Hearn v Commonwealth - [2000] NSWDDT 12

CITATION: Hearn v Commonwealth [2000] NSWDDT 12

PARTIES: Francis C Hearn
v

Commonwealth of Australia

TITLE OF COURT: Dust Diseases Tribunal of New South Wales

JURISDICTION: Original

MATTER NO/S: NSWDDT 256 of 2000

DELIVERED ON: 6 December 2000

DELIVERED AT: Sydney

HEARING DATES: 5, 6 December 2000

JUDGMENT OF: O’Meally J

NUMBER OF PARAGRAPHS: 44

CATCHWORDS: Dust Diseases - Jurisdiction - stay of proceedings - forum non conveniens - regular invocation of jurisdiction - connecting factors slight - one of two defendants submitted to jurisdiction

Dust Diseases - Jurisdiction - stay of proceedings - forum non conveniens - ability of other forum to hear urgent cases expeditiously - Statutory prodedurs and Tribunal practices minimise delay and costs - proceedings not vexatious or oppressive

Dust Diseases - Jurisdiction - stay of proceedings – Service and Execution of Process Act 1992 (Cth) - s 20(3) - court may order stay - power to stay discretionary

Dust Diseases - Jurisdiction - stay of proceedings – Service and Execution of Process Act 1992 (Cth) - s 20(4) - factors to be considered - one common law for Australia - interests of parties - interests of justice - litigation in Dust Diseases Tribunal quicker and cheaper than to recommence in alternate jurisdiction - proceedings not stayed

REPRESENTATION
PLAINTIFF
A J Katzman SC instructed by Alex Stuart & Associates

DEFENDANTS
J F Burn instructed by Australian Government Solicitor for the first defendant
Malcolm Holmes QC instructed by Phillips Fox for the second defendant

