Evans Deakin Industries Pty Ltd t/as EDI Rail v Amaca Pty Limited (Formerly James Hardie and Coy Pty Ltd)

[2020] NSWSC 149

Supreme Court

New South Wales

Medium Neutral Citation:	Evans Deakin Industries Pty Ltd t/as EDI RAIL v AMACA Pty Limited (Formerly James Hardie & Coy Pty Ltd) [2020] NSWSC 149
Hearing dates:	8 August 2019
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1)   Summons dismissed;  (2)   The plaintiff shall pay the defendant’s costs of and incidental to the proceedings, as agreed or assessed.
Catchwords:	PRACTICE and PROCEDURE – CROSS-VESTING – principles discussed – factual analysis and determination of “interests of justice” where possibility of multiplicity of proceedings.
Legislation Cited:	Jurisdiction of Court (Cross-vesting) Act 1987 (NSW), s 5(2) and s 8 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Amaca Pty Limited v Cecilia Morrison [2013] NSWSC 1706 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 535 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 Skandar (aka Makari) v BSM Group Pty Ltd (as trustee for the BSM Discretionary Trust) [2017] NSWSC 610 Wallaby Grip Limited v Maclean [2017] NSWSC 246
Category:	Principal judgment
Parties:	Evans Deakin Industries Pty Ltd t/as EDI RAIL (Plaintiff) AMACA Pty Limited (Formerly James Hardie & Coy Pty Ltd) (under External Administration) (Defendant)
Representation:	Counsel: N Broadbent/S Grey (Plaintiff) J Sheller SC (Defendant)   Solicitors: BT Lawyers (Plaintiff) Holman Webb Lawyers (Defendant)
File Number(s):	2019/166694

Judgment

1. HIS HONOUR: The plaintiff, Evans Deakin Industries Pty Ltd (hereinafter “Evans Deakin”) seeks orders pursuant to s 8 of the Jurisdiction of Court (Cross-vesting) Act 1987 (NSW) (hereinafter “the Act”) that proceedings commenced in the Dust Diseases Tribunal of New South Wales (hereinafter “the Tribunal”) by AMACA Pty Ltd (the defendant) (hereinafter “AMACA”) against Evans Deakin (formerly EDI) are removed from the Tribunal and transferred to the Court and, from the Court, be transferred to the Supreme Court of Queensland.

2. The nature of the proceedings is somewhat complicated and the intertwining of proceedings needs to be outlined in order to understand the issues in the application. Before dealing with the facts, it is necessary to deal with the principles to be applied on a transfer of this kind.

Principles to be applied

3. The most relevant provisions of the Act are s 5(2) and s 8 and they are in the following terms:

“5    TRANSFER OF PROCEEDINGS

(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:

(i)    the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court,

(ii)    having regard to:

(A)    whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory,

(B)    the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C)    the interests of justice,

it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or

(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.”

“8    ORDERS BY SUPREME COURT

(1)    Where:

(a)    a proceeding (in this subsection referred to as the ‘relevant proceeding’) is pending in:

(i)    a court, other than the Supreme Court, of the State, or

(ii)    a tribunal established by or under an Act, and

(b)    it appears to the Supreme Court that:

(i)    the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court, or

(ii)    an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court,

the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court.

(2)    Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court.

(3)    Where a proceeding is removed to the Supreme Court in accordance with an order made under subsection (1), the Supreme Court may, if the Supreme Court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed.”

4. The principles to be applied were dealt with by the Court, as presently constituted, in Skandar (aka Makari) v BSM Group Pty Ltd (as trustee for the BSM Discretionary Trust) [2017] NSWSC 610, in which I set out the following principles:

“[19]    The principles to be applied in relation to the operation of the Act are well known and well established: see BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61. The plurality judgment (Gleeson CJ, McHugh and Heydon JJ) at [14] sets out the principles in the following way:

‘[14]    In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court “shall transfer” the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.’

[20]   Also instructive on the question is the passage at [77] of BHP Billiton, supra, in the reasons for judgment of Gummow J, in which his Honour discusses, amongst other issues, the terms ‘the interests of justice’ and ‘otherwise in the interests of justice’.

[21]    As has been expressed on a number of occasions and in various decisions, the scheme embodied in the Act and its counterparts in the Commonwealth and other States does away with the previous requirements of the common law that hindered the efficient resolution of justiciable controversies between parties and imposed a relatively heavy onus on persons seeking a transfer from the court in which proceedings were initiated.

[22]    Now, rather than requiring a moving party to show that the court is an inconvenient forum, it is necessary only to show that the tribunal to which the proceedings are to be transferred is a ‘more appropriate’ tribunal or that the proceedings are more appropriately dealt with in the transferee tribunal as distinct from continuing in the court in which they have been commenced.”

5. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61, the High Court outlined a number of relevant factors, which are capable of being summarised in the following way:

1. The location of the tort;

2. The residence of the parties, or, in the case of a corporation, where it carries on its business;

3. The convenience of the parties or witnesses;

4. The law governing the proceedings, which, necessarily, relates to criterion (1) above;

5. The experience of a court to provide an efficient and speedy trial; and

6. The condition of the parties, relevantly, in personal injury cases such as if the parties’ life expectancy requires speedy resolution.

6. The foregoing list is not exhaustive and the factors will, necessarily, vary from proceeding to proceeding, but all factors going to where “the interest of justice” lies are relevant to the consideration of transfer.

7. While the application before the Court is an application under s 8 of the Act, necessarily, it involves a consideration of the issues to be determined under s 5(2) of the Act. The provisions of s 8 of the Act merely allow the Court to remove the proceedings into its jurisdiction before the Tribunal for the purpose of considering whether the proceeding should be transferred to the Supreme Court of another State.

8. Cases considering the provisions of the Act set out principles, but the application of the Act in other proceedings, while informative, must be considered carefully, because each case depends on the individual facts and circumstances pertaining thereto. It is, as stated, the principles and factors already outlined, which must be considered in order to determine the most appropriate place according to the interests of justice.

9. It must be said that the most important issue, ordinarily, is the lex loci delicti (in ordinary parlance, the place of the tort). Ordinarily, when one disregards, as one must, issues of inconvenient forums, which previously applied to transfers, and one regards the interests of justice, the Courts in Queensland are more appropriate in dealing with Queensland law than are the Courts in New South Wales.

10. The location of the tort is, in my view, the starting point at which a determination under s 5 of the Act must begin. The jurisdiction within which the alleged tort occurred is the jurisdiction in which the matter ought preferably be determined

11. Other things being equal, rather than a New South Wales judge applying the law of Queensland, it would be preferable for a Queensland judge to apply the law of Queensland: Wallaby Grip Limited v Maclean [2017] NSWSC 246; Skandar, supra.

The plaintiff’s submissions

12. As the plaintiff itself summarises, the broad basis upon which it submits that it is “in the interests of justice” that the contribution proceedings be transferred to the Supreme Court of Queensland are:

1. The laws of Queensland apply as the tort was committed in Queensland;

2. All anticipated witnesses reside in Queensland;

3. There is no material connection to New South Wales;

4. There is no exclusive jurisdiction of the Tribunal; and

5. There is a statutory requirement to cross-vest in these circumstances.

Facts

13. It is necessary to set out, as originally foreshadowed, the background to the proceedings and the nature of the matter that is to be cross-vested, should the Court accept the application of the plaintiff. A Statement of Claim, which is before the Court, was filed in the Tribunal on 2 November 2017, under which the injured person brought proceedings for damages against the present defendant, AMACA.

14. The injured party, Mr Finnigan, had been employed by Evans Deakin between approximately 1970 and 1988. Mr Finnigan has contracted mesothelioma and he claims that he has contracted it as a result of work with a number of employers, one of whom is Evans Deakin.

15. Evans Deakin employed Mr Finnigan as a steelworker and rigger at the Queensland Alumina Limited Refinery and the Gladstone Power Station in Gladstone. Each of those places of employment is in Queensland.

16. Mr Finnigan claimed to have worked, at those two sites, in close proximity to laggers and others, who were applying, handling, cutting, mixing and generally working with asbestos manufactured and supplied by AMACA, which Mr Finnigan inhaled. It is notorious and trite that the slightest of contact with asbestos, sometimes with microscopic particles, may cause injury.

17. The Statement of Claim in the Tribunal claims damages against AMACA, which, in turn, filed Cross-Claims against Downer EDI Rail Pty Ltd (otherwise referred to as EDI), CSR Limited, Wallaby Grip (BAE) Pty Ltd (in liquidation) and Wallaby Grip (NSW) Pty Ltd (in liquidation). Evans Deakin was not a party to the principal proceedings.

18. Consent judgment issued in the Tribunal on 7 March 2018, under which the Tribunal ordered verdict and judgment for Mr Finnigan against AMACA in the sum of $420,000, plus costs as agreed at $30,000. On 13 March 2018, the Tribunal further ordered:

1. CSR Limited, the second cross-defendant, to contribute $136,500 towards the plaintiff’s damages and $9,750 towards the plaintiff’s costs.

2. Wallaby Grip (BAE) Pty Ltd, the third cross-defendant and Wallaby Grip (NSW) Pty Ltd, the fourth cross-defendant, to contribute $147,000 towards the plaintiff’s damages and $10,500 towards the plaintiff’s costs.

3. [Note: the reference in the above orders to “plaintiff” is a reference to Mr Finnigan.]

