Frodyma v Royal Adelaide Hospital

[2006] NSWDDT 11

Dust Diseases Tribunal

of New South Wales

CITATION:	Frodyma v Royal Adelaide Hospital [2006] NSWDDT 11
PARTIES:	Magery Louise Frodyma (Plaintiff) Royal Adelaide Hospital (Defendant)
MATTER NUMBER(S):	6088/06
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :- Application to stay proceedings - Service and Execution of Process Act (Cth) S 20 - Parties resident in South Australia - South Australian tort - Substantive law of South Australia - Limited life expectancy of plaintiff - District Court of South Australia available to receive plaintiff's evidence on short notice - Dust Diseases Act (SA) - Dust Diseases Tribunal Act (NSW) - Substantive and procedural provisions - Proceedings stayed until further order
LEGISLATION CITED:	Service and Execution of Process Act 1992 (Cth) Dust Diseases Tribunal Act 1989 Dust Diseases Act 2005 (SA)
CASES CITED:	John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Julia Farr Services Incorporated v Hayes (2003) 24 NSWCCR 138; Hearn v Commonwealth of Australia (2000) 21 NSWCCR 203; BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Pozniak v Smith (1982) 151 CLR 38.
DATES OF HEARING:	28/04/2006
DATE OF JUDGMENT:	04/28/2006
EX TEMPORE JUDGMENT DATE:	04/28/2006
LEGAL REPRESENTATIVES:	Mr G P F Rundle instructed by Church & Grace appeared for the applicant defendant Mr M J Joseph SC instructed by Alex Stuart & Associates appeared for the respondent plaintiff

JUDGMENT:

RULING

O'MEALLY P

1 This is an application by Royal Adelaide Hospital (the defendant) for an order that proceedings brought against it by Magery Louise Frodyma (the plaintiff) be stayed pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth).

2 On 13 April last, that is one day more than a fortnight ago, the plaintiff issued a statement of claim out of the Tribunal alleging that in the course of her employment by the defendant she was negligently and in breach of its statutory duty exposed to asbestos dust and fibre which she inhaled and as a consequence has developed malignant mesothelioma.

3 This afternoon, on her application, her claim was removed from the claims resolution process under Clause 18 1(a) of the Dust Diseases Tribunal Regulation. This was done on medical evidence establishing that her life expectancy is extremely short and her capacity to give evidence will soon be impaired to a significant extent.

4 In the time which has elapsed since the statement of claim was served, the defendant has not had the opportunity to determine what the issues will be at trial. It does, however, concede that the plaintiff was its employee and as a consequence was owed a duty of care. Investigations which it caused to be undertaken are not complete and it is not in a position now to inform me whether the plaintiff was exposed to asbestos. As a consequence, the issues to be determined at trial will be whether the plaintiff was exposed to asbestos and if so whether that exposure constituted a risk of foreseeable injury in respect of which, at the time of exposure, means were available to obviate or minimise that risk. If the plaintiff does establish that she was exposed to asbestos there would be no issue that that exposure caused or made a material contribution to her mesothelioma.

5 In seeking the order staying these proceedings the defendant says the District Court of South Australia is the appropriate court to determine the matters in issue between it and the plaintiff.

6 S 20(4) of the Service and Execution of Process Act sets forth matters a court is to take into account in determining whether the court of another State is the appropriate court for the determination of the proceedings. The matters set forth are inclusive and it therefore it follows that they are not exhaustive nor are they exclusive. S 20(4) is in these terms:

(4) The matters the court is to take into account in determining whether the court in another State is the appropriate court for the proceedings include:

(a) the place of residence of the parties and of the witnesses likely to be called in the proceedings; and

(b) the place where the subject matter of the proceeding is situated; and

(c) the financial circumstances of the parties, so far as the court is aware of them; and

(d) any agreement between the parties about the court or place in which the proceedings should be instituted; and

(e) the law that would be most appropriate to apply in the proceedings; and

(f) whether a related or similar proceeding has been commenced against the person served or another person; but do not include the fact that the proceeding was commenced in the place of issue.

7 So far as the first of those matters is concerned it may be said that both the plaintiff and the defendant are resident in the State of South Australia and that the bulk of the witnesses likely to be called in the proceeding also are resident in South Australia. If denial of liability, particularly on the issue of foreseeability of risk, is to be maintained it is conceivable that experts from outside South Australia might be called to give evidence.

8 The next matter concerns the place where the subject matter of the proceeding is situated. A reading of the statement of claim establishes that that place is Adelaide in the State of South Australia. There is no evidence concerning the financial circumstances of the parties, and that is not a matter which has been referred to in argument.

9 Agreement about the court or the place in which these proceedings should be instituted has not been adverted to. It is the case that the substantive law to be applied is the law of South Australia: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. If the proceedings are to remain in the Tribunal then the procedural law applicable will be that of New South Wales. No related or similar proceeding has been commenced against either of the parties nor anyone else so far as I am aware.

10 As noted, these matters are not exhaustive: Julia Farr Services Incorporated v Hayes (2003) 24 NSWCCR 138 at 165 [83].

11 Mr Joseph, of senior counsel for the plaintiff, submits that several other matters should be taken into account. These include the availability to both parties of s 25(3) and s 25B of the Dust Diseases Tribunal Act.

12 S 25(3) permits historical evidence and general medical evidence concerning dust exposure and dust diseases, which has been admitted in any proceedings before the Tribunal to be received in other proceedings, whether or not those proceedings were between the same parties.

