BHP Billiton Ltd v Utting & Anor

[2005] HCATrans 380

[2005] HCATrans 380

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S136 of 2005

B e t w e e n -

BHP BILLITON LIMITED

Applicant

and

LAWRENCE UTTING

First Respondent

BRAMBLES AUSTRALIA LIMITED

Second Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 11.37 AM

Copyright in the High Court of Australia

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

MR M.J. JOSEPH, SC:   If the Court pleases, I appear with MR M.J. LEEMING, for the first respondent.  (instructed by Slater & Gordon)

MR D.R. CAMPBELL, SC:   If the Court pleases, I appear with MS T. MOISIDIS, for the second respondent, your Honour.  (instructed by A O Ellison & Co)

McHUGH J:   Yes, Mr Walker.

MR WALKER:   Your Honours will see in the reasons of Justice Simpson that the decision she made which involved the weighing up of factors was one that her Honour said, many more times than once, needed to be made in light of this Court’s decision in Schultz.

HEYDON J:   Let us assume that she made arguable mistakes.  Is it better then the Court grant special leave, hear an appeal, then either New South Wales or South Australia dispose of the matter or is it better that the Court refuse special leave to appeal and the matter move speedily to a trial?  The plaintiff may not survive a trip to this Court.

MR WALKER:   Your Honour, the question of how much time would elapse is one which could be dealt with in a number of different ways.

HEYDON J:   No doubt, we could hear the appeal on Monday and make an order on Monday afternoon.

MR WALKER:   Perhaps for remitter, for example, so that the hearing would not need to be one which actually, as in Schultz, by majority resulted in a decision under the Cross‑Vesting Act because our complaint, as your Honours have seen, is that the approach of the majority in Schultz, the reasons for the decision in Schultz, was not followed by her Honour.

HEYDON J:   Maybe I am not making myself plain.  The question of whether it be the Dust Diseases Tribunal or the Supreme Court of South Australia is one which the parties obviously think is important, but what is more important is that the plaintiff have his case heard.

MR WALKER:   Yes.

HEYDON J:   The injured man have his case heard.

MR WALKER:   By that, your Honour means while he is alive.

McHUGH J:   While he is alive.  The evidence suggests that he will die somewhere between mid-July and mid-September, so how are we going to grant special leave in this case, hear an appeal, and then deal with it.  He will be dead.  So why is that not a sufficient discretionary ground to reject this application, notwithstanding the fact that there may be an arguable case of error on the part of the learned judge?

MR WALKER:   Your Honours, it is not clear what position the first respondent takes in relation to the current expectancy, the most updated medical evidence.  The book does not contain the most updated evidence and nothing has come forward notwithstanding the first respondent when the book was settled saying that there would be updated material.  We certainly have updated material – that is very recent material made available this week – suggesting that six to nine months from 23 May is the appropriate estimate.

Now, if I could seek to tender that pursuant to what we had understood was going to be the updating that the first respondent was going to be responsible for.  It is on page 6 of the report, top of the page, it is section 6.2.  Now, that is in one sense only a preliminary matter. 

The first thing to be said is that as a matter of principle in relation to special leave applications raising what, in our submission, is a very important matter of adherence to precedent by single judges, in relation to such important decisions as these cross‑vesting decisions, it could not be the case surely that this Court must deny itself the opportunity to assert proper discipline simply because somebody makes an application in which this kind of egregious error is committed for somebody who is ‑ ‑ ‑

McHUGH J:   But Mr Walker, there is an air of unreality about these submissions.  BHP has not defended liability in any of the 30 or 40 of these types of cases and you have not yet made any decision in relation to this claim.

MR WALKER:   Your Honour, if I could take you to page 16 of the application book.  There was an entirely appropriate contemporary approach between legal colleagues.  Tell us, in effect, what is the difference that would be imported by the so-called, and I stress so-called, procedural advantages under the Dust Diseases legislation compared with the position in South Australia and there has been no response to that at all.  None at all.  My friend says that is not correct, he will draw it to your attention.

