James Hardie & Coy Pty Ltd v Barry

[2000] NSWCA 353

Reported Decision: [2000] 50 NSWLR 357
[2000] NSWCCR 150

New South Wales

Court of Appeal

CITATION:	JAMES HARDIE & COY PTY LTD v BARRY & ANOR; SELTSAM PTY LTD V BARRY & ANOR [2000] NSWCA 353 revised - 2/05/2001
FILE NUMBER(S):	CA 40600/00; 40599/00
HEARING DATE(S):	24, 25 August 2000
JUDGMENT DATE:	4 December 2000
PARTIES :	JAMES HARDIE & COY PTY LTD v Thomas Joseph BARRY & Anor; SELTSAM PTY LTD v Thomas Joseph BARRY & Anor
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 22; Priestley JA at 119

LOWER COURT JURISDICTION :	Proceedings removed from Common Law Division
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL:	FM Douglas QC/D Graham (Hardie) J Fernon (Seltsam) S Gageler (Barry) M Sexton QC / N Abadee/(A.G. Intervener)
SOLICITORS:	Allen Allen & Hemsley (Hardie) Toomey Pegg Drevikovsky (Seltsam) Slater & Gordon (Barry) I V Knight, State Crown Solicitor (Intervener)
CATCHWORDS:	Transfer of proceedings - plaintiff a resident of Queensland and pleads causes of action that include torts that occurred in Queensland - applications for transfer of proceeding under Jurisdiction of Courts (Cross-vesting) Act 1987 (the Cross-vesting Act) from Dust Diseases Tribunal to Supreme Court of Queensland - choice of law - sections 12A, 25(3), 25A and s25B Dust Diseases Tribunal Act 1989 (the DDT Act) - plaintiff seeks to rely upon ss 25(3) and 25B DDT Act to take advantage of evidence tendered and findings made in earlier matter - operation of ss8(1)(b)(ii) and 5(2)(b)(iii) Cross-vesting Act - Supreme Court has jurisdiction to remove and transfer to Queensland a proceeding pending in Tribunal under Cross-vesting Act - ss10 and 11 DDT Act - Tribunal itself lacks jurisdiction to transfer matter - cross-vesting scheme operates independently of High Court’s forum non conveniens doctrine - Constitution s118 - "interests of justice" in s5(2)(b)(iii) Cross-vesting Act - matters to be taken into account in deciding "more appropriate" forum - plaintiff’s choice of Tribunal and reasons for it are relevant considerations in determining forum - whether onus should rest on applicant for transfer of proceedings - proceeding in Tribunal unlikely to exceed four hearing days compared to weeks in proposed transferee court - unique procedural powers of the Tribunal relevant and significant in task of determining more appropriate forum - "interests of justice" favouring refusal of transfer - applications dismissed with costs. (D)
DECISION:	Applications dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40600/00
CA 40599/00


SPIGELMAN CJ
MASON P
PRIESTLEY JA

Monday 4 December 2000


JAMES HARDIE & COY PTY LTD v Thomas Joseph BARRY & Anor
SELTSAM PTY LTD v Thomas Joseph BARRY & Anor

Two applications in the Common Law Division of the Supreme Court were removed into the Court of Appeal. Barry, who was the first defendant in each application, was the plaintiff in a proceeding commenced in the Dust Diseases Tribunal (the Tribunal) against James Hardie & Coy Pty Ltd (James Hardie) and Seltsam Pty Ltd. Each company filed a summons in the Supreme Court joining Barry as first defendant and the other company as second defendant. Hereafter Barry will be referred to as the plaintiff and the two companies as the defendants. The defendants sought orders under the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Cross-vesting Act) that would have the effect of transferring the proceeding in the Tribunal to the Supreme Court of Queensland.

