Estate of Terence James Roberts v Midalco Pty Limited
[2024] VSC 240
•14 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST
S ECI 2022 03006
| ALISON JANE THOMSON AND JAMES STUART ROBERTS (as the Executors of the Estate of the late Terence James Roberts) | Plaintiffs |
| v | |
| MIDALCO PTY LIMITED & ORS (in accordance with the attached schedule) | Defendants |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 May 2024 |
DATE OF RULING: | 14 May 2024 |
CASE MAY BE CITED AS: | Estate of Terence James Roberts v Midalco Pty Limited |
MEDIUM NEUTRAL CITATION: | [2024] VSC 240 |
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PRACTICE AND PROCEDURE — Cross-vesting — Claim for damages for personal injury — Mesothelioma — Where alleged asbestos exposure occurred in three states — Application to transfer proceeding to South Australia — Whether South Australia is the more appropriate forum — Jurisdiction of Courts (Cross-vesting) Act 1987 (VIC), s (2)(b)(iii) — Dust Diseases Act 2005 (SA), s 8 — James Hardie and Coy Pty Ltd v Barry (2000) 50 NSWLR 357 — Interests of justice — Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | P Over with K Bradey | Gordon Legal |
| For the Third Defendant | S Mukerjea with D Dexter | HWL Ebsworth Lawyers |
HIS HONOUR:
Terence Roberts, who died in January 2023, allegedly suffered mesothelioma caused by exposure to respirable asbestos dust and fibres. The plaintiffs, who sue as executors of Roberts’ estate, allege in this proceeding that exposures to asbestos dust and fibres in Western Australia, South Australia and Victoria were each a cause of Roberts contracting mesothelioma.
By summons filed 21 December 2023, the third defendant has applied under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) for the proceeding to be transferred to the Supreme Court of South Australia, so that it can be heard in the South Australian Employment Tribunal (‘SAET’). The application is opposed by the plaintiffs. The first, second and fourth defendants and the third parties neither opposed nor consented to the application, and took no part in the hearing.
For the following reasons I conclude that Victoria is the most appropriate jurisdiction for the hearing of the claims made in the proceeding, and that the application by the third defendant to transfer the proceeding to South Australia should be dismissed.
Evidence
The third defendant relies on affidavits sworn by its solicitor, Scott Hay, on 21 December 2023 and 26 February 2024.
The plaintiffs rely on affidavits affirmed by their solicitor, Victoria Keays, on 16 February 2024 and 20 February 2024, together with an affidavit of solicitor Tessa Dickie, affirmed 2 May 2024.
Procedural history
The proceeding commenced by the filing of a generally indorsed writ on 8 August 2022.
Roberts died on 21 January 2023. The plaintiffs were substituted for Roberts by an amendment to the writ filed on 12 September 2023. The writ was then served.
Defences have been filed by the third and fourth defendants, but not by the first and second defendants.
The third defendant filed a third party notice on 19 April 2024. The third parties have filed notices of appearance but not defences.
Roberts’ widow, Julia Roberts, suffers from multiple myeloma. The condition is progressive and debilitating. In November 2023 Julia Roberts’ treating physician, Professor Miles Prince, gave an opinion about her prognosis and life expectancy. Based on that opinion, orders were made by consent on 21 February 2024 fixing the proceeding for trial on 9 October 2024 before a judge and jury. The parties estimate that the trial will occupy five to seven sitting days.
Pleaded case and defences
The plaintiffs, two of Roberts’ children and executors of his estate, bring the case for the benefit of the estate and Roberts’ dependents at the time of his death, Julia Roberts and son Timothy Roberts.
The plaintiffs allege Roberts was first exposed to inhalation of asbestos when he accompanied his father on a tour of a blue asbestos mine and mill at Wittenoom in Western Australia in the late 1950s (‘Western Australian exposure’). The plaintiffs allege the Wittenoom premises was owned and operated by the first and second defendants. They allege the tour included Roberts:
(a) entering into the blue asbestos mine to watch the process of mining ore containing asbestos, including a miner extracting ore containing asbestos in a confined space; and
(b) opening the doors to the asbestos mill to see the processing of mined ore containing asbestos.