There has certainly not been what one would require in response to that request, an indication of the kind of evidence which it is argued, and it can only be an argument, would be available in the Dust Diseases Tribunal but not in the Supreme Court of South Australia.  That lies with the plaintiff, not with the defendant.  The urgency of a case does not work for reversal of an onus of proof.  Nor is there to be asserted against the interests of justice calculus required by the Cross‑Vesting Act, the notion that it is not for defendants to, for example, deny liability.  Now, your Honours, given that ‑ ‑ ‑

McHUGH J:   That letter of yours of 2 March, to which you referred us, was answered on 3 March, was it not?

MR WALKER:   Your Honour, there is no substantive answer at all.

McHUGH J:   It is set out at page 18 of the book.

MR WALKER:   A response to the request at 16 numbered 2 is simply not supplied by the answer to correspondence at 18.  Our statement remains and is correct.  There is no response to that request.  Now, when one is facing a comparison between the way in which litigation will be conducted in two different forums and where it is common ground that the natural one is South Australia – common ground the natural one is South Australia – and where so much of the position of the plaintiff and certainly the reasoning of her Honour depended upon what was called tendentiously procedural provisions, then the request that we made at page 16 went to the heart of any real difference.

For their own reasons the plaintiff, who cannot be dispensed by reason of his unfortunate state of health, who cannot be dispensed from the obligations of a plaintiff, for reasons best known to those advising the plaintiff, there has been no response to that, which means, of course, that her Honour was never able to supply any finding of material of a kind sufficiently precise to enable the balance which at first sight must have strongly favoured South Australia for exactly the reasons that Justice Gillard decided Ewins in Victoria as your Honour has seen.

McHUGH J:   I know, but Justice Simpson said there are two points in this case which distinguished it from Schultz.  The first was the terminal condition of Mr Utting and the second was that in Schultz, BHP had agreed that if the matter were transferred to South Australia it would give Mr Schultz the benefit of the special procedural provisions.

MR WALKER:   Now, can I take each of those in turn.  The first bears comparison with the position in Ewins, six months in Ewins, and in any event, the finding of her Honour was that South Australia could deal with it during his lifetime and we have not been responsible for any delay, with respect.  So that should have been determined in our favour, that aspect of the events.

As to the second one, there is this difference, that in Schultz there was that concession – Schultz, of course, being a case which had far more detail in relation to the position than is available in this case – in this case at the early stage we asked, tell us what you say would be the advantage with the assumption of law, of course, that 25B will be available in the Dust Diseases Tribunal at all.  That is a matter where the reasons in the High Court in Schultz, particularly, for example, paragraph [253] in Justice Callinan’s reasons, means there will be an argument as to whether it is available at all - a factor itself which weighed in favour of South Australia – but we asked, show us what would be differentiated by procedure under that statute and procedure in South Australia and we will consider whether it will be an issue at all.

McHUGH J:   Well, the judge at first instance, the primary judge, thought there were two differences and she also thought there was a difference with Ewins which I do not think you can dispute, namely that the Supreme Court of Victoria does not have the procedures of the Dust Diseases Tribunal.  Now, this is a one-off case.

MR WALKER:   It is a one-off case, like all one off-cases ‑ ‑ ‑

McHUGH J:   It is a one-off case.  It stands for nothing.

MR WALKER:   Your Honour, that, alas, may not be the way in which things are proceeding, however.  I think we have put on our list of authorities a case which we hand up.  It can be seen that it is not being treated as standing for nothing.  It is being treated as a precedent.  I will not take your Honours to that decision in detail, but in Regit (No.2) Justice Simpson’s reasons are being treated as a reason to determine cases against a transfer to their natural forum.