Dust Diseases Tribunal of New South Wales

Matter No 256 of 2000

Francis C Hearn

Commonwealth of Australia

and

National Australia Bank Limited

6 December 2000

O’MEALLY J
JUDGMENT

This is an application by National Australia Bank Limited that proceedings commenced against it and the Commonwealth of Australia be stayed permanently. The application is brought on two bases. Firstly, pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) (SEP Act) and secondly, and in the alternative, under Pt 11 r 8(1)(h) of the Supreme Court Rules, which have been adopted to apply in the Tribunal. Though National Australia Bank Limited is the applicant I shall refer to it and to the other parties according to the character they bear in the proceedings. National Australia Bank Limited is the second defendant.
The plaintiff, Francis Charles Hearn, is a resident of Adelaide in the State of South Australia. On 2 November 2000 he issued a Statement of Claim alleging that in the course of his employment by the first defendant in premises leased to it by the second defendant he was negligently exposed to asbestos dust and fibre as a result of which he has contracted malignant mesothelioma. Each of the negligent acts and omissions is alleged to have occurred in the State of South Australia. In addition the plaintiff alleges against each defendant breaches of s 124(1) of the Health Act 1935 (SA).
The second defendant submits that the proceedings should be stayed under s 20 of the SEP Act on the basis that the Supreme Court of South Australia is the appropriate court for the determination of the plaintiff’s claim, and insofar as the application is brought under pt 11 r8, says that the Dust Diseases Tribunal of New South Wales is a clearly inappropriate forum for the determination of the claim.
It should be noted that the first defendant, the Commonwealth of Australia, takes a neutral attitude on the application of the second defendant. It has filed an appearance and a defence and has informed the plaintiff’s solicitors that it will rely on its standard list of discovered documents in Gallard v The Commonwealth & Ors (DDT 213 of 1998). This is a procedure available in the Tribunal by reason of s 25A of the Dust Diseases Tribunal Act.
The second defendant is incorporated in the State of Victoria, though conducts business and, at all relevant times, conducted business in the State of New South Wales, indeed in every part of the Commonwealth of Australia.
I think it convenient first to deal with the application on forum non conveniens grounds.
It is conceded that the plaintiff has regularly invoked the jurisdiction of the Tribunal and that it has jurisdiction over both the subject matter of the proceedings and the defendants.
Part 11 Rule 8 of the Supreme Court Rules provides:
8(1) The Court may, on application made by a defendant to originating process on notice of motion filed within the time fixed by subrule (2), by order
…
(h) decline in its discretion to exercise its jurisdiction in the proceedings;
The test to be applied in determining whether proceedings should be stayed on grounds of the convenience of forum were enunciated for Australia in Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538. At 554 Mason, CJ, Deane, Dawson and Gaudron JJ said:
First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised “with great care” or “extreme caution.”
In Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Deane J said at 247:
On that approach, “oppressive” should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment.
It is submitted for the first defendant that continuation of the proceedings would be oppressive or vexatious in the sense referred to by Deane J in Oceanic Sun. Moreover, it is submitted that the connecting factors with New South Wales are so slight as to be non existent. The only connecting factor with New South Wales is said to be that the first defendant carried on business in New South Wales, but otherwise all the connecting factors are with the State of South Australia.
The plaintiff submits that there are more connecting factors than the one conceded by the first defendant. He also points to the attitude of the first defendant, the Commonwealth, as taking no part in the application brought by the second defendant. He says that the position of the Commonwealth on this application is identical to the position of CSR Limited in Goliath Portland Cement Co Ltd v Bengtel & Anor (1994) 33 NSWLR 414; (1994) 10 NSWCCR 200, and, because the first defendant has submitted to the jurisdiction and participated in the proceedings and indicated its intention further to participate, the same considerations as led the Court of Appeal to confirm that proceedings brought by Mr Bengtel against Goliath Portland Cement Coy Ltd should remain in the Tribunal apply here.
It may be appropriate to recite, even though it might well be recognised, that the Tribunal, which was created in 1989 specifically to deal expeditiously with the cases of people suffering dust diseases, has adopted practices and been granted statutory procedures to enable it effectively to discharge the functions for which it was created. The Tribunal is well accustomed to hearing cases in which people suffer mesothelioma and other asbestos related diseases. Cases of mesothelioma and other forms of cancer are each treated as urgent. This is because the Tribunal’s experience confirms that the health of a person with mesothelioma or cancer may change suddenly and with little or no warning. Subject to the readiness of the parties to litigation the Tribunal will sit at any time and in any place in Australia to hear the cases of plaintiffs which are properly before it and who are unable to travel to Sydney. For this reason the Tribunal now regularly sits in Brisbane and regularly sits in Adelaide. It may be of interest to remark that sittings in Adelaide allocated for the future are slightly more than one week in each month. That having been said, however, it is appropriate to consider the tests which the law requires be applied.