The first and second defendants have not yet filed a defence responding to this allegation.
The plaintiffs allege the second period of exposure occurred when Roberts was employed by the third defendant in South Australia from 1961 to 1977, first at the steelworks in Whyalla, then at a scree plant in Iron Knob, and finally at a pellet plant in Whyalla (‘South Australian exposure’). The third defendant admits it employed Roberts in South Australia for periods during the 1960s and 1970s, but does not admit that he was exposed to respirable asbestos dust and fibres at all during his employment or alternatively to the extent alleged.
The plaintiffs allege Roberts experienced further exposure during his employment with the third defendant between 1983 and 1985 at its head office in Melbourne (‘Victorian exposure’). The third defendant denies Roberts was exposed at all, or alternatively to the extent alleged, during this period of employment. The third defendant further pleads that any exposure that did occur in Melbourne was de minimis and did not cause or materially contribute to Roberts’ injury.
The third defendant makes a partial admission in relation to foreseeability in its defence, but this does not extend to an admission that Roberts was exposed to respirable asbestos dust during his employment in South Australia or Victoria. The third defendant denies breach, the plaintiffs’ allegation that Roberts contracted mesothelioma from his exposure to asbestos dust and fibres, and that there was any negligence by it that caused or materially contributed to Roberts’ injury.
The third defendant also denies the claim for loss and damage made on behalf of Roberts’ estate and the dependency claims made on behalf of Julia and Timothy Roberts.
The plaintiffs allege that some of Roberts’ South Australian exposure was to asbestos manufactured or supplied by the fourth defendant. The third defendant alleges that the asbestos dust and fibre to which Roberts was allegedly exposed in South Australia came from products that were manufactured, supplied and/or installed by the third parties.
Evidence
Hay
I summarise Hay’s evidence as follows:
(a) Based on the allegations in the statement of claim, Roberts’ overwhelming exposure to asbestos dust and fibre occurred in South Australia.
(b) The Western Australian exposure would typically be referred to as ‘environmental’ exposure, which you would expect the first and second defendants to plead was de minimis and not causative.
(c) The allegations of exposure over about 16 years in South Australia ‘will need to be the subject of extensive investigation’.
(d) The alleged Victorian exposure would be considered ‘background’ and ‘no more than that experienced by any member of the public working in commercial buildings in Melbourne during that period’.
(e) Each defendant has a presence and has defended asbestos claims in South Australia, and has retained legal representation from practitioners with offices in South Australia.
(f) The third defendant will obtain evidence from several lay witnesses in respect of Roberts’ alleged South Australian exposure. The third defendant intends to call witnesses to give evidence about the fact of exposure, extent of exposure, procedures and products. Two witnesses have been identified to give that evidence.
The SAET has a dust diseases list which deals with claims of this nature made under the Dust Diseases Act 2005 (SA) (‘Dust Diseases Act’). Hay said:
41.The special Dust Diseases List of the District Court in South Australia has heard the following matters in which BHP was a defendant relating to alleged exposure to asbestos dust and fibre at its Whyalla shipyards and steelworks:
a.BHP Billiton Limited ats Kenneth John Cadoo (as legal personal representative of the estate of the late William John Cadoo) (829 of 2007, exposure period 1961 – 1963.)
b.BHP Billiton Limited ats William James Parker (1570 of 2006, exposure period 1964 – 1966, 1970–1977).
c.BHP Billiton Limited ats Lynette Shaw (as legal personal representative of the late Rodney King) (1168 of 2006, exposure period 1967 – 1972).
d.BHP Billiton Limited ats Margaret Hamilton (as executrix of the estate of the late Raymond Charles Hamilton) & Anor (743 of 2007, exposure period 1964 – 1965).
…
43.During the course of the above trials, a large body of evidence was tendered in relation to matters concerning the liability of BHP for injuries arising from alleged exposure to asbestos dust and fibre at its Whyalla premises including on the following issues:
a.exposure;
b.foreseeability;
c.causation;
d.the constructive and actual knowledge of BHP regarding the dangers of asbestos over time.