The plaintiff worked as a carpenter in Queensland, during which time he was exposed to and inhaled asbestos dust and fibre. He is a Queensland resident. Major factors in the plaintiff’s choice of the Tribunal were perceived procedural advantages compared to a Queensland court of general jurisdiction. The plaintiff invoked provisions in the Dust Diseases Tribunal Act 1989 (the DDT Act) which were not found in any Queensland legislation. They were:

• s12A (which abolishes any limitation period in the Tribunal),

• s25(3) (which permits historical and general medical evidence concerning dust exposure and dust diseases admitted in earlier proceedings to be admitted by leave in a later proceedings between different parties),

• s25A (which permits material obtained in one proceeding to be used in another under certain circumstances), and

• s25B (which requires leave to relitigate issues of a general nature already determined in other proceedings).

Section 12A was invoked in an endeavour to trump the three year Queensland limitation period that (subject to a limited discretionary exception: s31) would otherwise apply to Queensland torts whether the proceedings were tried in Queensland or in New South Wales (see Choice of Law (Limitation Provisions Act 1993) (the Choice of Law Act)).

One reason for the plaintiff invoking the jurisdiction of the Tribunal and foreshadowing his intention to rely upon ss25(3) and 25B is the desire to take advantage of the evidence tendered and findings made in an earlier matter (McDonald v State Rail Authority (NSW) (1998) 16 NSWCCR 695). Although that case was decided in James Hardie’s favour, the company lost a hotly contested issue of general causation, namely whether lung cancer may be caused or materially contributed to by asbestos exposure in the absence of asbestosis. The plaintiff contended that it was no more than a legitimate forensic advantage that he may be able to persuade the Tribunal to permit him to tender afresh expert evidence given in McDonald (if necessary) and to preclude the defendants from relitigating the general causation point. If the proceeding moved to Queensland, this would not be an option (absent consent from the defendants, which has not been indicated), regardless of the correctness of McDonald. Significant savings of court time (estimated in weeks) would ensue if the proceedings remained in the Tribunal. The defendants did not argue that McDonald was wrongly decided, nor did they indicate that they wished to call any significant different evidence on the general causation issue to that called by them in McDonald.

The defendants sought an order pursuant to s8(1)(b)(ii) removing the Tribunal proceeding to the Supreme Court of New South Wales. The plaintiff opposed the order sought on the ground that it was not available for a proceeding before the Tribunal because the general power to transfer was impliedly repealed in relation to Tribunal matters on the passing of the DDT Act; alternatively that the power to transfer under the Cross-vesting Act is vested exclusively in the Tribunal.

The defendants also sought an order pursuant to s5(2)(b)(iii) transferring the proceeding to the Supreme Court of Queensland. On the basis that it was open to the Supreme Court to remove and transfer the proceeding, the defendants asserted and the plaintiff denied that it is in “the interests of justice” that the proceeding be determined by the Supreme Court of Queensland. Within this dispute, there was debate about the general scope of that expression in s5(2)(b)(iii), in particular, whether the cross-vesting scheme operates independently of the High Court’s current elaboration of the forum non conveniens doctrine.

HELD (by Spigelman CJ, Mason P and Priestley JA agreeing dismissing the applications, with costs):

1 The Supreme Court has jurisdiction to remove and transfer to Queensland a proceeding pending in the Tribunal. The Tribunal itself does not have jurisdiction to transfer the matter. Section 10 of the DDT Act has not effected a partial repeal of the ambulatory Cross-Vesting Act. Butler v Attorney General Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 (referred); GazaGrazing Pty Ltd v Ampol Exploration Ltd (1990) 1 Qd R 202) (referred); Health Group Australasia Pty Ltd v Hanning [1999] NSWSC 719 (referred).

2 Discussion of John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, 74 ALJR 1109 and the common law choice of law rule for a tort occurring within Australia whose existence is to be litigated in a different Australian law area.

3 The Choice of Law Act imports the Queensland limitation provisions and s12A of the DDT Act does not provide otherwise in relation to a Queensland tort dispute litigated in a New South Wales Court per Geoffrey John Thomas Brear v James Hardie & Coy Pty Ltd & Anor (2000) NSWCA 352. However, the Tribunal is not required to disregard the provisions of sections 25(3), 25A and s25B of the DDT Act in their application to any torts occurring in Queensland. Unlike s12A, there is nothing to limit their expressed operation to local torts.