The approach to be taken is that set out in Voth and Oceanic Sun to which I have already referred.
It is appropriate to consider the evidence on the way in which the Supreme Court of South Australia, where both counsel have assumed the proceedings would be initiated, might deal with proceedings if the action were stayed here and recommenced there.
There is evidence that procedures are available in the Supreme Court of South Australia to expedite hearings. Expedition requires an application to be made to the Court supported by medical evidence. It is accepted that there is no specialist dust diseases jurisdiction in South Australia and the evidence suggests that matters involving an asbestos condition normally take something in the order of 12 months to complete. The evidence, however, does not reveal whether that relates to the time within which an application for workers compensation would be complete or whether it relates to an action for damages. It is said in the annexure to the affidavit of the plaintiff’s solicitor that in order to obtain leave to administer interrogatories a lengthy process must be followed.
The matters concerning the grant of expedition were elucidated a little by telephone calls made by both the solicitor for the second defendant and the solicitor for the plaintiff after the hearing of this application began. Each solicitor spoke by telephone with the listings officer of the Supreme Court of South Australia.
The evidence on behalf of the second defendant shows that an application for an early hearing is normally assigned to a Master a week or two after the filing of the application. The Master would then determine whether expedition should be granted. If granted, and depending upon the circumstances and the availability of judges, a time for hearing would then be appointed. It would be possible to take the plaintiff’s evidence in the last week of January.
After evidence of that conversation was admitted the plaintiff’s solicitor also spoke by phone to the listings officer. In answer to his question she was unable to recall a mesothelioma case ever being heard in the Supreme Court of South Australia. Asbestos cases, she said, were few and far between, though she added that she did not always know what the cases, presumably in the Supreme Court, were about. She was unaware whether the judges of the Supreme Court took evidence at night or on weekends. Thus the situation seems to be that while expedition is available in the Supreme Court of South Australia no one except the person who might make the order could predict whether such an application would be successful, when the evidence of the plaintiff might be taken or when the hearing of the action would be complete. All that is known is that it is possible that the evidence of the plaintiff, if expedition were granted, might be taken by the end of January.
As it seems to me this case has features much in common with Bengtel and with a number of other cases which have been brought and determined in the Tribunal. In the judgments in James Hardie & Co Pty Limited v Barry & Anor [2000] NSWCA 353 delivered on 4 December last the Court of Appeal considered whether a case brought in the Tribunal, in which the negligent acts and omissions were taken to have occurred in Queensland, should be transferred from the Tribunal by order of the Supreme Court of New South Wales to the Supreme Court of Queensland under the cross vesting legislation. In the course of his reasons the President of the Court of Appeal considered a number of the English authorities on the question of forum non conveniens. Those authorities are well known and, I think, it is unnecessary to refer to or quote passages from them, but the President did observe that different considerations should apply in cases in the State Courts of Australia in respect of intranational torts than in English Courts in respect of international torts. In Henry v Henry (1986) 185 CLR 571 at 589 the High Court referred to its earlier decision in Oceanic Sun at 566:
“…the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, but the court should not focus upon that factor to the exclusion of all others”.
It has been abundantly clear since the decision of the High Court of Australia in John Pfeiffer Pty Limited v Rogerson [2000] HCA36; 74ALJR 1109 that there is but one common law for Australia, and thus wherever the plaintiff’s action is heard, the common law to be applied is the same. The second defendant, however, argues that because the plaintiff has alleged breaches of statutory duty a South Australian judge would be better placed to consider the application of the Health Act 1935 (SA) than a New South Wales judge. That Act is not a hard Act to follow, and I think there would be no difficulty in a judge of a court in any Australian jurisdiction considering and applying it.