44.In the matters of Cadoo, Parker, Shaw and Hamilton, evidence was given by lay witnesses who had been employed by BHP or employed as insulation contractors at Whyalla. Their evidence covered the period relevant to the present matter, namely, 1961 – 1977.
45.Evidence was also given by experts on the issues of foreseeability and causation in the above matters. Those experts include Gordon Stewart, Margaret Becklake, Professor Douglas Henderson, Michael Kottek, Alan Rogers, Dr Ral Antic and Associate Professor Brian Smith.
Keays
I summarise the evidence given by Keays as follows:
(a) Roberts lived in Victoria from 1983 to the date of his death.
(b) Roberts was treated for his mesothelioma by medical practitioners and hospitals in Victoria. The plaintiffs intend to call evidence from the following treaters: Associate Professor Thomas John, oncologist; Dr Murad Ibrahim, respiratory physician; Dr Nicholas Rubos, cardiothoracic surgeon; the Peter MacCallum Cancer Centre; Knox Private Hospital; and a general practitioner at the Blackburn Clinic.
(c) Julia Roberts will be called to give evidence at the trial, both in relation to her observations of the impact of mesothelioma on Roberts and in relation to the care and assistance Roberts provided to her during his lifetime. Julia Roberts resides in Blackburn, Victoria. She is currently undergoing treatment for multiple myeloma that includes regular four-weekly intravenous immunoglobulin. Julia Roberts suffers side effects including significant lethargy and nausea.
(d) Julia Roberts wishes to participate in the trial of the proceeding to the full extent she is able having regard to her medical condition.
(e) Julia Roberts’ treating specialist, Professor Prince, will be called as a witness in relation to her dependency claim.
(f) Other likely witnesses at the trial of the proceeding include industrial hygienist Michael Kottek who resides in Ocean Grove, Victoria, and occupational therapist Natala Cogger from New South Wales.
(g) The first plaintiff now resides with Julia Roberts in Victoria to provide care and assistance to her.
(h) The first plaintiff will be a witness at trial in relation to her observations of the impact of mesothelioma on Roberts, and the care and assistance she provided to him during his lifetime. The first plaintiff wishes to be present for the entirety of the trial and participate in the trial to the full extent she is able. The first plaintiff also wishes to be present in order to provide support and care for her mother.
(i) Timothy Roberts resides in Clifton Hill, Victoria and has an intellectual disability and epilepsy. If Timothy has the capacity to give evidence, he will be called as a witness at trial. It is likely medical practitioners who treat him will also be required to give evidence at trial.
Kottek
The report of occupational and environmental health consultant Michael Kottek commissioned by the plaintiffs’ solicitors dated 8 September 2022, and Kottek’s notes of conference with Roberts, were tendered as exhibits to Hay’s second affidavit.
In his report in relation to the Western Australian exposure, Kottek said (footnotes omitted):
Mr Roberts recalled being struck by the narrow and cramped conditions the miners worked in underground and could not recall any water being used for dust suppression. Mr Roberts recalled opening an upper level door into the mill and couldn’t believe the haze that was present inside the mill and then observed dusty conditions in the lower level of the mill. Mr Roberts does not think he physically entered the mill. In my opinion there is nothing in Mr Roberts’ history that suggests he is likely to have experienced significant non-occupational exposure to asbestos outside of his visit to Wittenoom.
…
I would note that Mr Roberts’ exposure at Wittenoom would have been to crocidolite (blue asbestos) which is far more potent at inducing mesothelioma than other forms of asbestos, and this exposure occurred at a relatively young age. However, the significance of Mr Roberts’ exposure at Wittenoom is limited by the relatively short time and isolated nature of this exposure.
Kottek set out the alleged South Australian exposure in detail. Kottek said that the bulk of Roberts’ risk of mesothelioma was attributable to the South Australian exposure. He said the Victorian exposure was ‘unlikely to have made more than a very modest contribution to [Roberts’] overall cumulative exposure to asbestos and risk of mesothelioma’.
Klebe
The plaintiffs’ solicitors commissioned and tendered a report of pathologist Professor Sonja Klebe dated 26 April 2024.
Klebe said that each pattern/episode of asbestos exposure contributes causally to the development of mesothelioma, and that no threshold level below which there is no risk or causal effect for mesothelioma has been delineated. She said the disease is indivisible and that a tumour must be regarded as the sum of all exposures.
