Griffin v Allianz Australia Insurance Limited - [2010] SASC 286

Supreme Court of South Australia
(Civil)
GRIFFIN v ALLIANZ AUSTRALIA INSURANCE LIMITED
[2010] SASC 286
Judgment of The Honourable Justice Kourakis (ex tempore)
17 September 2010
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION
Plaintiff sought damages for personal injury suffered in course of employment. Plaintiff diagnosed with mesothelioma. Plaintiff brought action in District Court of South Australia. To have the matter determined expeditiously plaintiff then sought to have action transferred to Supreme Court of South Australia to be further transferred to the Supreme Court of New South Wales and then to the New South Wales Dust Diseases Tribunal. Whether action could be transferred.
Held: Application to remove to Supreme Court of South Australia and consequential application to transfer proceedings to New South Wales refused - Supreme Court of New South Wales cannot determine proceeding - must transfer proceeding to Dust Diseases Tribunal pursuant to s 12 Dust Diseases Tribunal Act 1989 (NSW) - administrative act pursuant to s 12 not a determination within the meaning of sub-para (iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987-no power to transfer the proceedings.
Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) s 5; District Court Act 1991 (SA) s 24; Dust Diseases Tribunal Act 1989 (NSW) s 10, s 12, referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"determined"

GRIFFIN v ALLIANZ AUSTRALIA INSURANCE LIMITED
[2010] SASC 286

KOURAKIS J: These proceedings are brought before me by summons filed and served this day. The plaintiff, Mr Griffin, is also a plaintiff in District Court proceedings in which he seeks damages for personal injury suffered in the course of employment. Mr Griffin was employed by the Adelaide Steamship Company as an apprentice electrician; in that employment he was exposed to asbestos. The defendant is an insurer who carries the responsibility to meet such liability as the Adelaide Steamship Company may have for that injury.
In February of this year the plaintiff first experienced symptoms of asbestos disease. In March 2010 he was temporarily residing in Adelaide and was caring for his elderly father. His father has since passed away.
Whilst in Adelaide Mr Griffin was diagnosed with mesothelioma. I am told that mesothelioma can generally be expected to result in death within two years of its onset. He contacted solicitors. They gave notice of his claim on 1 June 2010. A statement of claim was filed in the District Court on 10 June. Both the solicitors acting for Mr Griffin and the solicitors acting for the defendant proceeded with commendable speed to prepare the proceedings for final determination.
On 28 June this year Professor Fox, an oncologist engaged by the defendant, provided a report. In that report, he opined that Mr Griffin’s life expectancy could be measured in a matter of weeks or months.
Mr Griffin’s solicitors also obtained an independent oncological assessment from Dr Vaughan. They first heard in the course of a telephone conversation with Dr Vaughan, that the plaintiff’s life expectancy was indeed very short. They received Dr Vaughan’s written report on 31 August 2010. In that report Dr Vaughan estimated Mr Griffin’s life expectancy to be just a matter of several months but she qualified that opinion by warning that the disease could progress even more rapidly. A handwritten note sent with the report informed the solicitors that Mr Griffin’s condition was deteriorating rapidly.
On receiving Dr Vaughan’s report the plaintiff’s solicitors sought an urgent hearing date in the District Court. A listing conference was convened on 1 September 2010. There were several attendances in the District Court thereafter in which attempts were made to allocate a Judge to hear the matter. As of this time no Judge has been allocated. The District Court has informed the parties that a Master of that court can travel to Queensland next week to take evidence from Mr Griffin. It is proposed to videotape that testimony for the purpose of its subsequent admission before the Judge who is ultimately allocated to hear the matter.
If the proceedings are not heard and determined before the plaintiff dies, the award of damages will be substantially reduced. In particular an award of damages made after Mr Griffin’s death could not include any sum for future economic loss.
A further unfortunate consequence of a posthumous judgment would be of course, that if the claim were to succeed Mr Griffin would not hear the judgment compensating him for the wrong he has suffered.
Concerned about the delay in the District Court, the plaintiff’s solicitors have contacted officers of the Dust Diseases Tribunal in New South Wales. A member of that tribunal is available to travel to Queensland to take Mr Griffin’s evidence next week. That member would then continue to hear and determine the proceeding expeditiously.
I have, a short while ago, inquired of the Registrar of the District Court how quickly a Judge might be appointed to hear the proceedings after the Master has taken Mr Griffin’s testimony on commission. I understand that it is unlikely that a Judge would commence to hear the matter before October.
I accept that it is not possible on the state of the material before me to determine with a great degree of accuracy whether or not the proceedings would be heard and determined before Mr Griffin’s death if they were transferred to New South Wales. However, I am satisfied that there is a significantly greater prospect of the proceedings being heard and determined by the Dust Diseases Tribunal before Mr Griffin dies than there is that the proceedings will be heard and determined by the District Court before that happens.
Mr Griffin resides in Queensland. A number of the witnesses who would be called in his case also reside in Queensland; those witnesses would testify as to their observations of the symptoms suffered by Mr Griffin.
