BHP Billiton Ltd v Utting

[2005] NSWSC 260

CITATION:	BHP Billiton Ltd v Utting & Anor [2005] NSWSC 260
HEARING DATE(S):	24 March 2005
JUDGMENT DATE :	1 April 2005
JUDGMENT OF:	Simpson J
DECISION:	summons dismissed

CATCHWORDS:	cross-vesting application - proceedings commenced in the Dust Diseases Tribunal of NSW - transfer to Supreme Court of SA - interests of justice - special procedures to facilitate hearing
LEGISLATION CITED:	Dust Disease Tribunal Act 1989, s11A, s25(3), s25A, s25B(1), s32 Jurisdiction of Courts (Cross-vesting) Act 1987, s5(2)(b)(iii), s8(1)
CASES CITED:	BHP Billiton Ltd v Schultz [2004] HCA 61; 211 ALR 523 William John Charles Ewins v BHP Billiton Ltd [2005] VSC 4; unreported, 12 January 2005 James Hardie and Co Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
PARTIES:	BHP Billiton Ltd - Plaintiff Lawrence Utting - 1st Defendant Brambles Australia Ltd - 2nd Defendant
FILE NUMBER(S):	SC 10814/05
COUNSEL:	TGR Parker - Plaintiff MJ Joseph SC - 1st Defendant DR Campbell SC - 2nd Defendant
SOLICITORS:	Piper Alderman - Plaintiff Slater & Gordon - 1st Defendant AO Ellison & Co - 2nd Defendant

LOWER COURT JURISDICTION:	Dust Diseases Tribunal NSW
LOWER COURT FILE NUMBER(S):	No 47 of 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Friday 1 April 2005

10814/05 BHP Billiton Ltd v Lawrence Utting & Anor

JUDGMENT

1 HER HONOUR: By summons filed on 8 March 2005 the plaintiff, BHP Billiton Limited (“BHP”), claims orders pursuant to s8(1) and s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (“the Cross-vesting Act”) that proceedings commenced by the first defendant (Lawrence Utting) in the Dust Diseases Tribunal of NSW (“the DDT”) be removed into this Court, and then transferred to the Supreme Court of South Australia. BHP’s claims are supported by the second defendant, Brambles Australia Limited (“Brambles”).

2 The proceedings the subject of the summons were commenced by statement of claim filed in the DDT on 21 February 2005. Mr Utting alleges that, between September and October 1958 and 1965 and 1966 he was employed by BHP in a foundry at Whyalla in South Australia. Between 1959 and 1962, 1965 and 1968, and 1970 and 1972, he was employed by Brambles at various sites also in Whyalla. He alleges that, in the course of each period of employment, he was negligently exposed to asbestos dust, fibre and particles. As a consequence of the exposure he now suffers from mesothelioma. His life expectancy is much reduced. (Evidence was given that, as of the middle of March, his life expectancy was in the order of four to six months. That circumstance demands expedition in the determination of BHP’s summons.)

3 Removal from the DDT to this Court under s8 of the Cross-vesting Act is a mechanism to enable consideration to be given to the real point of the application, which is to transfer Mr Utting’s proceedings to the Supreme Court of South Australia. If it is inappropriate to make an order for transfer to that Court, it would be inappropriate to make an order for removal from the DDT.

4 Pursuant to s5(2)(b)(iii) of the Cross-vesting Act, whether transfer is to be ordered depends upon whether it is in the interests of justice to do so. The Cross-vesting Act gives no additional guidance on how that question is to be determined. However, the High Court has, in a very similar case, given some such guidance: BHP Billiton Ltd v Schultz [2004] HCA 61; 211 ALR 523. Extensive consideration has been given to the question in another very similar case by Gillard J in the Supreme Court of Victoria: William John Charles Ewins v BHP Billiton Ltd [2005] VSC 4; unreported, 12 January 2005. In Schultz, the High Court excluded the plaintiff’s choice of forums as a relevant factor. Four members of the Court (Gleeson CJ, McHugh and Heydon JJ in a joint judgment, and Kirby J in a separate judgment) referred to “the natural forum”, this being the forum to which the claim has its strongest or most obvious connection. This concept also underlay the judgments of the other members of the Court. In determining “the natural forum”, the place where the tort is alleged to have been committed is a significant factor, as is the location of the parties and witnesses. Also of significance to Gummow J, with whom Hayne J agreed, and to Callinan J, is the substantive law by which the claim is to be determined. By reason of the earlier decision of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503, that is the law of the place where the tort occurred.