Klebe confirmed Roberts’ diagnosis of mesothelioma. She said that all exposures contributed to the development of Roberts’ mesothelioma since the effects of the separate exposures cannot be separated ‘in any biologically meaningful way’. Klebe focused on the Western Australian and South Australian exposures, however she referred to the presence of sprayed limpet asbestos in the third defendant’s headquarters, and to Roberts’:
bystander exposure from the uncontrolled installation and removal of asbestos insulation including sprayed limpet asbestos.
Principles and authorities
The third defendant applied to transfer the proceeding to South Australia under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (VIC), which relevantly provides:
(2)Where —
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and
(b)it appears to the first court that— …
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory—
the first court shall transfer the relevant proceeding to that other Supreme Court.
The provision creates a statutory requirement to transfer a proceeding if it is in the interests of justice to do so. That will be the case if the transferee court is the more appropriate forum for determination of the issues in the proceeding.[1]
[1]BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [14] (Gleeson CJ, McHugh and Heydon JJ) (‘Schultz’).
Consideration of the nature and relative weight of connecting factors between the claim made in the proceeding and the two forums or state courts under consideration will generally determine which is the appropriate forum.[2] I adopt the helpful summary of relevant factors set out by Forbes J in Vernon v Kaefer Integrated Services Pty Ltd & Anor [2023] VSC 667:
12.Proving the other court is the more appropriate forum does not require the first court to be shown to be clearly inappropriate. The starting point is the court in the place where the tort occurred. From the starting point, the court considers the relevant connecting factors to the first court and those of another court. Where there is a coincidence between the location of the tort and the residence of the parties, then the court of that place will generally be the more appropriate or natural forum. However, where there is not such a coincidence, the Court will consider and place appropriate weight on the various connecting factors to arrive at the more appropriate court. Different places of residence of the parties may cancel each other out as connecting factors to one or other forum. In Irwin v State of Queensland,[3] Robson J summarised these factors in a tortious action such as in this proceeding as including: the place where the wrong occurred, the residence of the parties (and for a corporation the place where it carries on business), the convenience of parties and witnesses, the law governing the proceeding, the experience of a particular court and its ability to provide an efficient and speedy trial, and the health condition of a party.
[2]Ibid, [19].
[3][2011] VSC 291.
Submissions
Third defendant
The intensity and duration of the alleged South Australian exposure dwarfs the alleged Western Australian and Victorian exposures, both of which might be argued at trial to be de minimis. This means the predominant focus of the evidence at trial, and therefore the overwhelming share of the parties’ time and resources, would be dedicated to the South Australian exposure and the alleged acts or omissions of the defendants relevant to it. The court should proceed from the starting point that South Australia is the natural forum for the proceeding and should afford particular weight to that fact when determining where the interests of justice lie.
As the alleged South Australian exposure would be the predominant focus of the proceeding, the most consequential legal questions in the proceeding will be governed by South Australian law. Of particular relevance is s 8 of the Dust Diseases Act, which creates evidentiary presumptions and allows for the admission of evidence and findings of fact from other proceedings. Any dispute about whether the provision is substantive or procedural law would be avoided if the proceeding was transferred to South Australia.
Invoking s 8 of the Dust Diseases Act will result in a significant procedural advantage that shortens and streamlines the trial of the proceeding, reducing costs incurred by the parties and advancing the just and efficient administration of justice. There is now a body of evidence and case law in South Australia concerning alleged asbestos exposure at the third defendant’s Whyalla steelworks, from which the parties or SAET may draw. If that provision is procedural, it will not be available to this court. Invoking s 8 of the Dust Diseases Act in this case to achieve substantial savings in time and cost neutralises to a large extent the inconvenience that might be caused to some witnesses should the proceeding be transferred to South Australia.
