Irving v Amaca Pty Limited

[2004] NSWDDT 32

Reported Decision (2004) 1 DDCR 534

Dust Diseases Tribunal

of New South Wales

CITATION:	Irving v Amaca Pty Limited & Ors [2004] NSWDDT 32
PARTIES:	Valma Kathleen Irving Amaca Pty Ltd ABN60 Pty Ltd Queensland Rail
MATTER NUMBER(S):	160 of 2004
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	03/06/04
DATE OF JUDGMENT:	06/04/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr J Joseph, SC instructed by Slater & Gordon FOR FIRST DEFENDANT: Mr Freeman instructed by Henry Davis York. FOR SECOND DEFENDANT: Ms K Giblett instructed by Tompsett and Co. FOR THIRD DEFENDANT: Mr D Anderson, Solicitor Church and Grace argued for the third defendant.

JUDGMENT:

1. The Court has before it an application by the third defendant named in a statement of claim served recently upon it. The statement of claim was filed by Valma Kathleen Irving, the plaintiff. The first defendant is Amaca Pty Ltd, the successor to James Hardie & Coy Pty Ltd. The second defendant is ABN 60 Pty Ltd, the successor to James Hardie & Co Ltd. The third defendant is Queensland Rail. The statement of claim pleads that the plaintiff was exposed to the inhalation of asbestos dust and fibre over different periods and in different circumstances. It is desirable I think at the outset to say what the allegations are in this respect. For the purpose of dealing with the application, which I will describe shortly, the matters pleaded will be taken as fact.

2. The plaintiff pleads exposure to the inhalation of asbestos dust and fibre, firstly, during the period from 1936 to 1941 when she was between the ages of six and 11 and she played in and around a factory at Newstead in Queensland, owned occupied and operated by James Hardie & Co Ltd, now the second defendant.

3. The second exposure pleaded results from the fact that on 17 November 1958 she married her husband, Frederick Lawrence Irving. It is said that during the period 1957 to 1984 he was employed by Queensland Rail, the third defendant. It is pleaded that in the course of his work he used products of James Hardie & Coy Pty Ltd, now the first defendant. As a result he used come home with dust on his clothes and in his hair, and the plaintiff was thereby exposed to the dust.

4. The third exposure pleaded relates to renovations carried out by the plaintiff and her husband at their house using the products of the first defendant. The renovations were firstly in 1963 when battens were lined with asbestos cement sheets; secondly, in 1965 when a study and sewing room were constructed using asbestos cement sheets; thirdly, in 1971 when a laundry was lined with asbestos cement sheets; fourthly, in 1972 when an asbestos cement wall in a toilet was replaced. The plaintiff sues the defendants for negligence and there is a statutory count pleaded against the third defendant, the detail of which I do not think it is necessary to go into at the moment.

5. The plaintiff was born on 27 March 1930, she is now 74 years old. It is pleaded that she suffers from mesothelioma. The statement of claim includes a prayer for damages in respect of an aspect of the plaintiff's loss in that she cannot, because of her illness, attend to some needs in her husband, who suffers from sarcoidosis and emphysema.

6. The application made by the third defendant to which the first and second defendants consent but about which they have said nothing is, firstly, that the proceedings be stayed pursuant to section 20 of the Service and Execution of Process Act 1992, Commonwealth. Alternatively that the proceedings be stayed or dismissed pursuant to Pt 13 r 5 or Pt 15 r 26 of the Supreme Court Rules. The second relief sought is based on the premise that it is alleged by the third defendant that the Tribunal in which the proceedings have been commenced is a clearly inappropriate forum.

7. It is convenient to state, firstly, what s 20 of the Service and Execution of Process Act says. It is headed

Stay of Proceedings

20(1).This section does not apply in relation to a proceeding in which the Supreme Court of a state is the Court of issue.

(2) The person served may apply to the Court of Issue for an order staying the proceeding.

(3) The Court may order that the proceeding be 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 proceeding include:

(a) The places of residences 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;

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

(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 proceeding;

(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.

(5) The Court's order may be made subject to such conditions as the Court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense.

(6) The Court may determine the application for an order without a hearing unless the applicant or a party objects.

(7) For the purposes of determining the application the Court may hold a hearing by videolink or telephone.

(8) A person who is entitled to practice as a barrister, solicitor or both before a court in (a) the place of issue or (b) another state in which a person is participating in the hearing by videolink or telephone has a right of audience before the Court at the hearing.