4 Sections 25(3), 25A and s25B of the DDT Act do not offend s118 of the Constitution in their application to the present case. Walker v Speechley, High Court of Australia, Gummow and Hayne JJ, unreported, 18 June 1999 (referred).

5 Discussion of the transfer of proceedings under s5(2)(b)(iii) of the Cross-vesting Act. Discussion of the construction of ss5(2)(b)(iii) and the judgment as to what “the interests of justice” require. The cross-vesting scheme operates independently of the High Court’s current elaboration of the forum non conveniens doctrine. Bankinvest AG v Seabrook (1988) 14 NSWLR 711 (followed); Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (referred); Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (referred); Schmidt v Won [1998] 3 VR 435 (referred); Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] WAR 531 (referred); Pegasus Leasing Ltd v Tieco International (Australia) Ltd (1993) 61 SASR 195 (referred); Waterhouse v Australian Banking Corporation (1989) 86 ACTR 1 (referred); Dawson v Baker (1994) 120 ACTR 11 (referred); Connolly v RTZ Corporation Plc [1998] AC 854 (referred); Lubbe v Cape Plc [2000] 1 WLR 1545 (referred); Bourke v State Bank of New South Wales (1988) 22 FCR 378 (referred).

Discussion of the onus resting upon the applicant for transfer in the context of a contested proceeding inter partes. Bourke (referred); Bourke v State Bank of New South Wales (referred); Dawson v Baker (referred); Hoddell v Hoddell Pty Ltd [1999] WASC 156 (referred).

6 The interests of justice lie with the efficient and expeditious disposal of the proceedings in the Tribunal. McDonald v State Rail Authority (NSW) (1998) 16 NSWCCR 695 (discussed); see McDonald v James Hardie & Coy Pty Ltd (No 2) (1998) 17 NSWCCR 178 (referred); James Hardie Industries Pty Ltd v Grigor (1998) 17 NSWCCR 178 (referred); Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 74 ALJR 68 (referred).

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40600/00
CA 40599/00



SPIGELMAN CJ
MASON P
PRIESTLEY JA

Monday 4 December 2000


JAMES HARDIE & COY PTY LTD v Thomas Joseph BARRY & Anor
SELTSAM PTY LTD v Thomas Joseph BARRY & Anor
JUDGMENT

1    SPIGELMAN CJ: I have read the judgment of Mason P in draft. I agree with his Honour’s reasons, subject to one matter with respect to which I wish to make some additional observations and another matter with respect to which I wish to state my own reasons. 2    The matter with respect to which I wish to make additional observations concerns the construction of the Jurisdiction of Courts (Cross Vesting) Act 1987. Subsection 5(2) of that Act is set out in the judgment of Mason P. As his Honour notes, the Plaintiffs in this Court invoked subpara 5(2)(b)(iii) which provides:

“5(2)(b) Where:
… it appears to the … court that:
( …)
(iii) it is otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of another State or of a Territory,
the … court shall transfer the relevant proceeding to that other Supreme Court.”

3    This power does not confer a discretion, in the sense that the Court exercises a power of choice. The Court makes a judgment as to what “the interests of justice” require and, having made the judgment that the proceedings ought be determined in another court, the Court is obliged to transfer the proceedings. (See Bennion “Distinguishing Judgment and Discretion” (2000) Public Law 368). 4    As Mason P notes, since Bankinvest AG v Seabrook (1988) 14 NSWLR 711, the test that has been applied under this paragraph involves the determination of which forum is “more appropriate”, notwithstanding the absence in subpara 5(2)(b)(iii) of the words “more appropriate”, which words do appear in the previous two subparas ie. 5(2)(b)(i) and (ii). This conclusion may, in part, be supported by the provisions of recital (c) at the commencement of the statute which sets out the objectives of the legislation:

“… whereas it is desirable:
…
(c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.”