McHUGH J:   Well, that may itself indicate error in those other cases ‑ ‑ ‑

MR WALKER:   And your Honour that is ‑ ‑ ‑

McHUGH J:   Cases where discretions are to be exercised are not to be decided by comparing the facts of one case to another.  That is a lesson the legal profession never seems to make.

MR WALKER:   But, your Honour, may I say, with respect, we cannot quote what your Honour has just said from the transcript of a special leave application to ensure that that error is not committed over and over again.  We can quote judgments of the High Court.  But at the moment the only judgment of the High Court we have in this area is Schultz and quoting the majority approach in Schultz for the decision in that case did not avail in Utting and did not avail in Regit (No. 2).

In our submission, that is a disturbing state of affairs in relation to stare decisis because, of course it is not factual outcomes which bind, but it is judicial approach which is to be taken, faithfully, loyally, without qualification from the majority approach in the High Court and it has not been taken that way in Utting and it has not been taken that way in Regit (No. 2).  It is, what is called in the joint judgment, recognised to be the minority in Schultz which has provided the guidance to these two judges recently in the Supreme Court of New South Wales without any possibility of correction except by this Court.

McHUGH J:   But even Schultz itself may stand for a principle that is arguable as to what use you can make of the facts.  Justice Windeyer once said, “I have to decide this case not by comparing it with the facts of other cases but by determining what I think is reasonable in the circumstances”.  That is the correct approach.

MR WALKER:   Yes, your Honour, but although one might be forgiven for thinking otherwise occasionally the fact is that the jurisprudence, say in negligence, of the High Court is what makes the law of negligence, notwithstanding the decisions of the facts of any particular negligence case has no precedential value at all.  The same is true ‑ ‑ ‑

McHUGH J:   If the High Court decides a breach of duty case, it decides a question of fact.  It is an authority for nothing.

MR WALKER:   Quite.  That does not mean that it is of no purpose jurisprudentially or in the judicial hierarchy, the discipline of a case law system for the ‑ ‑ ‑

McHUGH J:   Should not even be reported.

MR WALKER:   My point is that that does not mean that it is of no use for the High Court to decide with published reasons negligence actions which do make the law of negligence in a useful fashion, with great respect.  Now, this case is sometimes loosely called a question of discretion, but it should not be understood as being a discretion in the ordinary sense at all.  It is an assessment of where the interests of justice lie with then a mandatory outcome when that balance, which has to be done other than merely impressionistically, it must be for revealed reasons why the interests of justice require or do not require a transfer. 

It is clear that as to the approach in identifying and weighing up the factors, many of them in tension with each other or countervailing each other, that her Honour has proceeded and then later Justice Hall has proceeded, following her Honour’s approach, perceiving the proper approach to be that which was to be gathered from observations, not for a decision but for a remitter, observations of the minority of your Honours in Schultz.

That, in our submission, is itself a serious matter attracting the appellate attention of this Court, one hopes once and once only and, as it were, briskly, so as to ensure that in future judges follow such approach as is to be gathered from, in particular Justice Gummow’s reasons together with Justice Callinan’s reasons not materially different, for the actual decision under the cross‑vesting legislation made by this Court in Schultz. 

Of course, there is nothing precedential in the weighing up of the particular factors in Schultz compared with those here, but as her Honour recognised there are guidelines to be gathered from this Court’s decision in Schultz.  The difficulty is she went to entirely the wrong repository of those guidelines and has not supplied any reasoning as to why that could be justified, for example, by particular differences between this case and Schultz.

When one looks in particular at paragraph 24 in her Honour’s reasons at page 79 of the application book, it is clear that – that is just a culminating expression by her Honour – she is treating what she calls “the judges who participated in the joint judgment” which is the minority in the second line on page 78 of the book as your Honours will recall, she is gathering a guideline to her decision from their reasons so it is not possible for the respondent to say her Honour was correctly treating Schultz as not the source of any guidance at all.  She was, with respect, correct in the first step, namely I should as a single instance judge gather what guideline I can as to proper approach from the way it was done in Schultz recognising, of course, that I still have to make a decision on the particular facts with those general statutory requirements and judicial guidelines. 