(9) This section does not affect the Court's power to stay a proceeding on a ground other than the ground mentioned in subsection (3).

(10) This section does not affect the operation of (a) The Jurisdiction of Courts (Cross-Vesting) Ac 1987 or (b) a corresponding law of a state.

8. It has been submitted by the third defendant, the moving party, that the introduction of the Service and Execution of Process Act introduced a new way of dealing with the problems thrown up by living in a Federation, not least the problems caused by the existence of both State and Federal Courts all over the country. It is submitted that the Act is concerned with process issuing out of courts and that applications of this type for a stay are to be dealt with by reference to the indicia set out in subparagraph (4). It is acknowledged that whether or not an order should be made is discretionary but that matters which are not included in subsection (4) but which may nonetheless be considered in the exercise of the discretion are restricted to those matters which relate to the objects of the legislation. By way of submission an illustration was offered that if the moving party made its application lacking clean hands then the Court would have the discretion to refuse it because of that fact.

9. The present application is resisted. Ultimately the areas of discourse by the moving party on the one hand and the resisting party on the other boil down to what should the Tribunal do in exercising the discretion that is clearly available to it under the section: in particular is it confined in that exercise, as is contended for by the third defendant, or may the Tribunal properly have regard to the fact that it is a specialist Tribunal with certain advantages provided for in the Dust Diseases Tribunal Act which means that it is able to deal with matters more quickly and more cheaply than courts without those special powers.

10. That s 20(3) confers a discretion it seems to me is clearly correct. See, for example, the judgment of Brooking J sitting as a member of the Full Court of the Supreme Court of Victoria in Equus Financial Services Ltd v F X Lah 8 September 1994. See also the judgment of Giles JA in Julia Farr Services Inc v Hayes (2003) NSWCA 37 delivered on 28 April 2003 and in particular at par 90. The learned judge in the latter case said this:

I do not accept the assertion that regard to each of the matters in pars (a) to (f) of s 20(4) compelled a finding that the Supreme Court of South Australia was the appropriate court for the determination of the case. But in any event, determining the appropriate court is not the end of the exercise. S 20(4) of the SEP Act confers a discretion following satisfaction that a court of another state with jurisdiction is the appropriate court for determination of the case. If there had been reference to the SEP Act in my view his Honour's discretion would have been exercised in the same way.

11. The rest of the paragraph has no bearing for present purposes.

12. Brooking J put the matter this way in Equus:

Six matters are referred to in the subsection, and in addition one matter is expressly excluded from the matters to be taken into account. Whether or not the word "may" in s 20(3) should be regarded as conferring a discretion, having regard to the matters of which the Court is required to be satisfied before it may make the order, it is clear that the determination whether a court of another state is the appropriate court to determine the matters in issue between the parties is a discretionary determination.

13. Whether the exercise of discretion is to be undertaken after identifying an otherwise appropriate court or whether it is part of the determination that one or other court is appropriate probably does not really matter.

14. One of the matters to be noted I think is that in matters such as this it has been held that the place of a tort, that is the place in which a breach of duty of care occurs is properly to be regarded as "when and at the place where the plaintiff was exposed to dust from the asbestos without adequate warning." James Hardie & Coy Pty Ltd v Putt NSWCA 27 May 1998 Sheller JA, which was followed in James Hardie & Coy Ltd v Grigor 1998 NSWSC 266 (see the judgments of Spigelman CJ and Mason P).

15. The terms of s 20(3) require the Tribunal in this circumstance to stay the proceedings if it is satisfied the court of another state having the jurisdiction to determine all the matters in issue between the parties is the appropriate court. There are similar considerations in the cross-vesting legislation in which the term "more appropriate" is used in respect of courts. In a matter to which considerable attention was given in the present application, namely, James Hardie & Coy Pty Ltd v Barry and Anor (2000) 21 NSWCCR 150 at 179 reference is made to what was said Bank Invest AG v Seabrook (1988) 14 NSWLR 711 at 730. Mason P said about the cross vesting legislation:

Like its analogues in s 5, s 5(2)(b) addresses three categories of proceedings,…………

For categories (i) and (ii), one of the matters required to be taken into account is whether it is “more appropriate” that the proceeding be determined by the proposed transferee Court. Category (iii) does not use this language. Nevertheless, for the reasons explained by Rogers A-JA in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730, matters falling solely in category (iii) are, like the other two categories, to be approached on the basis of determining which forum is “more appropriate”, in the sense discussed in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 as distinct from applying the High Court’s learning about forum non conveniens in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 and later cases. Although Bankinvest was a clear case and one falling within category (i), this approach to s 5(2)(b)(iii) was an essential step in the reasons of Rogers A-JA, with which Street CJ agreed and which he declared to be “henceforth definitive of the law and practice on the topic in this State” (at 715)

16. Whether or not different considerations apply in respect of cross-vesting as opposed to staying proceedings pursuant to the SEP Act is a matter to which I need to return shortly.