5    Mason P refers to the relevant authorities. This approach to the determination of applications for transfer which invoke subpara 5(2)(b)(iii) has received widespread acceptance. It is, as his Honour notes, just the kind of co-operative national scheme with respect to which it is essential that State Supreme Courts adopt a consistent approach. 6    The second matter on which I wish to add some observations concerns the application of this test in the circumstances of this case. I agree with all the reasons that his Honour gives for getting to the point at which the exercise of this jurisdiction is enlivened in this Court. 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. 8    The test of location of a tort is one of substance (Distillers Co Biochemicals (Limited) v Thompson [1971] AC 458 at 468). Difficulties arise in a case such as the present where injury has been occasioned by multiple exposures. In the present case, the overwhelming preponderance of exposure was in Queensland to Queensland made products. There was a small proportion of Queensland exposure to New South Wales made products and a single instance of exposure in New South Wales. 9 It is not necessary to determine on a final basis what is the place of the tort. For the relevant purpose of exercising the power under s5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act, this Court should proceed on the basis that Queensland was the place of the tort. If the issue were to arise in the course of the litigation, the evidence could be quite different to that presented in this Court for purposes of the applications before the Court. When combined with the residence of Mr Barry, the location of the tort strongly suggests that the appropriate court is the Supreme Court of Queensland. 10 However, a factor in determining whether or not to exercise the power which James Hardie and Seltsam invoke is s25B of the Dust Diseases Tribunal Act 1989. That section and the respective submissions in relation to it are set out in the judgment of Mason P. 11 Mr Barry submitted that irrespective of whether s25B should be characterised as “procedural” or as “substantive”, it was a law expressed to apply in all proceedings before the Dust Diseases Tribunal. In their oral submissions, James Hardie and Seltsam modified their written submissions by conceding, for the purposes only of the application before this Court, that if the matter were to be heard by the Dust Diseases Tribunal, then s25B would be applicable to the proceedings. 12 Accordingly, for purposes of determining whether the Court should exercise the power to transfer the proceedings it is common ground that, subject to the grant of leave by the Tribunal in accordance with s25B, James Hardie and Seltsam will not be permitted to re-litigate or re-argue, relevantly, the issue of causation determined by the Dust Diseases Tribunal in McDonald v State Rail Authority (1998) 16 NSWCCR 695.
13    On this basis, the decision as to whether it is “in the interests of justice” that the Supreme Court of Queensland should determine the proceedings, must proceed on the basis that if the matter remains in New South Wales, the defendants in the Dust Diseases Tribunal will be prevented, without leave, from litigating or arguing a critical issue on causation. If the matter is transferred to the Supreme Court of Queensland, then that critical issue can be agitated without leave. 14    Unlike the United States, there is no doctrine of collateral estoppel in Australian law (Spencer Bower, Turner and Handley, The Doctrine of Judicata (3rd ed) 1996 at para 213). However, issues of abuse of process may arise in such circumstances. For example, where a defendant has by a single negligent act caused damage to a number of different persons who sue in separate proceedings, a point may well arise where it constitutes an abuse to put in issue a factual matter which has been determined against that defendant in a number of proceedings. (c/f Spencer Bower, Turner and Handley supra Chapter 26 esp paras 447 and 451). Nothing like that exists in the present case. The decision in McDonald v State Rail Authority could not be appealed by the defendant. Although it lost on the general issue of causation, the defendant was successful in the proceedings overall. 