The third defendant intends to call two lay witnesses who were former employees at the Whyalla steelworks to give evidence concerning exposure and procedures implemented to manage risk. Those witnesses reside in South Australia. The plaintiffs’ lay witness evidence on damages is likely to be narrow and largely unchallenged. It is unlikely any of the plaintiffs’ medical witnesses will be required to give viva voce evidence. Other expert witnesses are unlikely to be attacked and could give evidence remotely. The third defendant would consent to Julia Roberts giving her evidence de bene esse in Victoria. Although it is understandable that she wishes to participate in the proceeding to the fullest extent possible, she has no entitlement to do so in the same way as a party to the proceeding. If the first plaintiff is unable to attend the trial in person, there is no impediment to her providing effective and prompt instructions remotely. This is not a case in which the transfer of the proceeding would deny the injured party their day in court.
Plaintiffs
The proceeding involves allegations of exposure in three different states. The trial court will need to apply the substantive law for each of the three different alleged places of asbestos exposure, two of which will be foreign to it. The SAET is no better placed to do this than the Supreme Court of Victoria.
The main cause of action in the plaintiffs’ amended statement of claim relies on common law negligence. This means there is no material difference between the laws of different states that will apply to the cause of action as between the plaintiffs and the defendants. As the amended statement of claim does not rely on presumptions under the Dust Diseases Act, the Supreme Court of Victoria will not be called upon to construe s 8(1) and (2) of the Dust Diseases Act or determine if they are substantive or procedural.
Reliance on presumptions or findings of fact under s 8 of the Dust Diseases Act will provide no real advantage in terms of the efficiency of the trial. Evidence as to the state of knowledge of the defendants will not be particularly time consuming and the trial judge will be required to make individual findings in relation to the nature of Roberts’ work and employment, and the assessment of damages.
Contrary to the third defendant’s submission that the South Australian exposure was the most significant and would therefore consume the most time and resources at trial, the lightest exposures are often the most contentious and resource-intensive in asbestos litigation.
There is an overwhelming number of witnesses based in Victoria, which weighs in favour of the proceeding remaining in this court.
Both Julia Roberts and the first plaintiff wish to take an active role in the trial of the proceedings. This would be difficult if the trial was transferred to South Australia, given Julia Roberts’ health issues and the first plaintiff’s care responsibilities for her mother and brother. Further, Julia Roberts is Roberts’ recent widow and a key witness to the care that he provided to her prior to his death, a central element of the dependency claim. It is in the interests of access to justice that both Julia Roberts and the first plaintiff are able to attend meetings with solicitors and counsel in person, be present in court throughout the trial to observe and give instructions, and to give their evidence in person.[4]
[4]Arentz v Amaca Pty Ltd [2013] VSC 94 [26]; Vernon v Kaefer Integrated Services Pty Ltd & Anor [2023] VSC 667 [32].
Insofar as the third defendant intends to call lay witnesses who reside in South Australia, the plaintiff consents to these witnesses giving evidence by audio-visual link.
Analysis
The plaintiffs allege Roberts was exposed to respirable asbestos in three states: Western Australia, South Australia and Victoria. There has been no admission of exposure, breach or causation by any defendant. Any exposure to asbestos dust and fibres that is above de minimis will be causative of mesothelioma. Causation is not divisible.
I reject for the following reasons the third defendant’s submission that, as a starting point, South Australia is the natural forum for the proceeding because of the alleged intensity and duration of exposure, and therefore the high degree of connection with that jurisdiction. First, subject to any substantive difference in the assessment of damages between the states, the plaintiffs will be entitled to a full award of damages whether they succeed in only one, any two or all three of the pleaded claims. In that sense, the alleged extent and duration of the South Australian exposure does not elevate it in importance above the alleged Western Australian and Victorian exposures.
Second, as the plaintiffs correctly observed, a significantly higher level of alleged exposure may ultimately be less contentious and consume less court time and resources than alleged exposure that is more modest in the sense that it was less intense or occurred for only a brief period. Issues of foreseeability, breach and causation may be more straightforward when exposure is alleged to have occurred for a long period and/or at a relatively high intensity.