5 Notwithstanding the primacy of the natural forum, that is not the only consideration in determining where the interests of justice lie. The natural forum may, in an appropriate case, be displaced by other factors.

6 In Ewins Gillard J listed six factors as relevant in an application under s5(2)(b)(iii). These are:

(i) the place where the tort occurred;
(ii) the place of residence of the parties, or, in the case of a corporation, its place of business;
(iii) convenience to the parties and witnesses (although the weight his Honour attributed to this factor was limited);
(iv) the law governing the proceedings;
(v) the experience of a particular court and its ability to provide an efficient and speedy trial, with particular consideration to any special procedural or evidentiary rules to facilitate the hearing of cases;
(vi) the condition of the parties, for example, reduced life expectancy of a plaintiff.

7 I think it is appropriate to here observe that the litigation commenced by Mr Utting is, as the evidence in this application demonstrates, litigation of a particular species with which courts (at least in this state) have, regrettably, become all too familiar. There must have been thousands of cases, certainly in courts in NSW and the DDT, as well as elsewhere, in which, many years after exposure to asbestos, plaintiffs have suffered serious and often terminal illnesses as a consequence. So prevalent has such litigation become in NSW that, as long ago as 1989, a specialist tribunal (the DDT) was established by the Dust Disease Tribunal Act 1989 (“the DDT Act”) in order to deal with those claims expeditiously and efficiently. Not only was the DDT established for that purpose, over the years specific provisions have been enacted to reduce the time necessary for the hearing of claims, and to utilise accumulated preparation, knowledge and experience, together with rulings of the court, in order to avoid the duplication that otherwise would have occurred. The consequence has been considerable streamlining and efficiency in the delivery of justice, as well as cost and timesaving to all participants (including the system of justice itself).

8 The DDT Act contains a number of specific provisions which are relevant in this present application. They include:

s11A: this section appears under the heading “Award of provisional damages” and, in effect, permits (unusually) a person who suffers from a dust related condition to receive consecutive awards of damages where successive dust related conditions develop as a result of the same exposure, or the same negligent acts or omissions;

s25(3): this sub-section permits the DDT to receive in evidence “historical evidence and general medical evidence concerning dust exposure and dust diseases” which has been admitted in previous proceedings, whether or not the subsequent proceedings are between the same parties;

s25A: this section permits material obtained by discovery or interrogatories in any proceedings before the DDT to be used in other proceedings in the DDT, whether or not the proceedings are between the same parties;

s25B(1): this section precludes the re-litigation or reargument of “issues of a general nature determined in proceedings before the [DDT]” without the leave of the DDT, whether or not the proceedings are between the same parties.

By s32 an appeal lies from the DDT to this Court, but limited to points of law or the admission or rejection of evidence.

9 An as yet unresolved question as to whether ss25, 25A and 25B are properly classified as substantive or procedural remains outstanding. Having regard to the decision in John Pfeiffer, this could, if the proceedings are heard in NSW, be of some moment. If these provisions are properly thought to be substantive (as is the opinion of Spigelman CJ expressed in James Hardie and Co Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357) then, even if the proceedings were to be heard in the DDT, they would not be available. They would, if properly held to be procedural, be available in proceedings heard in the DDT, but would not be available in proceedings heard in SA.

the evidence

10 Affidavit evidence was filed on behalf of all parties. (Initially, this matter was listed to be heard jointly with another matter, Transadelaide and the State of South Australia v Albert Keith Suridge and Amaca Pty Ltd, no 10800 of 2005. During the course of the hearing the parties in that matter resolved the claim. Nevertheless, in accordance with the understanding of the parties, affidavit evidence that had been filed in Transadelaide was read in the present proceedings.) Some oral evidence was also adduced.

11 The effect of the evidence was essentially as follows. The torts alleged to have been committed by BHP and Brambles were, on Mr Utting’s pleadings, committed in SA. Mr Utting lives in SA, and is being treated for his illness in SA. It is likely that the majority of witnesses, both lay and expert, and for all parties, live in SA. BHP has offices in SA (although it also has offices in NSW). Brambles is incorporated in NSW but carries on business and can be sued in SA. If the proceedings are to be heard in the DDT in NSW additional expense will be incurred by way of travel, accommodation, and the transport of documents. However, the DDT has the facility to travel to, and take evidence, interstate.

12 The Supreme Court of SA has the facility to provide an expedited trial, where circumstances so demand. Although a number of cases in which injury as a result of negligent exposure to dust is alleged have been commenced in the Supreme Court of SA, only one has run to a completed hearing. The DDT, by contrast, has over the years, conducted a very large number of cases and has evolved the procedures, to which I have already referred, to facilitate their efficient disposal. These procedures are unique to the DDT.

