Douglas v Australian Asbestos Pty Ltd - [2009] WASC 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DOUGLAS -v- AUSTRALIAN ASBESTOS PTY LTD [2009] WASC 70

CORAM: LE MIERE J

HEARD: 10 MARCH 2009

DELIVERED : 10 MARCH 2009

FILE NO/S: CIV 2814 of 2008

BETWEEN: TREVOR ALLAN DOUGLAS
Plaintiff
AND
AUSTRALIAN ASBESTOS PTY LTD
First Defendant
WALLABY GRIP LTD
Second Defendant
AMACA PTY LTD (Formerly James Hardie & Coy Pty Ltd) (ACN 000 035 512)
Third Defendant
SYDNEY WATER CORPORATION (ABN 49 776 225 038)
Fourth Defendant

Catchwords:

Procedure - Application to transfer action to District Court - Asbestosis case - Observations on exercise of discretion to transfer - Procedure in CMC list

Legislation:

Supreme Court Act 1935 (WA), s 17

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J Magazanik
First Defendant              :     No appearance
Second Defendant         :     Ms S M Franklyn
Third Defendant            :     Ms J M Kubacz
Fourth Defendant           :     Mr Nagpal

Solicitors:

Plaintiff:     Slater & Gordon
First Defendant              :     No appearance
Second Defendant         :     SRB Legal
Third Defendant            :     Minter Ellison
Fourth Defendant           :     DLA Phillips Fox

Case(s) referred to in judgment(s):

Nil

LE MIERE J: This matter was commenced by a writ of summons issued out of this court on 16 January 2009. The plaintiff claims damages for personal injury suffered as a result of contracting asbestosis. The matter was admitted to the Commercial and Managed Cases (CMC) list on 17 February 2009. The second defendant now applies pursuant to the Supreme Court Act 1935 (WA) s 17 for an order that the action be transferred to the District Court.
The application is supported by the third defendant and opposed by the plaintiff. The first and fourth defendants do not make any submissions. Section 17 of the Supreme Court Act provides that the court may order that the action be transferred to the District Court if, amongst other things, the action is within the jurisdiction of the District Court.
This action is within the jurisdiction of the District Court. The District Court has unlimited jurisdiction with respect to claims for personal injuries or for damages for personal injury. The District Court is the principal court for the determination of claims for damages for personal injury. Claims for damages for personal injury from asbestosis have been heard in this court; however, I am satisfied that claims for damages for asbestosis are usually heard in the District Court.
A plaintiff may commence a proceeding in the court of his choice if the proceeding is within the jurisdiction of the court. However, s 17 of the Supreme Court Act confers on the court a discretion to transfer the proceeding to the District Court if the proceeding is within the jurisdiction of that court. The court should exercise that discretion if it is in the public interest to do so and the interests of justice do not require that the proceeding remain in this court.
It is generally in the public interest that claims for damages for personal injury should be brought in the District Court unless there is good reason for the proceeding to be brought and remain in this court. It may be appropriate for a personal injury matter to be litigated in the CMC list in this court where it is appropriate that it be docket managed by a judge of this court because of the need for expedition, the complexity of the issues or for some other good reason.
The processes of docket case management by a judge in this court and the availability of early trials facilitate the expeditious resolution of a matter to a degree that is not presently available in the District Court. An example of cases where the interests of justice require that the case be brought in this court are cases for damages for personal injury where the plaintiff has mesothelioma. In such cases the plaintiff generally has a limited life expectancy and the procedures of this court permit the case to be resolved by mediation or trial more expeditiously than if the proceedings were in the District Court.
In this case the second defendant says that this is a typical asbestosis claim that does not appear to be out of the ordinary and it is a non‑urgent claim. On the other hand, counsel for the plaintiff in his written submissions says that the complexity regarding apportionment and liability issues are among the factors influencing the plaintiff seeking to have his claim heard in the CMC list. I am not persuaded that the apportionment or liability issues are sufficiently complex to make it appropriate that the case be heard in the CMC list for that reason alone.
However, the plaintiff says that the plaintiff's desire to have the matter dealt with as expeditiously as possible is a reason for the matter to remain in the CMC list. Of course most, if not all, plaintiffs desire to have their case resolved as expeditiously as possible and that is not of itself a sufficient reason for the matter to remain in the CMC list. However, counsel for the plaintiff says that the plaintiff's condition is deteriorating and that makes it appropriate that the matter remain in the CMC list so that the processes of the list facilitate the matter being dealt with as expeditiously as possible.
The only expert medical evidence before me is the report of Dr Michael Musk of 3 July 2008. Dr Musk there said amongst other things:
In summary, [the plaintiff] has moderate to severe interstitial lung disease as a consequence of asbestosis. That is going to have a major impact on his life as it is not treatable and the general expectation is that it slowly deteriorates. He currently flies to New Guinea for work and long haul high altitude flights can increase the possibility of complications, including pulmonary hypertension.
In his affidavit of 9 March 2009, Mr Magazanik referred to a medical report dated 30 October 2008 by Professor Bill Musk and says that in that report Professor Musk estimated the plaintiff's life expectancy as between five and 10 years. If that was the whole of the evidence before me, that does not make out a case of sufficient urgency that the matter would be more appropriately dealt with in this list than in the District Court and through the interlocutory processes and the availability of a trial in that court.
However, there is some, albeit very sparse, evidence before me that the plaintiff's condition has deteriorated and that that deterioration has brought about a position where there is now more urgency in resolving the matter. In [7] of his affidavit affirmed on 9 March 2009 Mr Magazanik says:
Since receiving [the report of Professor Musk of 30 October 2008] the plaintiff's condition has continued to deteriorate. In terms of the plaintiff's current health I am instructed that he is now required to use bottled oxygen at times and in December 2008 he spent much of the Christmas period in Sir Charles Gairdner Hospital being treated for breathing difficulties.
As I have said, the evidence is regrettably sparse but nonetheless there is uncontested evidence before me, to the effect that the plaintiff's condition has deteriorated to the extent that I have referred to. In the end in my view this is a borderline case but in all the circumstances I conclude that the interests of justice are best served by the matter remaining in the CMC list so that it may be docket managed by a judge and resolved more expeditiously than if the matter was to be transferred to the District Court. Accordingly, the application will be dismissed.