19. On 3 August 2018, AMACA sought, by Statement of Claim filed in the Tribunal, contribution and/or indemnity from Evans Deakin as an alleged joint tortfeasor. The basis of that request is irrelevant for present purposes.

20. Evans Deakin denied liability and filed a Defence, to that effect, on 8 April 2019. The Defence asserts the following:

1. Mr Finnigan’s work did not require him to work with products containing asbestos; or to work in the vicinity of laggers, who were applying products containing asbestos;

2. Mr Finnigan did not, in fact, perform any work process at the Gladstone Power Station or at Queensland Alumina Limited Refinery, which involved asbestos handling or utilising any article comprised of, containing or contaminated with asbestos;

3. Mr Finnigan was not working continuously at the Gladstone Power Station or Queensland Alumina Limited Refinery and only worked there intermittently;

4. Evans Deakin did not own or occupy the Gladstone Power Station or Queensland Alumina Limited Refinery, nor did it specify any products to be installed or have any power to control any safety systems in place at the site;

5. The Gladstone Power Station and Queensland Alumina Limited Refinery were construction sites, at the time alleged by Mr Finnigan at a time at which he was working there, and were not completed shops or factories; and

6. Any exposure was minimal, caused by third parties, which were the owners and occupiers of either or both Gladstone Power Station and/or Queensland Alumina Limited Refinery.

21. The application for transfer relates only to the contribution proceedings relating to Evans Deakin and no other part of the substantive proceedings.

Submissions and considerations

22. Evans Deakin submits that the primary issue for the Court, in this transfer application, which the Court accepts as accurate, is whether it is “in the interests of justice” for the proceedings to be determined by the Supreme Court of Queensland (or any other court to which the Queensland Supreme Court might transfer the matter). The submission relies upon the statements of principle in the High Court in BHP Billiton Ltd v Schultz, supra, and submits that the Supreme Court is required to determine the transfer application by identifying a more appropriate forum, without any specific emphasis in favour of the choice of forum made by the plaintiff in the substantive proceedings. It is unnecessary to repeat the other issues submitted by Evans Deakin relating to the history of the principles adumbrated by the majority in BHP Billiton Ltd v Schultz, supra.

23. I accept that the term “interests of justice” necessarily includes justice to all parties. Further, it is incompatible with notions of justice and equality before the law to apply the Act in a way that favours one party to litigation over others.

24. Further, Evans Deakin relies upon the comments of Spigelman CJ in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 361 [7]; [2000] NSWCA 535, which is in the following terms:

“[7]    To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross-vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of ‘appropriate court’, although other factors may need to be assessed in the process of determining where the interests of justice lie.”

25. Generally, the other matters to which reference has been made have been dealt with in the general statements of principle earlier in these reasons for judgment. Otherwise, Evans Deakin relies upon the fact that the alleged tortious conduct, and therefore the associated contribution claim, arises out of events that occurred exclusively in Queensland.

26. Both Evans Deakin and AMACA carried on activities in Queensland; the solicitors for each are either based in Brisbane or have offices in Brisbane; the witnesses, or the major witnesses, each reside in Queensland at various places, none of which seemed to be Brisbane and each of which are in regional Queensland.

27. Over and above all of the foregoing, it is accepted by the Court that the governing law as to the tort allegedly committed by Evans Deakin is the law of Queensland. As a consequence, and as earlier recited, the starting point for any assessment of whether it is in the interests of justice to transfer the proceedings to Queensland must be that it is appropriate for the Queensland Supreme Court to deal with Queensland law, whether or not it is similar or the same as that which applies in New South Wales.

28. As can be gleaned from the foregoing, there have been two contribution assessments already. The contribution from Evans Deakin is to be assessed, within the context of the entire proceedings. The contribution assessment determinations that have already been issued by the Tribunal, whether by consent or otherwise, are not binding on Evans Deakin. Further, Evans Deakin makes it clear that they do not agree to be bound by the earlier assessments.

29. The issue of apportionment depends on the appropriate share in the responsibility for the damage and involves a comparison of culpability, being the respective degree of departure from standards of care and the relative importance of the acts of the parties, and the departure from that standard, in causing the damage. In that respect the test is not dissimilar to that utilised for the purposes of contributory negligence: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; [1985] HCA 34 at [10]. As Evans Deakin submits, damages are matters of substantive law and concern “laws that bear upon the existence, extent or enforceability of remedies, rights and obligations”: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [102].

30. Further, Evans Deakin submits that there is no compelling reason for the matter to remain in the Tribunal and cites the judgment of Harrison J in Amaca Pty Limited v Cecilia Morrison [2013] NSWSC 1706 at [17]. There can be little doubt that the Queensland Supreme Court is at least as capable of dealing with the issue of contribution as the Tribunal, notwithstanding the specialist knowledge of the Tribunal when it comes to dust diseases, asbestosis and mesothelioma.