I think it should be borne in mind also that as the plaintiff has pleaded his cause of action, if the defendants are found liable to the plaintiff, they will be found jointly and severally liable as joint tortfeasors. That tortfeasors might be joint tortfeasors was considered a relevant matter on the forum non conveniens application in Bengtel. In Bengtel’s case, also, Kirby P considered that the procedures available in the Tribunal, which were not available in the Supreme Court of Tasmania, were matters affecting the determination of the convenience of the forum.
Specifically, the plaintiff here will rely on procedures available in the Tribunal provided for under the Dust Diseases Tribunal Act. The first of these is s 23(1), which deals with informal proof and admissions. The second is s 25(3), which allows particular types of evidence given in one case to be given in another, whether or not the proceedings are between the same parties. S 25A, to which some reference has been made, allows for the use of discovery and interrogatories in one case to be given in another. The rules provide for filing in the registry by defendants of standard form discovery and interrogatories. None of these procedures is available in the Supreme Court of South Australia. It should also be observed that orders for discovery and interrogatories are made as a matter of course in the Tribunal. The evidence is that to obtain leave to administer interrogatories in the Supreme Court of South Australia a lengthy process must be followed.
The plaintiff will also seek to rely upon s 25B of the Dust Diseases Tribunal Act. This section provides that issues of a general nature determined in proceedings before the Tribunal may not be relitigated or reargued in other proceedings without leave. Since the decision in Barry there appears to be some doubt whether s 25B is procedural or substantive in nature. No doubt at some time in the future that question will finally be determined. The judgments of the Chief Justice and Priestley JA in Barry suggest, though it is probably obiter, that s 25B is substantive. Mason P, like myself, is of the view that the provision is procedural. The matters upon which the plaintiff would seek to invoke s 25B are that mesothelioma is an injury which is one and indivisible, and that the cause of action upon which the plaintiff sues arose shortly before he began to experience symptoms, so that there will be no defence available to the defendants under limitation law.
Without doubt each of the procedural provisions and the Tribunal’s practices would have the effect of reducing the time taken to complete the action and therefore reduce the costs. Because the Tribunal regularly sits in South Australia and is scheduled to sit there before the end of the year and well into next year the only difference, as it appears to me, in litigating the plaintiff’s action before the Tribunal rather than the Supreme Court of South Australia will be the time taken to hear the action and the time at which it is concluded.
I am not of the view that continuation of the proceedings in the Tribunal would be oppressive or vexatious in the sense used in Voth. The application to stay the proceedings on the grounds of the convenience of the forum should be dismissed.
The application under the SEP Act is brought pursuant to s 20. So far as relevant that section provides:
(3)The court may order that the proceedings by stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
(4)The matters that the court is to take into account in determining whether that court of 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 proceeding; 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.
It should first be observed that the second defendant has undertaken to the Tribunal that if the proceedings are stayed under the SEP Act and if proceedings are commenced in the Supreme Court of South Australia it will consent to an application for expedition of the plaintiff’s action. The plaintiff replies that whether that be so or not, if the proceedings are to be recommenced in South Australia, it is inevitable that further delay will result and further costs will be incurred.
Relying upon the procedural provisions to which reference has been made above the plaintiff submits that the proceedings will be conducted and completed more quickly and more cheaply if they remain in the Tribunal than would be the case if they are stayed and further proceedings are instituted in South Australia.
In respect of the particular matters that a court is to consider under s 20 of the SEP Act the plaintiff has made a number of observations.
As to the place of residence of the parties and of the witnesses likely to be called (s 20(4)(a)), there is no doubt that the plaintiff resides in South Australia; I do not yet know the place of residence of the witnesses. The plaintiff alone of the parties resides in South Australia. Each defendant, however, is present there and was present at all relevant times. The plaintiff has observed that I have no evidence the second defendant intends to call witnesses in or from South Australia. The response of the second defendant is that upon being served it moved expeditiously with this application and its factual investigations into the plaintiff’s claim are not complete. Accordingly, it does not yet know what evidence it might call. I have been informed that the second defendant is not in a position now to make any admission or concession. I think it plain that unless concessions and admissions are made the great bulk of the evidence will be located in South Australia, but that, as I see it, is no problem. The Tribunal’s practice is regularly to sit in other States and, as noted earlier, will, for particular cases in appropriate circumstances, travel to any part of Australia to receive evidence on any day and at any time.