13 S 25B prevents relitigation of issues of a general nature determined in proceedings in the Tribunal without leave, whether or not the proceedings were between the same parties. In respect of s 25B there seems to be a difference of opinion as to its character, that is whether it is procedural or substantive (see Hearn v Commonwealth of Australia (2000) 21 NSWCCR 203 at 210 [24]) but it is difficult to see in this case what previously decided issue or issues would be relied upon.

14 Further, uncharacteristically, Mr Joseph has bestowed praise on the Tribunal's capacity to deal effectively and efficiently with issues of fact and law arising in proceedings of this nature. This is not because of any particular ability in members of the Tribunal, but merely because of experience gained by them over a long period of time. It is true that at least one observer is of the view that the Tribunal has a reputation for efficiency and skill in discharging its functions (see BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 446 [104]; (2004) 2 DDCR 78 at 113 [104]). This is an opinion which, anecdotally, is not universally shared.

15 On 8 February 2006 the Dust Diseases Act 2005 (SA) was proclaimed. It contains both substantive and procedural provisions which apply to proceedings for damages in respect of diseases caused by exposure to asbestos. In some respects they are similar to provisions in the Dust Diseases Tribunal Act, but in others materially different.

16 S 8(1) of the South Australia Act provides that if a person suffers from a dust disease and was exposed to 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 exposure to asbestos dust caused or contributed to that disease. There is no equivalent or similar provision in the New South Wales Act.

17 S 8(3) of the South Australia Act is, in some measure, similar to s 25(3) of the Dust Diseases Tribunal Act, but the difference is that whereas s 25(3) of the New South Wales Act permits evidence to be admitted whether or not proceedings were between the same parties, s 8(3) of the South Australia Act operates where evidence was admitted against the same defendant.

18 S 8(4) permits a finding of fact made in a dust diseases action by a court in South Australia or of the Commonwealth or another State or Territory which is relevant to an action in the South Australian court to be admitted into evidence. There is no equivalent in the New South Wales Act.

19 I have been told that a computer search conducted this afternoon does not reveal that the defendant in this action has been sued either as a defendant or cross-defendant in the Tribunal. I am now informed by Mr Rundle of counsel for the defendant that his solicitor believes Royal Adelaide Hospital was joined as a cross-defendant by BI (Contracting) Pty Ltd following actions brought against it by Eileen Sylvia Strikwerda (DDT 7 of 2004 and 118 of 2004). The allegation in those cases, I am informed, was of exposure during the course of construction of Royal Adelaide Hospital, so that the circumstances of those cases are materially different from those of this.

20 Pozniak v Smith (1982) 151 CLR 38 was a case in which an application was made under s 18 of the Judiciary Act (Cth) to remit an action commenced between citizens of different states to the Supreme Court of Queensland on behalf of one party, and to the Supreme Court of New South Wales on behalf of another. Pozniak was referred to in Schultz (supra) where Gummow J at 445 [100] quoted from it. In Pozniak Gibbs CJ Wilson and Brennan JJ said at 47:

The only safe course, in a case where the relevant law in the competing jurisdictions is materially different in its effect on the rights of the parties, is to remit to the state whose law has given rise to the cause of action.

21 S 4 of the Dust Diseases Act (SA) recites that its object is to ensure that residents of South Australia who claim rights of action for, or in relation to dust diseases have access to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind. S 6 provides that such cases commenced in another South Australian court will on application be transferred to the District Court. By s 5 the District Court is required to give directions necessary to ensure that those cases have priority over less urgent ones and are dealt with as expeditiously as the proper administration of justice allows.

22 The affidavit in support of this application affirmed on 26 April 2006 by Mr Andersen, the defendant's solicitor, contains as annexure “H” a print out of a number of e-mails passing between himself and Ms Dianne Hoban, the Deputy Registrar of the District Court of South Australia. The effect of those e-mails is that the District Court of South Australia would be able to provide a judge to receive the evidence of the plaintiff on short notice. For my part, I should say that I am available to receive the plaintiff's evidence tomorrow or on Sunday.

23 It should be noted that in one case in which an application was successfully made to stay proceedings brought in the Tribunal by a resident of South Australia the hearing of which concluded on a Friday evening, the plaintiff's evidence was received on the Monday following in an action commenced that day in the District Court of South Australia.

24 Notwithstanding Mr Joseph's submission to the contrary, it would be inappropriate for this court to presume it is better able expeditiously and efficiently to deal with the plaintiff’s claim, than is the District Court of South Australia. To do so would offend the dignity and impugn standing of the District Court of South Australia. Additionally, the cited provisions of the Dust Diseases Act (SA) and the remarks of Gibbs CJ, Wilson and Brennan JJ in Pozniak (supra) make it appropriate that these proceedings be stayed.

25 It is the case that the plaintiff's health is in a parlous condition, and as noted earlier, her capacity to give evidence is diminishing. In these circumstances I think the appropriate course is to stay the proceedings pending further order of this court. By that means if, as is not expected, the District Court of South Australia is unable to receive the evidence of the plaintiff next week further application may be made to the Tribunal.

26 In those circumstances, at this stage, no order as to costs will be made. Before I adjourn I should remark that I have since been informed that there are three cases in the Tribunal in which the defendant is a cross-defendant. None of those cross-claims has commenced.

27 The order is: the proceedings brought by the plaintiff are stayed until further order. Liberty to apply.

Mr M J Joseph, SC instructed by Alex Stuart & Associates appeared for the defendant Plaintiff

Mr G P F Rundle instructed by Church & Grace appeared for the applicant Defendant

I certify that the previous 27 paragraphs

Are the reasons for Judgment of His Honour

Judge O’Meally

Associate