17. In support of the application the applicant tendered the affidavit of Mr David Andersen, sworn 27 May 2004. Mr Andersen is the solicitor acting for Queensland Rail in the present proceedings. The first part of the affidavit deals with historical aspects of the litigation to which I think no submissions were ultimately addressed. Later in the affidavit Mr Andersen deposed to the fact that he had made some inquiries of the Queensland Supreme Court to ascertain their ability to deal with matters in a hurry if the plaintiff's health required this to be done. Also annexed were some samples of notices issued pursuant to s 25(3) of the Dust Diseases Tribunal Act, some transcript in another case and some pleadings in other matters brought against the third defendant.

18. The respondent/plaintiff relied on an affidavit of Gavin Kotnik, solicitor, from the Brisbane office of the plaintiff's solicitors. He deposed to the nature of the Uniform Civil Procedure Rules in Queensland. He put forward information about the use of interrogatories in that state and the provisions of rules relating to interlocutory applications. He pointed out that in Queensland the law is that if a plaintiff dies before judgment general damages do not survive for the benefit of his estate. He deposes to the fact that his searches turned up only two judgments of the Supreme Court of Queensland relating to mesothelioma. He then deposed to the way in which the civil lists are managed in the Supreme Court of Queensland.

19. In Barry the applicant submits that considerations of the type referred in para 15 above do not get reached in an application under s 20 of the Service and Execution of Process Act. It is probably convenient, I think, to go so (4) of the Act and address the matters which are required to be addressed by the terms of that subsection.

20. The Tribunal must take into account in determining whether the court of another state is the appropriate court these things: (a) the places of residence of the parties and of the witnesses likely to be called in the proceeding. The plaintiff and her husband live in Queensland. One cannot know at this early stage of the proceedings but it seems highly probable that all her medical treatment is in Queensland. The third defendant clearly enough is Queensland based. The first and second defendants are companies said to be registered in New South Wales. Conformably with what I said earlier the place of the tort, if any, would seem to be Queensland, that being where the plaintiff was exposed to the dust. The witnesses likely to be called include the plaintiff, her husband, her medical treaters and they are I suspect based in Queensland.

21. No defences have been filed. If liability is contested, and that I daresay is a real possibility, forensic problems relating to liability can be foreseen to arise in a couple of areas. Firstly, one of the two decided cases referred to in Mr Kotnik's affidavit was that of Bale v Seltsam. I am told that that was a claim in which the defendants were successful, largely on the ground of foreseeability of risk of injury. The decision is 10 years old but it may be that foreseeability will arise in the present proceedings as an issue. Experts to deal with that field of discourse may come from all over Australia if it is necessary to litigate it. Such experts are commonly seen in the Tribunal, the ones that we see come from this state and from South Australia in particular, so if such an issue arises it may be that experts will come from New South Wales rather than Queensland. It is not possible to know. The other area in which it was suggested that liability may be in issue was in the area of causation. If matters of that type need to be argued then the experts once again are likely to come from anywhere in Australia and perhaps overseas. It is difficult to know at the time of this application what will transpire in respect of that aspect of the case.

22. Subparagraph (b) of s 4 requires consideration of the place where the subject matter of the proceeding is situated. Those words are apt to embrace the location of the plaintiff, which is Queensland, and I suppose her treaters, once again Queensland. Subparagraph (c) the financial circumstances of the parties. Nothing is known at this stage about the plaintiff's position. I assume that the defendants are financially viable.

23. Subparagraph (d) requires consideration of any agreement between the parties about the Court or place in which the proceeding should be instituted. There is no evidence of any contract between the parties to this litigation or any other form of agreement about such things. Subparagraph (e) the law that would be most appropriate to apply on the proceeding: having regard to what the High Court said in John Pfieffer Pty Ltd v Rogerson (2000) HCA 36 74 ALJR 1109 and also in Regie v Nationale de Usine Renault SA v Zhang (2002) HCA 810 14 March 2002; (2002) 76 ALJR 551, the law to be applied, whoever hears the case, will be the law of Queensland.