Third, there is no foundation for the third defendant’s submission that the predominant focus of evidence at the trial and ‘the overwhelming share of the parties’ time and resources’ will be the defendants’ alleged acts or omissions in relation to the South Australian exposure. Apart from the time that might be consumed on Western Australian and Victorian liability issues, there remain questions of injury, loss and damage which are not the subject of any admission at this stage. Roberts was resident in Victoria for the last 40 years of his life. Julia and Timothy Roberts, each of whom experiences significant disability, continue to reside in Victoria. Issues of care and dependency will be relevant to the assessment of damages. It cannot be assumed, on the basis of the submissions made by the third defendant on this application, that significant damages issues will not need to be determined at trial, or that these issues will take less time and resources than those issues relevant to the alleged South Australian exposure and liability.
I also reject the third defendant’s submission that the potential for application of s 8 of the Dust Diseases Act, to shorten the trial and result in other efficiencies if the proceeding were transferred, is a significant consideration in determining where the interests of justice lie.
To address this submission it is necessary to consider the facts in James Hardie and Coy Pty Ltd v Barry (2000) 50 NSWLR 357 (‘Barry’), a decision upon which the third defendant heavily relied. The plaintiff in Barry, who suffered lung cancer, commenced proceedings in the NSW Dust Diseases Tribunal claiming his cancer was caused by inhaling dust and fibre from asbestos cement building products that had been manufactured and supplied by the defendants and were used by him in his work as a carpenter. The plaintiff’s exposure occurred primarily in Queensland and the defendants applied to transfer the proceeding to that State. The defendants disputed that the plaintiff’s lung cancer was caused by inhalation of asbestos dust and fibre, and informed the court that they intended to relitigate general causation issues which had previously been determined in another proceeding after a 29-day trial in the NSW Dust Diseases Tribunal involving evidence from eminent international and Australian expert witnesses. The defendants intended to call the same or similar witnesses to give evidence at the trial they said should occur in Queensland. To counter the defendants’ position, the plaintiff sought to rely on provisions of the Dust Diseases Tribunal Act 1989 (NSW) that allowed reliance on evidence from prior proceedings, and required leave to relitigate issues of a general nature already determined in other proceedings. In those circumstances, Mason P concluded that these provisions of the Dust Diseases Tribunal Act 1989 (NSW) were very relevant to the interests of justice because they offered the significant possibility that there would be substantial savings of time and cost if the proceeding remained in the NSW Dust Diseases Tribunal.
This proceeding is distinguished from Barry for the following reasons. First, this proceeding has been set down for trial by the parties on an estimate of five to seven days. That estimate takes into account all the issues in dispute, including the three separate exposures and liability in each jurisdiction. This is to be contrasted with the weeks-long trial largely related to general causation that had been envisaged in Barry if the proceeding had been transferred to Queensland.
Second, unlike in Barry, there has been no identification in this proceeding of how s 8 of the Dust Diseases Act may operate in respect of a fact in issue so as to result in significant efficiency or cost saving by shortening the trial. Subsections 8(1) and (2) create evidentiary presumptions in relation to causation and foreseeability. The provisions read:
(1)If it is established in a dust disease action that a person (the injured person)—
(a)suffers or suffered from a dust disease; and
(b)was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,
it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease.
(2)A person who, at a particular time, carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed, in the absence of proof to the contrary, to have known at the relevant time that exposure to asbestos dust could result in a dust disease.
The determination of causation and foreseeability do not usually require substantial trial time or resources in proceedings of this nature in this court, and in any case the above provisions only operate to create a rebuttable presumption. The third defendant did not identify any circumstance in which the application of these provisions would probably result in significant efficiencies and cost savings in this proceeding.
Subsections 8(3) and (4), which concern the rules of evidence and procedure, read:
(3)The following rules apply in a dust disease action before the District Court or SAET:
(a)the relevant court may admit evidence admitted in an earlier dust disease action against the same defendant (including in a dust disease action brought in a court or tribunal of the Commonwealth or another State or Territory);
(b)the relevant court may dispense with proof of any matter that appears to the court to be not seriously in dispute;
(c)the relevant court may invite a party to admit facts of a formal nature, or facts that are peripheral to the major issues in dispute, and may, if the party declines to do so, award the costs of proving those facts against the party.
