaper to provide a courtroom to the Tribunal than to appoint more judges to deal with these cases.  And, as his Honour said, the Dust Diseases Tribunal is used to dealing with cases of this kind, and provides an expeditious resolution of them.

So the case is one where, in our submission, the order actually made was one that was perfectly appropriate to a case of this kind.  Your Honours, we would also seek to say about it, it must in the end turn on some difference between the laws of New South Wales and South Australia on the method of assessing damages.  The only relevant alteration from the common law position in New South Wales is that which is referred to at page 48 in paragraph 9(b) of our summary of argument.

Your Honours, all one sees from section 11A is that it does not alter the measure of damages, it does not alter the kind of damages or the amount of damages.  It simply says that you can do it, in appropriate cases, in two steps.  One is to assess them now but include the value of the chance in the ordinary way.  The other is to do it now but leave the value of the chance to be valued later.

GLEESON CJ:   What is the connection of the case with New South Wales?

MR JACKSON:   Your Honour, the connection of the case in terms of the location of the plaintiff.  He is in South Australia.  The events occurred in South Australia.  It is a South Australian case in that sense.

GLEESON CJ:   Well, I have to tell you that I do not necessarily get the vapours when people talk about forum shopping, but there are some people who take a different view and this is starting to emerge as a problem, is it not?

GUMMOW J:   A problem for defendants.

MR JACKSON:   Your Honour, if one is looking to see what the difference is – BHP Billiton, which is the applicant, is not a smallish company.  It is a company that is based in Melbourne, if one could put it loosely, and has been for many many years.

GUMMOW J:   For the moment.

MR JACKSON:   For the moment.  And, your Honours, the situation in relation ‑ ‑ ‑

GLEESON CJ:   What about Wallaby Grip?

MR JACKSON:   Your Honour, Wallaby Grip is not in the fray.  It abides the order of the Court.  Your Honour, it is the most inventive name, or series of names, but it is not taking the point.  Nor, your Honours – and this is why I adverted to South Australia before, one can see that one talks about forum shopping, one is not just talking about the parties to it, one can see a perfectly sensible way of dealing with this in South Australia.  They say, “We’re perfectly happy to provide a courtroom to a New South Wales court that deals with this class of case expeditiously.”

GLEESON CJ:   So the only connection with New South Wales is that New South Wales happens to have a forum which is experienced in matters of this kind and is regarded by some of the legal representatives as having a particular expertise or a particularly efficient procedure.

MR JACKSON:   Yes, your Honour, and the situation in relation to it is that apart from the terms of section 11A, which allow the court to give damages in two bits, and section 30B of the South Australian Act allows it to be done in a different way, that is the only difference.  Your Honours, the power under 11A has not been exercised in this case.  All that one sees is a situation where it may be exercised.

Your Honours, this Court has said, in our submission, in John Pfeiffer that the remedies appropriate in terms of the matters with which we are discussing are ones which are those of the forum.  Could I refer your Honours to John Pfeiffer.  Your Honours, I am just reminded the

other companies are all New South Wales companies, Wallaby Grip, Wallaby – and so on.  They are all New South Wales companies.

If one goes to John Pfeiffer, your Honours, which should be behind tab 7 of the materials we have sent your Honours, and goes to the joint judgment at page 543 paragraph 99, one sees about six or seven lines into it:

Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum.

Then, your Honours, at the bottom of the page:

Or to adopt the formulation put forward by Mason CJ in McKain, “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural and all other provisions or rules are to be classified as substantive.

GUMMOW J:   Yes, but Mr Walker relies on paragraph 100.

MR JACKSON:   Yes, your Honour.  But could I just say it is, in a sense, a question of whether section 11A is procedural or substantive.

GUMMOW J:   Yes.

MR JACKSON:   But having said that, if one looks at what it does, it does not alter how damages are to be assessed.  All it says is that the court has power to delay part of the assessment until a later period.  Your Honours, that, in our submission, is not a rule which is substantive any more than the equivalent provision of section 30B of the South Australian Act which allows damages to be given by instalments, and the equivalent provision of section 76E of the New South Wales Supreme Court.

GLEESON CJ:   Mr Jackson, I noticed that the earlier case that Justice Sully dealt with was one of great urgency, but there is no particular personal hardship to your client from a grant of this special leave, is there?

MR JACKSON:   Could I check on the present position, your Honour?

GLEESON CJ:   Yes.

MR JACKSON:   No, your Honour.  Your Honour, those are our submissions.

GLEESON CJ:   In this matter, there will be a grant of special leave to appeal.

MR WALKER:   May it please the Court.

MR JACKSON:   Could I say something about costs?  I should have said something about costs, your Honours.  We would ask that the grant of special leave be subject to the condition to which we advert in our written submissions at page 52 paragraph 21.

GLEESON CJ:   What do you say about that, Mr Walker?

MR JACKSON:   Sorry, may I just say one thing before my learned friend responds.  Their response to that was that the costs should be costs in the cause.  Our submission is that it is appropriate in circumstances where there is no doubt said to be a test case that an order in terms of paragraph 21 should be made.

GLEESON CJ:   What do you say about that, Mr Walker?

MR WALKER:   Your Honours, if we were to succeed, we would not seek an order which would make Mr Schultz liable for our costs.  That is why at page 57 of the application book paragraph 13 we seek that our costs be costs in the cause, as it were, but for the reasons given in paragraph 14 on page 58, there is not cause otherwise to go further.  But, of course, we will submit to whatever order the Court sees fit to impose.

GLEESON CJ:   It is a condition of the grant of special leave that the applicant must pay the first respondent’s costs of the appeal in any event and will not seek to disturb the orders for costs made in the courts below.

AT 10.55 AM THE MATTER WAS CONCLUDED