24. Subparagraph (f) requires consideration of whether a related or similar proceeding has been commenced against the person served or another person. It is not clear to me what other considerations in the circumstances are required to be considered under that subparagraph. There are no other proceedings which have a bearing on the present case although there are other defendants in the present proceeding.

25. Those indicators point to the fact that if nothing else were to be considered the Supreme Court of Queensland would have jurisdiction to determine the matters in issue between the parties and they point to the proposition that that court would be the appropriate court to determine the case.

26. We get back then to the issue of the Court's discretion. As I indicated Mr Andersen submitted that the scheme of the SEP Act is essentially all that needs be looked at to determine how s 20 should be given effect. It was submitted, and I am looking at the transcript at the foot of p 33 and into the top of p 34 that the Act came into force because of the development of commerce in this country over the last one hundred years and because, as was said in the second reading speech, the business outlook is increasingly national and for many purposes state and territory boundaries have become artificial and even meaningless. I wondered whether it was permissible to look at second reading speeches if the terms of the enactment were reasonably clear and Mr Andersen was able to point to the Acts Interpretation Act 1901 (Commonwealth) s 15A B in particular dealing with the topic.

27. There is no need to set out the section in full. I accept that it authorises looking at such material if it is capable of assisting in the ascertainment of the meaning of a provision. The submission was developed by saying (p 34 line 19) that the Act in effect did not import into the scheme it was setting up consideration of principles developed from forum non conveniens law. The whole purpose of the Act, it was submitted, was to facilitate the development of commerce in this country. The submission was developed by reference to communication and business dealings across borders, contractual obligations to be performed in various states, breaches of contracts occurring between parties in different states, perhaps damage being damage occurring in different states, so that, it was submitted, the intention of the Act was to permit people to invoke a court's jurisdiction anywhere and then the court could say what was the appropriate forum. This legislation, it was submitted, sweeps aside much of the judicial handwringing that has accompanied forum non conveniens law and any requirement to show that a chosen forum was a clearly inappropriate forum.

28. The Tribunal was then taken to a number of authorities which were called in aid to demonstrate that there had at various times been misunderstandings or misstatements in respect of the operation of the SEP Act but in essence I think I have fairly described what was the submission of the applicant. It was put that the submissions being advanced about the nature and scope of the section were really commonsense. If the submission is correct then that is the end of the argument.

29. I think the substantial difference contended for by Mr Joseph for the plaintiff was that the Tribunal’s discretion is not confined in the way in which Mr Andersen suggested. What is being looked at when the section is being employed is which of two courts, is the appropriate court.

30. It is submitted that in determining what is the appropriate court it would be wrong to ignore the fact that the Tribunal is a specialist Tribunal with certain statutory aids built into the Act constituting it, which means that it is able to determine cases of this type more quickly and more cheaply than courts which do not have the specialist powers available to them. In dealing with the competing submissions I wish to direct attention to what was said by Mason P in Barry at par 109 of the judgment:

Comparisons of this nature, that is comparing the attributes of the Supreme Court of another state and the Tribunal are very difficult to gauge and the whole inquiry is a most invidious one. Like the Tribunal the Queensland Supreme Court can and does offer speedy trials based upon full disclosure of evidence. Both the Tribunal and the Queensland Courts can receive evidence by telephone or videolink if appropriate. Substantial justice would be done in either forum and it would be quite inappropriate to refuse a transfer based upon any suggestion that the party would not get 'substantial justice ' according to law in Queensland. The most that one can say is that the Tribunal has extensive trial experience in these matters and that this should further assist dispatch...

31. It seems to me that if what is being determined according to the section is which of the courts is the appropriate court to deal with the case then it is legitimate to consider the attributes conferred by statute on the Tribunal to aid the quick, just and cheap disposal of cases.