The second matter to be considered under s 20(4) is the place where the subject matter of the proceedings is situated (s 20(4)(b)). This is, one might fairly take it to be, the place of the tort. There is no doubt that if negligent acts were committed and if negligent omissions were suffered then those acts and omissions occurred wholly within the State of South Australia. However, as Mason P observed, at par 108 in Barry, nothing turns upon where the (intranational) tort or torts alleged against a party occurred, insofar as their substantive rights or the ability of court systems to determine them fairly. This is because the High Court has declared that the common law in one State is the same as in every other State of the Commonwealth of Australia.
I am required next to consider the financial circumstances of the parties so far as I am aware of them (s 20(4)(c)). The evidence is that the plaintiff is a pensioner who has a contingency fee agreement with his solicitor, so that if his action fails he will not be required to pay costs to his solicitor. The second defendant, it is conceded, is a large and wealthy corporation with branches and offices located at many places throughout the nation. The first defendant is the nation. I think it fair to assume that its financial circumstances are somewhat more than modest, as it is fair to consider the plaintiff’s are less than modest. There is the potential for disadvantage to the plaintiff if the proceedings are stayed and are recommenced in South Australia. I do not know whether, in those events, he would be relieved of the requirement of paying the fees and costs incurred by his solicitor in New South Wales, nor do I know whether it is possible for him to enter into a contingency arrangement of the same type with a solicitor in South Australia. I cannot see that any financial disadvantage will be suffered by any party to the proceedings if they remain within the Tribunal. I think it is to the financial advantage of each party that the proceedings remain here.
S 20(4)(d) is not a relevant consideration on this application.
The next matter required to be considered is the law which would be most appropriate to apply in the proceeding (s 20(4)(e)). The common law of Australia is as seamless here as in the place from which it is derived. There is but one common law for Australia. The application of the Health Act 1935 (SA) constitutes no difficulty for anyone.
The last matter to be considered is whether a related or similar proceeding has been commenced against the person served or another person (s 20(4)(f)). Plainly that is the case. The plaintiff has sued also the Commonwealth of Australia and it submits to the Tribunal’s jurisdiction. It has taken steps in the proceedings and makes no application to stay them. If these proceedings are stayed and further proceedings instituted in the Supreme Court of South Australia, it, like the plaintiff and like the second defendant, will incur further costs.
Having considered s 20(4) of the SEP Act I am not persuaded that grounds exist requiring the proceedings to be stayed.
The power to stay proceedings under s 20(3) of the SEP Act is discretionary. The only authority on the residual discretion given under s 20(3) to which I have been referred is the decision of the Chief Justice of the Supreme Court of the Australian Capital Territory in Johnston v Road(sic) and Traffic Authority of New South Wales [1999] ACTSC 140.
Having quoted s 20(3) of the SEP Act the Chief Justice went on to say at [18]:
... The discretion appears to be unfettered. There is no reason why in the present case the exercise of the discretion should involve considerations any different from those already considered in relation to the application for a transfer under the Cross-Vesting Act. Ordinarily a court vested with jurisdiction is under a constitutional duty to exercise that jurisdiction when it has been lawfully invoked, as the jurisdiction of this Court has been properly invoked by service of its process under the Service and Execution of Process Act. To decline to exercise that jurisdiction without good reason would be contrary not only to the interests of justice, but to the rule of law itself.
It is submitted on behalf of the first defendant that that is an erroneous statement of the law. It is a statement in a considered judgment of one of the Supreme Courts of Australia and even if I disagreed with it, which I do not, it would be impertinent of me to disregard it. In determining whether another court is the appropriate court, it is useful to see how the interests of justice would be served in that court. In this connection it is not merely the interests of the plaintiff or the interests of either of the defendants which are to be considered; the community itself has a legitimate concern with the interests of justice. Of course, this is not to say the interests of justice would not be served in South Australia.
The procedural provisions and practices to which I have referred operate in such a way that litigation is conducted more expeditiously and more cheaply in the Tribunal than might otherwise be the case. Not only the plaintiff but the defendants will have their rights and liabilities determined with less cost and at a time earlier than would be the case if these proceedings were stayed and further proceedings instituted in the Supreme Court of South Australia. These factors are relevant to the interests of justice. Subject to compliance with orders concerning the interlocutory steps to be taken and its being ready for hearing this case can be heard in the Tribunal at any time hereafter.
In the result I am not satisfied that the proceedings should be stayed pursuant to s 20 of the Service and Execution of Process Act.
The application is dismissed. The second defendant will pay the plaintiff’s costs of the application as agreed or assessed..
Vacate listing 18 December 2000; for directions 19 December 2000.

A.J. Katzmann, SC instructed by Alex Stuart & Associates appeared for the plaintiff.
J.F. Burn, instructed by Australian Government Solicitor appeared for the first defendant.
Malcolm Holmes, QC instructed by Phillips Fox appeared for the second defendant.