13 There is, however, no reason to doubt that the Supreme Court of SA can provide an expeditious and efficient hearing. Specific inquiries made of that Court establish that Mr Utting’s claim, if transferred to SA, could be brought to a conclusion well within his projected lifespan. The Court has its own procedural rules, which include alternative dispute resolution procedures. Solicitors and barristers experienced in personal injury litigation practise in SA.

14 In general, fees payable to legal practitioners in NSW are higher than those payable to legal practitioners in SA.

15 Mr Utting’s legal representatives propose to give notice, pursuant to s25B of the DDT Act, that they will rely on a series of (specified) determinations made by the DDT in previous cases. These findings generally go to issues of foreseeability. Also identified was a very large volume of documentary material upon which Mr Utting’s legal representatives propose to rely pursuant to s25(3).

* * *

16 The competing arguments, in the end, appeared to me to reduce to the following. On behalf of BHP it was put that SA is the natural forum. So much was accepted on behalf of Mr Utting. This incorporates the propositions that SA is the place where the tort was committed, the place most convenient to the majority of witnesses, and the home of the substantive law by which the outcome will be determined. In addition, there would be savings in costs because the need to transport witnesses and evidentiary material would be obviated and legal fees would be lower. Further, debates about unresolved questions such as whether s25(3) and s25A of the DDT Act are substantive or procedural laws would be avoided. The limited appeal rights from the DDT are also a consideration, although it is difficult to say with confidence that that factor favours either party: which party receives the benefit of limited appeal rights will not be known until a verdict in favour of one party is delivered. In any event, views may differ about whether the limitation on appeal rights favours a hearing in NSW or SA: finality may, in some eyes, outweigh a comprehensive right of appeal.

17 On behalf of Mr Utting heavy emphasis was placed upon the special procedures of the DDT, and the specialised nature, and therefore experience, of the DDT. These were held to be relevant considerations, and, indeed, determinative, in the judgment of Mason P in Barry. As a consequence, in that case an application to transfer similar proceedings to the Supreme Court of Queensland failed. Various of the judgments in Schultz also acknowledged the importance of these procedures, generally appearing to regard them as favouring the DDT as the tribunal to determine the claim.

18 As the hearing proceeded, it became apparent that a good deal of the focus lay upon these special procedures. One thing that is to be observed about these procedures is that they are applicable only to claims where liability is contested. Where liability is admitted (as it frequently is) s25(3), s25A and s25B have no application. Accordingly, counsel for BHP sought to have an inference drawn that it was unlikely that liability would be in issue. He adduced evidence to the effect that, in the majority of previous cases in which it has been sued, BHP has admitted liability. This was an attempt to nullify the benefits perceived by Mason P in Barry resulting from the existence of these special procedures. I found the submission an unsatisfactory one. I see no reason to draw an inference that BHP will not contest liability, in circumstances where it is open to BHP, at any time, to make such an admission. Mr Utting’s proceedings have been on foot since 21 February 2005. I was not given any reason why BHP could not, by the time of the hearing of the summons, have made the necessary investigations of the allegations made in the statement of claim such as to enable it squarely to disclose its hand in relation to the liability issue. By letter dated 3 March 2005, Mr Utting’s solicitor invited BHP to acknowledge, subject to proof of employment and exposure, that breach of duty would not be in issue. As at 18 March 2005, no response had been received. I do not accept the suggestion made in oral evidence by Mr Hay (whether explicitly or implicitly – at the time of writing I do not have the benefit of a transcript) that BHP was not yet in a position to make that decision.

19 Of more significance, however, is evidence contained in the affidavit of Scott Andrew Hay, one of BHP’s solicitors, sworn 21 March 2005. In para 13 of that affidavit, Mr Hay deposed that, should a party attempt to rely upon a s25B notice of the kind identified in the plaintiff’s solicitor’s affidavit, he would instruct counsel to object on the basis that s25B is a substantive provision of the law of NSW, and could not be applicable in the hearing of Mr Utting’s claim, and also instruct counsel to argue against the use of the findings identified. Such a position does not enable me with any confidence to draw the inference I was invited by counsel for BHP to draw. The procedural provisions accordingly weigh in favour of NSW as the forum. It could not be contemplated that BHP would consider admitting liability if the matter were to be heard in SA, but refrain from doing so if it were to be heard, subject to SA substantive law, in the DDT.