32. The next thing is: can what was said by the Court of Appeal in Barry about a cross-vesting case be properly considered in these proceedings relating to Service and Execution of Process Act? Harking back to the second reading speech for a moment, it is clear at the time the Bill was introduced into the Federal parliament what the legislation was intended to achieve was that cases be dealt with in a more appropriate forum. See Hansard for 5 March 1992 p 868 second column. Further, as was submitted, if there were different concepts to be utilised in the application of the SEP Act on the one hand and the cross-vesting legislation on the other, it is not difficult to imagine a scene developing in which a party would move, pursuant to the SEP Act at the outset to shift a case to another state and then the court of the other state being moved to shift it back again pursuant to the different considerations applying under the cross-vesting legislation. All that would be needed is some music from Sir Arthur Sullivan.

33. I accept the submission that the concepts dealt with in each of the sets of legislation are similar. That being so it is legitimate, I think, to see what the Court of Appeal had to say in Barry about the statutory aids assisting this Tribunal in the discharge of its functions. The material has been dealt with at length in the judgment of Mason P in Barry at pars 101 to 117 of the judgment. Priestley J concurred (see par 126) in respect of that aspect of the case so did Spigelman CJ (see pars 17 to 18).

34. To simply say that the Tribunal has powers which assist in the way that I have mentioned is not enough to dispose of the case. If it were it would be almost a blanket invitation to every asbestos disease sufferer in Australia to commence proceedings in the Tribunal without regard to the other considerations set out in the SEP Act. There are considerations affecting this plaintiff about which one may have reasonable suspicion, I think. We know that she is 74. For the purpose of this application we may accept that she suffers from mesothelioma. A factor which experiences teaches is a consideration is that people with that disease, especially elderly people, are at risk of quick declines in their health. That, I think, is a consideration which has to be weighed in the balance.

35. I must confess that I do not find the balancing easy. In the end those last two factors cause me to say that in this case, bearing in mind that the Tribunal is a specialist Tribunal with experience of such matters, that the stay of proceedings sought pursuant to the SEP Act ought not be granted. To so say involves no criticism of any party, least of all the applicant. It is simply to weigh up those factors which I have mentioned which bear on the exercise of discretion as required by the Act.

36. There is a second application, that is that the proceedings should be stayed on the grounds that the Tribunal is a clearly inappropriate forum. The matters adverted to, I think, in the judgments in Barry and the other considerations personal to the plaintiff together with what will happen if liability really is in issue cause me to say that I am not satisfied that the Tribunal has been shown to be a clearly inappropriate forum.

37. In a moment I will make orders dismissing the application. I wanted before doing so to say one thing. This application has been brought on promptly and a great deal of effort has been expended, particularly by the solicitor for the applicant in getting it ready quickly. Out of deference to that effort and to the care with which the application has been presented I have given what I hope are clear reasons for the decision I have come to. I would not like, however, to lose sight of the way in which the High Court thought that applications for stay might be dealt with. The Justices were speaking of applications on the basis of forum non conveniens but what they had to say, it seems to me, might be properly applied to applications under the Service and Execution of Process Act. I refer to what was said in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565. The passage appears in the joint judgment of Mason CJ, and Deane, Dawson and Gaudron JJ. They were dealing with applications to set aside service and applications for a stay on inappropriate forum grounds. They said:

As regards both kinds of application and subject to one qualification, we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada (1987) AC at p 465, namely, that the primary judge should be allowed to study the evidence and refresh his or her memory of the relevant law 'in the quiet (of his or her Chambers) without expense to the parties; that he or she should not be burdened by unhelpful reference to other decisions on other facts; that submissions will be measured in hours and not days'. The qualification is that we think that in the ordinary case counsel should be able to furnish the primary judge with any necessary assistance by a short written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (ie 'clearly inappropriate forum' ) grounds.

38. I add in passing that the last line in subparagraph (4) of s 20 of the Service and Execution of Process Act may be understood by what immediately followed in Voth which was to this effect:

It seems to us that Lee J in Anglo-Australian Foods Ltd v Planta and French J in Green v Australian Industrial Investments Ltd placed too much weight upon the notion that a proceeding regularly invoked provides a prima facie right to have the proceedings continue in that forum.

39. It seems to me that that type of consideration is what the last line of subparagraph (4) is directed to.

40. I dismiss the motion.

41. Applicant to pay respondent plaintiff's costs.

42. Noted, other defendants seek no order.

Mr M Joseph, SC instructed by Slater and Gordon appeared for the plaintiff

Mr Freeman instructed by Henry Davis York appeared for the first defendant

Ms K Giblett instructed by J K Tompsett and Co appeared for the second defendant

Mr D Andersen, solicitor Church and Grace argued for the third defendant