There are also experts, who reside in Queensland, who would be called by both parties. Wherever the proceedings are heard the cost of the taking of their evidence can be reduced substantially by the use of video links.
Some witnesses who are likely to be called reside in Adelaide. Some are lay witnesses; I am told that they are probably witnesses who worked with Mr Griffin. I suspect that, if that is the scope of their evidence, their evidence will also be able to be taken by video link.
The most substantial expense, or difficulty, the defendant would face if the proceedings were transferred to New South Wales is the cost of transporting legal representatives to New South Wales or, alternatively, engaging different counsel in New South Wales. That would be, I accept, a significant expense. The latter course probably being more expensive than the former. However, I am satisfied that with a cooperative approach to case management, and with video links, the disruption and cost caused by transferring the proceedings would not be great.
Balancing what are in effect incommensurables, that is the loss and the prejudice that the plaintiff would suffer if the proceedings are not transferred against the cost to the defendant if they are, I have no hesitation in holding that, on balance, the interests of justice would be best served by a transfer of these proceedings to New South Wales so that they may be heard and determined by the Dust Diseases Tribunal.
My view is strengthened by the assurance given by Mr Griffin’s counsel that his legal representatives will seriously consider joining with the defendant in asking the Dust Diseases Tribunal to sit in Adelaide to take evidence from witnesses who reside here.
However, even though the interests of justice lie with a transfer, I cannot order that transfer unless the preconditions to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) (the Act) are satisfied.
Section 5(2)(b)(iii) of the Act provides that this Court may transfer the relevant proceedings to be determined by the Supreme Court of another State or Territory if it is in the interests of justice to do so.
The relevant proceedings are the proceedings pending in this Court. If it was within the power of this Court to transfer the District Court proceedings to the Supreme Court of New South Wales I would exercise my power under s 8 of the Act and s 24 of the District Court Act 1991 (SA) to transfer the District Court proceedings into this Court for that purpose.
However, I am satisfied that I have no power to transfer the proceedings to the Supreme Court of New South Wales. The relevant proceedings being, as I have just said, the claim for personal injuries in the District Court, the question for me pursuant to sub-para (iii) is whether it is in the interests of justice to have those proceedings, namely, the personal injury proceedings, determined by the Supreme Court of New South Wales. It is not possible for the Supreme Court of New South Wales to determine the proceedings because, pursuant to s 10 of the Dust Diseases Tribunal Act 1989 (NSW), the Dust Diseases Tribunal has exclusive jurisdiction over dust disease claims, like the plaintiff’s claim in the District Court. I therefore can not possibly be satisfied that it is in the interests of justice to transfer the relevant proceedings to the Supreme Court of New South Wales.
I accept that a proceeding on a dust disease matter, brought or pending, in the Supreme Court of New South Wales is not a nullity notwithstanding the exclusive jurisdiction enjoyed by the Dust Diseases Tribunal. However that legal circumstance is not sufficient to allow an exercise of the power in s 5(2)(b)(iii) of the Act. The proceedings pending in the Supreme Court remain valid proceedings only for the purposes of a transfer to the Dust Diseases Tribunal. Pursuant to s 12 of the Dust Diseases Tribunal Act 1989 (NSW) the Registrar of the Supreme Court must transfer to the Dust Diseases Tribunal any proceeding within its exclusive jurisdiction pending in the Supreme Court of New South Wales. It follows that were I to transfer the District Court proceedings to the Supreme Court of New South Wales it would not determine those proceedings; rather, the Registrar of the Supreme Court of New South Wales would perform the administrative act of transferring the file to the Dust Diseases Tribunal.
Mr McIntyre SC has submitted that I should construe the word “determined” in sub-para (iii) of s 5(2)(b) of the Act to include a determination to transfer the proceedings from the Supreme Court of New South Wales to the Dust Diseases Tribunal. As much as the merits of this particular application might favour such a broad construction, I find myself constrained by the plain terms of the section to reject that submission. In particular, in my view, the word “determined” cannot be viewed in the abstract. It is the relevant proceeding which must be determined in a way which better suits the interests of justice. The relevant proceeding is the personal injuries proceeding. The Supreme Court of New South Wales will never determine that proceeding. Moreover, the administrative act of the Registrar pursuant to s 12 of the Dust Diseases Tribunal Act 1989 (NSW) is not, in my view, a determination within the meaning of that term in sub-para (iii) of s 5(2)(b) of the Act.
For these reasons I refuse the applications to remove into this Court the relevant District Court proceedings and the consequential application to transfer them to New South Wales. I dismiss the summons before me.
Postscript: After delivering the above judgment arrangements were made to have a Judge of this Court urgently hear the proceedings. However whilst those arrangements were being made the parties settled the proceedings. I recalled my order, transferred the proceedings to this Court and entered judgment in accordance with the terms of that settlement.