(4)If—
(a)a finding of fact has been made in a dust disease action by a court of this State, or a court or tribunal of the Commonwealth or another State or Territory; and
(b)the finding is, in the District Court's or SAET's opinion, of relevance to an action before it under this Act,
the District Court or SAET (as the case may be) may admit the finding in evidence and indicate to the parties that it proposes to make a corresponding finding in the case presently before it unless the party who would be adversely affected satisfies the District Court or SAET (as the case may be) that such a finding is inappropriate to the circumstances of the present case.
Again, it is difficult to identify significant cost or time savings that might be achieved by operation of these provisions. The third defendant has not identified a general issue central to the outcome of the proceeding which has already been heard and determined in earlier SAET proceedings, such was the issue of causation of lung cancer in Barry. For example, Hay refers to exposure evidence previously given by witnesses relevant to the third defendant’s Whyalla steelworks, without explaining in any detail how that evidence might be relevant to determination of exposure in this case. It is not said that the evidence previously given deals with the same work area or job function performed by Roberts over the time he worked at the Whyalla steelworks, or the procedures and systems that applied to Roberts’ work there. It is also not said that the previous evidence has any relevance to Roberts’ alleged exposure at the Iron Knob scree plant or Whyalla pellet plant. Further, the extent of the evidence and the degree to which it would need to be supplemented or be subject to challenge is entirely unclear. While one party may seek to rely on either s 8(3) or (4) of the Dust Diseases Act to achieve a forensic advantage, an opposing party would no doubt seek to respond by pointing to other previous evidence, or different earlier findings of fact that lend more support to its case. This process will simply provide further relevant evidence without determining any contentious fact in issue.
There is no basis for concluding that the application of s 8 of the Dust Diseases Act would result in the real possibility of significant shortening of the trial and costs savings. Certainly there is no possibility of achieving anything approaching the substantial savings of time and cost that were found in Barry to be a very relevant consideration.
The balance of convenience to the parties and witnesses weighs in favour of Victoria being the appropriate forum. The plaintiffs, both of whom now reside in Victoria, will need to instruct their solicitors. The circumstances of the first plaintiff, Julia Roberts and Timothy Roberts are also particularly relevant. Julia Roberts and possibly Timothy Roberts will be called to give evidence at trial and may require considerable support to do so. The first plaintiff, who will also be a witness at trial, has moved from South Australia to live with and care for her mother. These circumstances may cause substantial difficulties for the plaintiffs during the trial, even taking into account the possibility of remote participation. Given their immediate relationships to Roberts, Julia Roberts and the first plaintiff will have a profound interest in the outcome of the proceeding which almost certainly extends beyond compensation that may be achieved. While there is some difference in the position of Roberts, were he alive and able to attend the trial, and the positions occupied by the plaintiffs as executors of his estate and Julia Roberts as his widow who depended on him for care and support, I conclude that they are entitled to be involved in the trial of the proceeding to the fullest extent possible. It would be more difficult for the first plaintiff and Julia Roberts to be fully involved in the trial if the proceeding was transferred. I conclude this factor weighs in favour of Victoria being the more appropriate forum.
There is no issue of convenience that weighs significantly in favour of South Australia being the appropriate forum. The third defendant did not indicate that the two unnamed former employees of the Whyalla steelworks would be unable to travel to Victoria to give evidence. In any event, the plaintiffs consent to their evidence being given remotely. On a simple count the number of the remaining witnesses weighs heavily in favour of Victoria.
Conclusion
Victoria is the appropriate forum for this proceeding. The third defendant’s application to transfer the proceeding to South Australia is dismissed. I will hear from the parties as to the appropriate form of orders, including as to costs.
SCHEDULE OF PARTIES
| ALISON JAME THOMSON AND JAMES STUART ROBERTS (AS THE EXECUTORS OF THE ESTATE OF THE LATE TERENCE JAMES ROBERTS) | Plaintiffs |
| MIDALCO PTY LIMITED | First Defendant |
| CSR LIMITED | Second Defendant |
| BHP GROUP LIMITED | Third Defendant |
| AMACA PTY LTD | Fourth Defendant |
| WALLABY GRIP LIMITED | Third Party |
| WALLABY GRIP (BAE) PTY LTD (in Liquidation) | Third Party |
| WALLABY GRIP (NSW) PTY LTD (in Liquidation) | Third Party |
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