25. Further, as the submissions of Evans Deakin point out, whatever outcome is determined as the contribution; it will not and cannot affect the award of damages to the plaintiff, which has already been received. As a consequence of the foregoing, the submissions of the plaintiff, Evans Deakin, is that the Queensland Supreme Court is the more appropriate forum for the hearing of the issues involving the liability of Evans Deakin and the effect of the allegedly tortious conduct that occurred in Queensland.

26. I have not dealt with the submissions of AMACA in depth. Essentially, as it should be, there is agreement between the parties to these proceedings as to the principles to be applied. It is the assessment of the factual context upon which the parties differ.

27. As is pointed out in AMACA’s submissions the Contributions Assessment Determination, thus far, has determined contribution of AMACA to be 32.5%; Wallaby Grip (both BAE and NSW) at 35% and CSR at 32.5%. Each of those assessed parties have paid their respective contributions directly to Mr Finnigan in the principal proceedings.

28. On 12 February 2019, AMACA filed and served its Statement of Claim upon Evans Deakin and seeks a 35% contribution from them. For relevant purposes, Evans Deakin is and represents EDI. If AMACA is successful, and given that the contribution of CSR has not yet been finalised, there will need to be a readjustment of the contributions of each of AMACA, Wallaby Grip and CSR.

29. AMACA submit, correctly, that there are two factors to which the submissions of Evans Deakin do not refer. The first matter, to which I will refer, is a relatively technical one, in that it submits that Evans Deakin has failed to comply with the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter “UCPR”), and, in particular, r 44.5, which requires an application to be brought at the earliest opportunity in the circumstances that the Court now has before it.

30. The more substantive issue relates to the associated parties which are not the subject of any application by Evans Deakin, namely, Wallaby Grip (BAE and NSW), and CSR.

31. In short, there are two possibilities, if the matter proceeds in the Queensland Supreme Court. First, the Queensland Supreme Court could find that Evans Deakin and/or EDI were not liable. Alternatively, the Queensland Supreme Court could find they were liable.

32. If the latter finding is made, some contribution of some kind will need to be assessed by the Queensland Supreme Court. Once that occurs, the matter would need to come back to the Tribunal to adjust the contribution of each of the other joint tortfeasors.

33. In other words, the remainder of the entire proceedings is not confined to the determination of the liability of Evans Deakin, but concerns an adjustment of the contribution of parties, which will not be before the Queensland Supreme Court and for which the Queensland Supreme Court would not be the appropriate forum and would not have jurisdiction.

34. I have little or no doubt that if the issue remaining in the entire justiciable controversy were confined to the liability and contribution of Evans Deakin and/or EDI, then the appropriate forum would be the Queensland Supreme Court. However, assuming, for present purposes, that some liability for EDI will be determined, that determination would only be a first step in the re-adjustment of the contributions of each of the other joint tortfeasors.

35. Given the history of the matter and the fact that the other joint tortfeasors are parties to the Tribunal proceedings, but not parties to the proceedings sought to be transferred to the Queensland Supreme Court, the Court, as presently constituted, is required to balance the issues associated with allowing the Queensland Supreme Court its prima facie position as the preferential court to determine Queensland law, with the circumstance that there would then need to be subsequent proceedings in the Tribunal to give effect to the determination of the Queensland Supreme Court.

36. Further, the question of contribution of EDI, if it were to have some liability requires an understanding of the relative significance and “culpability” of each of the respective joint tortfeasors. In other words, the determination of contribution is not a matter confined to the liability of EDI, but a matter that measures the relative liability and/or culpability of EDI as against the other joint tortfeasors and their respective effects on Mr Finnigan.

37. It seems to be not in the interests of justice to bifurcate the proceedings in the manner that would necessarily follow from transferring this aspect of the proceedings to the Queensland Supreme Court. A major purpose, if not the primary purpose, of the cross vesting scheme, implemented by the Commonwealth and each of the States, is that there should not be a multiplicity of proceedings.

38. A multiplicity of proceedings is not only inefficient, it is liable to create injustice and inconsistency in approach in the one justiciable controversy.

39. Ultimately, in those circumstances, while the balance is a fine one, it seems to me that the prospect of a multiplicity of proceedings outweighs in terms of injustice the desire to have the Queensland Supreme Court determine issues of liability under Queensland law. There is, after all, only one common law of Australia.

40. In those circumstances, the Court makes the following orders:

1. Summons dismissed;

2. The plaintiff shall pay the defendant’s costs of and incidental to the proceedings, as agreed or assessed.

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Decision last updated: 28 February 2020