15 For the purposes of making the judgment as to where the “interests of justice” lie for purposes of s5(2)(b)(iii), the characterisation of a law as “procedural” or “substantive” does not directly arise. Nevertheless, in a context in which, for the reasons I have explained above, the place of the tort and, accordingly, the applicable substantive law is, for present purposes, that of Queensland, the significance of the modification to the substantive law occasioned by s25B, is a material factor to be considered in determining the issue of “the interest of justice”. As noted above, all parties asked this Court to proceed on the basis that s25B would be applicable in the Dust Diseases Tribunal. 16 In substance, the application of s25B, subject to a grant of leave, constitutes a presumption of fact with respect to, relevantly, the general issue of causation applicable to these proceedings. In the case law on choice of law, a statute creating such a presumption would, in my opinion, be characterised as “substantive” rather than “procedural”. (See eg. Owners of the Sailing ShipFortunato Figariv Steamship Coogee (1904) 29 VLR 874, especially at 900 per Madden CJ; In reCohn [1945] 1 Ch 5, especially at 7-8 per Uthwatt J; Mahadervan v Mahadervan [1964] P 233 at 239 and 242 per Sir Jocelyn Simon P; Nygh Conflict of Laws in Australia (6th ed) especially at pp 254-255 and 260-261; Dicey and Morris The Conflict of Laws (13th ed) Vol 1 esp at paras 7-014 to 7-016 and 7-026 to 7-029). 17 The characterisation of s25B as “substantive” emphasises the significance of the modification of the law of the place of the tort which the application of s25B would impose on the conduct of the instant proceedings. The extent of the modification of the substantive law of the place of the tort which would thus be occasioned, if the Court refused the application for a transfer, is a matter which weighs heavily in the balance in favour of a transfer. 18 On the other hand, there are a range of countervailing considerations to which Mason P refers. I myself give particular weight to the significant diminution in the delay of and the cost of the proceedings in the individual case which is occasioned by the fact that, subject to the grant of leave, a difficult factual issue will not need to be litigated. 19 No attempt was made in this Court to present evidence, even on a basis appropriate for the interlocutory nature of these proceedings, that would indicate why the factual conclusion with respect to causation reached by the Dust Diseases Tribunal in McDonald v State Rail Authority supra was in any way open to challenge. In the absence of such evidence, this Court should, for purposes of exercising the jurisdiction which it is asked to exercise, proceed on the basis that the Dust Diseases Tribunal was correct in its conclusion and that the Supreme Court of Queensland would be unlikely to reach any other conclusion. 20 In substance, the submission on behalf of James Hardie and Seltsam in this Court was that, by force of the traditions of the adversary system, they have a right to litigate the issue which they ought not be denied and that, accordingly, the interests of justice favour a transfer. I do not agree. Section 25B, on the basis of the concession made in this Court by James Hardie and Seltsam, is a statutory modification of the adversary system for cases conducted in New South Wales. There is no such modification in Queensland. However, in the absence of any evidence that there is any substantive effect from the operation of s25B in the instant case, the interests of justice lie with the efficient and expeditious disposal of the proceedings. 21 I agree with the orders proposed by Mason P.