20 In many other respects, save one which I will shortly mention, the circumstances of Schultz ran parallel with those of Mr Utting. While all members of the High Court agreed that the primary judge had erred in the approach he took to the construction and application of the Cross-vesting Act, the Court divided as to the course it should adopt as a consequence of that conclusion. By a majority (Gummow, Kirby, Hayne and Callinan JJ) the Court determined that that matter should be transferred to the Supreme Court of SA. The minority (Gleeson CJ, McHugh and Heydon JJ) considered it far from clear that the interests of justice required transfer. Their Honours would have remitted the matter to this Court for determination in accordance with the principles espoused in the judgments. In doing so their Honours referred to the regard that may be had for the specialist nature of the tribunal and the procedural facilities peculiar to it.

21 It was obvious during the course of the proceedings that sections such as ss25(3) and 25B are a matter of some contention between those legal representatives who regularly represent either plaintiffs or defendants in proceedings in the DDT. But those sections are not productive of unfairness to a party, whether plaintiff or defendant, who would inherit the burden of an adverse decision under s25B or the admission of previously admitted evidence. S25B does not necessarily foreclose argument or litigation of the issues to which it applies. By subs(2) it leaves open the possibility of recontesting any determination of “issues of a general nature” in the light of available new evidence, the manner of the conduct of the proceedings in which the original determination was made, and, most importantly, any other matter that the DDT considers to be relevant. Confidence may be reposed in the DDT to entertain any fresh argument or evidence genuinely and fairly: see Barry, per Mason P, at [114]. S25(3) permits the admission of the evidence in question only by leave.

22 Although Mr Hay deposed that, in the event that a s25B notice were to be served, he would, in a variety of ways, contest the use of the section, he did not suggest that any new evidence is available, that any question exists concerning the manner in which the previous proceedings were conducted, such as to call into question the relevant determination, or that any other relevant matters legitimately raise questions about the determinations upon which Mr Utting would seek to rely.

23 The parallels between Schultz and the present case are strong. The ultimate decision of the High Court was one based upon the specific facts of that case, but the parallels are such that it must be of significant guidance in the determination that I have to make. However, there are two major points of departure between the two cases. One of these is the terminal condition of Mr Utting. That makes urgency in this case much more pressing than applied in Schultz. Schultz was not a case in which the plaintiff in a substantive proceedings was terminally ill. The same urgency did not attend the resolution of his claim as is here present. In saying this I do not mean to undermine the efficiency of the Supreme Court of SA. The evidence shows that that Court will go to considerable lengths to make a hearing available. However, the evidence also shows that the Court has not, except in one case, had to make relevant determinations in cases alleging disease caused by exposure to dust. It may be inferred that the DDT will be able, with its store of accumulated knowledge and experience, to move rather more quickly and to absorb difficult technical evidence with greater expedition. Of even more importance, however, is the circumstance that, in Schultz, BHP had agreed, if the matter were transferred to SA, nevertheless to give Mr Schultz the benefit of the special procedural provisions.

24 It was these provisions that were determinative in the decision of the Court of Appeal in Barry. Both the existence of the procedures, and their voluntary application if transfer were effected in Schultz, weighed heavily with the judges who participated in the joint judgment ([28]). I recognise that the very existence of the debate about whether the sections are to be clarified as substantive or procedural is a factor favouring transfer, but, again, that debate does not determine the issue.

25 Ewins was another case with resounding echoes of the present. Gillard J, having analysed the High Court judgments in Schultz, and factual matters not greatly different from those I have had to consider, decided that that matter should be transferred from the Victorian Supreme Court to the Supreme Court of SA. At [47] his Honour said:

“The fact is that this is a South Australian case. The tort occurred there, the law which would apply would be South Australian law. There would be no debate about different questions of foreign law, the plaintiff resides in that State and I would expect would find it far more comfortable to be living at home when the litigation is under way, that BHP carries on business in South Australia, that most of the witnesses or damages would come from that State, and there is no reason to believe that the South Australian Supreme Court could not provide the same services as expeditiously as in this Court.”

26 That was a case in which, like the present, the plaintiff was suffering from a terminal illness. His life expectancy was in the order of six months from the date of the cross-vesting application. However, the point of major difference between Ewins and the present case is the procedural facilities of the DDT. They did not exist in the Supreme Court of Victoria. The decision in Ewins was, of course, like those of Schultz and Barry, one of fact. Gillard J assessed the interests of justice as requiring transfer to South Australia. In this case I reach a different judgment.

27 Particularly having regard to the basis for the determination in Barry, and the support it received in Schultz, (see esp [28]), I have concluded that the interests of justice do not dictate that this matter be transferred to SA, and do dictate that it remain in the DDT.

28 The summons is dismissed.

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