But the difficulty is, notwithstanding earlier recognition of the difference of the majority approach, her Honour gives no weight whatever and no recognition whatever to the way in which those reasons would tend in the opposite direction, particularly bearing in mind what your Honours will see described in her paragraph 19, page 77 of the book, about line 36, as the so-called “procedural provisions”.

Now, what is clear to demonstration from the division of opinion in Schultz is that there is a matter yet to be determined in relation to the status of those provisions.  Are they procedural in the sense that they will fall to

be applied by the Tribunal if it is exercising jurisdiction, or are they substantive in the sense that they cannot apply to this tort, this tort being utterly, undiluted South Australian in character. 

For those reasons, in our submission, as is demonstrated – and this is simply, we would submit, the first of the illustrations as is demonstrated by Justice Hall’s approach in Regit (No.2), what has happened is that notwithstanding the majority reasons for decision in Schultz there has been a return to a minority approach in Barry.  The approach of Justice Mason was not the approach of the majority.  The majority decided the case on a concession about 25B that has no correlate here.

That, in our submission, is providing a false track for the Supreme Court in its decisions under this very important scheme of legislation for the disposition of litigation around the country and they have, in our submission, contrary to the majority in Schultz, reinstated the notion that Dust Diseases Tribunal specialness is effectively determinative, even in the cases which are most strongly prima facie in favour of transfer. 

The expense after all that her Honour made findings about all favoured South Australia.  When it came to money it all favoured South Australia.  There is no attempt to quantify, even by estimate, what saving of time these so-called “procedural provisions” could supply in this case.  That was to defy the proper approach to the weighing up and assessing of factors required by all seven members of the Bench in Schultz.  May it please your Honours.

McHUGH J:   Yes, the Court need not hear you, Mr Joseph or Mr Campbell.

In this matter Justice Simpson dismissed a summons filed by the applicant seeking, in effect, removal of the proceedings brought by the first respondent from the Dust Diseases Tribunal of New South Wales to the Supreme Court of South Australia.  The applicant contends that her Honour misapplied the decision of this Court in BHP Billiton v Schultz (2004) 79 ALJR 348.

It is unnecessary to decide whether that is arguably so or not.  Special leave should be refused, in our view, for the following reasons.  There is evidence that the first respondent will die between mid‑July and mid‑September this year.  Further evidence was handed up by the applicant this morning to suggest that the applicant’s life expectancy may extend until December of this year or perhaps even February of next year.

If special leave were granted it will be very difficult for this Court, unless it displaced another case – thereby causing inconvenience to the parties to that case – to be sure of hearing the appeal and to decide the appeal in sufficient time for either the Dust Diseases Tribunal, if the appeal were dismissed, or the Supreme Court of South Australia, if it were allowed, to hear the case before the first respondent’s death. 

In those circumstances, it is better that the limited time available and the energy of the parties be directed to a hearing of the primary matter, the first respondent’s claim, while he still retains sufficient strength to advance it rather than to an investigation of the relatively subsidiary question of which court is to hear the case.  In reaching the conclusion we have, we have also taken into account that, in our view, the decision of Justice Simpson is a decision on a particular set of facts and itself is of no precedential value.

The application is dismissed.  The applicant and the second respondent should pay the costs of the first respondent – I am not sure about that.  What is the position of the second respondent in terms of ‑ ‑ ‑

MR CAMPBELL:   Your Honour, we certainly supported the application.  We really could not say anything against your Honour’s order.

McHUGH J:   Yes.  I will amend the orders I just made in relation to the costs.  The applicant should pay the costs of the first respondent.  I make no order as to costs of the second respondent.

The Court will now adjourn to reconstitute.

AT 12.02 PM THE MATTER WAS CONCLUDED