22   

MASON P: Two applications in the Common Law Division of the Supreme Court were removed into the Court of Appeal.

Overview of issues

23 Mr Barry, who is the first defendant in each application, is the plaintiff in a proceeding commenced in the Dust Diseases Tribunal (the Tribunal) against James Hardie & Coy Pty Ltd (James Hardie) and Seltsam Pty Ltd (Seltsam). Pleadings have been exchanged and the matter is progressing towards readiness for trial. 24 Each company filed a summons in the Supreme Court joining Mr Barry as first defendant and the other company as second defendant. Despite their respective positions in the records of this Court, I shall hereafter refer to Mr Barry as the plaintiff and the two companies as the defendants. 25 The defendants seek orders under the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Cross-vesting Act) that would have the effect of transferring the proceeding in the Tribunal to the Supreme Court of Queensland. Specifically, the defendants seek:

• an order pursuant to s8(1)(b)(ii) removing the Tribunal proceeding to the Supreme Court of New South Wales, and

• an order pursuant to s5(2)(b)(iii) transferring the proceeding to the Supreme Court of Queensland.

26 The order sought under s8 is opposed by the plaintiff on the ground that it is not available for a proceeding before the Tribunal because the general power to transfer was impliedly repealed in relation to Tribunal matters on the passing of the Dust Diseases Tribunal Act 1989 (the DDT Act); alternatively that the power to transfer under the Cross-vesting Act is vested exclusively in the Tribunal. It will be seen that I reject these submissions. 27 On the basis that it is open to the Supreme Court to remove and transfer the proceeding, the defendants assert and the plaintiff denies that it is in “the interests of justice” that the proceeding be determined by the Supreme Court of Queensland. Within this dispute, there is debate about the general scope of that expression in s5(2)(b)(iii) of the Cross-Vesting Act, in particular, whether the cross-vesting scheme operates independently of the High Court’s current elaboration of the forum non conveniens doctrine. At issue is whether a court contemplating transfer in a case such as the present is to determine which forum is more appropriate, or whether a proceeding will only be transferred against the will of a plaintiff if the chosen forum is clearly inappropriate.
28    The plaintiff is a resident of Queensland and he pleads causes of action that include torts that occurred in Queensland. The High Court has recently expounded the principles applicable to choice of law issues pertaining to a claim brought in an Australian court outside the law area where the tort occurs (John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, 74 ALJR 1109, 172 ALR 625). 29 It is common ground that, for choice of law purposes, a tort is complete where it arose in substance (Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 468, Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 567). The parties disagree as to the outcome of applying this test to the facts in issue. But neither side has suggested that the court trying the claim must choose a single place of tort in relation to the plaintiff’s disease. It appears to be common ground that asbestos-related claims against a single defendant might give rise to more than one tort occurring in more than one law area with the damages (if any) having to be apportioned accordingly (cf Brear’s Case, discussed below and Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421). 30 Major factors in the plaintiff’s choice of the Tribunal are perceived procedural advantages compared to a Queensland court of general jurisdiction. The plaintiff invokes provisions in the DDT Act which are not found in any Queensland legislation. They are:

• s12A (which abolishes any limitation period in the Tribunal),

• s25(3) (which permits historical and general medical evidence concerning dust exposure and dust diseases admitted in earlier proceedings to be admitted by leave in a later proceedings between different parties),

• s25A (which permits material obtained in one proceeding to be used in another under certain circumstances), and

• s25B (which requires leave to relitigate issues of a general nature already determined in other proceedings).

31 Section 12A is invoked in an endeavour to trump the three year Queensland limitation period that (subject to a limited discretionary exception: s31) would otherwise apply to Queensland torts whether the proceedings were tried in Queensland or in New South Wales (see Choice of Law (Limitation Provisions Act 1993) (the Choice of Law Act)). 32 The other provisions in the DDT Act are part of a group which facilitate proof and avoid the repeated calling of witnesses or the reagitating of issues decided in earlier cases. The Court was not referred to any comparable Queensland provisions. 33 It is common ground that one reason for the plaintiff invoking the jurisdiction of the Tribunal and foreshadowing his intention to rely upon ss25(3) and 25B is the desire to take advantage of the evidence tendered and findings made in an earlier matter (McDonald v State Rail Authority (NSW) (1998) 16 NSWCCR 695). Although that case was decided in James Hardie’s favour, the company lost a hotly contested issue of general causation, namely whether lung cancer may be caused or materially contributed to by asbestos exposure in the absence of asbestosis. The plaintiff contends that it is no more than a legitimate forensic advantage that he may be able to persuade the Tribunal to permit him to tender afresh expert evidence given in McDonald (if necessary) and to preclude the defendants from relitigating the general causation point. If the proceeding moved to Queensland, this would not be an option (absent consent from the defendants, which has not been indicated), regardless of the correctness of McDonald. There is no reason to doubt the evidence of the plaintiff’s solicitor that significant savings of court time (estimated in weeks) could ensue if the proceedings remain in the Tribunal. 34 Needless to say, the very matters which the plaintiff views as advantages are seen otherwise by the defendants. The defendants go further, arguing that it is not in the interests of justice that a litigant can search out a relatively inappropriate forum that has reached a view on a particular legal or factual matter. The defendants also argue that s25B is substantive in its operation, with the result that it will not be available to the plaintiff as regards Queensland torts in light of John Pfeiffer. 35 Alternatively, the defendants submit that ss12A and 25B of the DDT Act are invalid in their application to a Queensland tort. Reliance is placed on s118 of the Constitution. This constitutional issue - which has attracted the intervention of the Attorney General for New South Wales, intervening in support of the plaintiff - must be addressed before the Court returns to the wider issues involved in the application of s5 of the Cross-vesting Act. It will be seen that the constitutional issue touching s25B was ultimately not pressed - for the time being at least. 36 The plaintiff in turn invokes s117 of the Constitution. It is said to preclude any argument that his Queensland residence is a relevant factor in the calculus as to where the interests of justice lie as regards transfer. (I find this issue elusive in the present context and am happy that it becomes unnecessary for me to grapple with it.) 37 As indicated, one provision of the DDT Act which the plaintiff invokes is s12A. The plaintiff argues that this section removes any limitation bar that would otherwise apply in relation to a Queensland tort in consequence of both the Choice of Law Act and the recent decision in John Pfeiffer. Existing authority in the Tribunal has construed s12A as inapplicable to an interstate tort (Brear v Commonwealth of Australia & Ors (1999) 18 NSWCCR 637). The plaintiff seeks to use these proceedings, adventitiously removed into the Court of Appeal, as the vehicle for overruling Brear. In fact Brear was under appeal in this Court. Arrangements were therefore made for that appeal to be heard expeditiously by the Court as presently constituted. The arguments raised by the present parties on this issue are addressed in the judgment of the other proceedings (Brear v James Hardie & Coy Pty Ltd & Anor [2000] NSWCA 352). I conclude that the plaintiff will not escape the application of the Queensland limitation provisions even if the proceeding remains in the Tribunal.

The substantive issues in the proceeding

38    The plaintiff commenced the proceeding in the Tribunal by filing a statement of claim on 31 March 2000, serving it on the defendants on 8 and 9 May 2000. The plaintiff pleads that:

• at all material times the plaintiff was employed as a carpenter or worked as a carpenter in his own right in the State of Queensland (par 1),

• at all material times, the defendants manufactured and/or supplied asbestos cement building products for use in the building industry in Queensland (pars 3-4),

• while working as a carpenter, the plaintiff was exposed to and inhaled asbestos dust and fibre (pars 5-8),

• the defendants knew or ought to have known that their asbestos cement building products would be used in the type of work done by the plaintiff and his fellow workers and that such work would release asbestos dust and fibre in respirable form into the atmosphere (pars 9-10),

• as a consequence of inhaling asbestos dust and fibre the plaintiff suffered injury with consequential loss and damage (pars 11-12).

39    Paragraph 13 of the Statement of Claim gives particulars of the defendants’ negligence, including:

• failure to warn,
• failure to withdraw products as soon as the defendants became aware or ought to have been aware of the risks to health,
• manufacturing and supplying products containing asbestos when there was a real risk of injury to health,
• failure to label adequately,
• failure to advise or instruct in the safe use of the products.

40    The plaintiff will contend at trial that the place of any tort based on manufacture is the place of manufacture, regardless of where the exposure occurred (cf James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 at 42, John Pfeiffer at [81]). He will seek to prove that this place is New South Wales, both generally and (in the alternative) as regards exposure to the products Tilux and compressed sheet (which James Hardie admits were manufactured in New South Wales). According to the affidavit of Mr R T Williams, the defendants strongly assert that most asbestos products used in the Queensland building industry were manufactured in Queensland. It is unnecessary for these issues to be resolved at this stage. 41 Alternatively, the plaintiff pleads torts based upon negligent failure to prevent harmful exposure at the locations where the plaintiff worked as a carpenter. In the main, these were in Queensland. 42 James Hardie sought further and better particulars of the statement of claim and these were provided by the plaintiff’s solicitors on 9 June 2000. A Schedule to that letter lists numerous Queensland work locations where the plaintiff was exposed to asbestos. It also asserts that in 1958-1959 the plaintiff worked in a carpentry partnership doing sub-contract carpentry at “South East Queensland and Minora Point Northern NSW”. Paragraph 1 of the pleading stands unamended, but the plaintiff has foreshadowed his intention to seek leave to amend accordingly (Slater and Gordon letter 7 July 2000). 43    The case has been argued by the defendants on the basis that Queensland law will apply (for various reasons) to the extent that the plaintiff establishes a tort or torts occurring in that State. It is not argued that there can be only one tort giving rise to the plaintiff’s illness. No one has suggested that New South Wales law should step aside in relation to such torts as the plaintiff proves to have occurred in this State. 44    Shortly after the statement of claim was served, James Hardie’s solicitors wrote to the plaintiff’s solicitors asserting that the torts alleged were Queensland torts. Reference was made to James Hardie & Coy Pty Ltd v Putt (1998) 43 NSWLR 554. It was claimed that Queensland was the clearly more appropriate forum and the present application was foreshadowed. James Hardie filed its Summons for removal on 17 May 2000. Seltsam’s Summons was filed on 3 August 2000. 45 Pursuant to procedural Directions made by the Tribunal the parties have proceeded towards trial. Defences were filed in mid June. There has (I assume) been discovery. No doubt it is proposed that evidence about the risks of asbestos and the defendants’ practices tendered in earlier proceedings will be tendered at the trial of this matter (cf s25(3) of the DDT Act). 46 Although the defendants accept that the plaintiff suffers from lung cancer, they have put him to proof of the circumstances giving rise to the disease. In particular, they dispute that it was caused by inhalation of asbestos dust and fibre. The defendants also assert that the plaintiff’s cigarette smoking was the cause of his disease and they point to the absence of x-ray evidence of asbestosis. They have also pleaded that lung cancer is not a condition that is one and indivisible and that they are only liable for that part of the plaintiff’s lung cancer caused by exposure to their products. These are the areas of dispute in which the plaintiff will invoke McDonald’s Case. 47    The plaintiff was born in 1929. On the latest evidence, he is likely to die from lung cancer within 6-12 months.

Applicability of Cross-vesting Act:

Does the Supreme Court have jurisdiction to remove and transfer to Queensland a proceeding pending in the Tribunal?

Does the Tribunal itself have jurisdiction to transfer the matter?

48 For the reasons which follow, I answer Yes to the first question and No to the second. 49 I set out the relevant parts of ss5, 8 and 9 of the Cross-vesting Act, emphasising the portions relied upon by the defendants:

Transfer of proceedings

5.(1) ….

(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….

Orders by Supreme Court

8.(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.

Exercise of jurisdiction pursuant to cross-vesting laws

9. The Supreme Court :

(a) may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Commonwealth or a State relating to cross-vesting of jurisdiction; and
(b) may hear and determine a proceeding transferred to that court under such a provision.

50 Section 8(1)(b)(ii) (read with s8(1)(a)(ii)) is invoked as the source of the Supreme Court’s jurisdiction to remove the Tribunal proceeding into the Supreme Court. Sections 5(2)(b)(iii) and 9(a) are invoked as the sources of the Supreme Court’s jurisdiction to transfer the removed proceeding to the Supreme Court of Queensland. The Queensland equivalent of s9 (ie Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s9) gives the Supreme Court of Queensland jurisdiction to receive the transfer and to hear and determine the transferred proceeding.
51 The plaintiff submits that the power conferred by ss8 and 9(a) cannot be used in the present case because of the combined operation of ss10(1) and 11 of the DDT Act. It is further submitted that any power to transfer the proceeding to the Supreme Court of Queensland is vested solely in the Tribunal, pursuant to s10(4) of the DDT Act. 52 So far as relevant, ss10 and 11 of the DDT Act provide:

Jurisdiction and functions of the Tribunal

10.(1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.

…

(4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.

(5) Subject to sections 13 (6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court.

Claims for damages for dust diseases etc. to be brought under this Act

11.(1) If:

(a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition; and
(b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person; and

(c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,

proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal.

…

(3) If the cause of action giving rise to proceedings to be brought under subsection (1) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered.

(4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings.
….

53    The DDT Act establishes the Tribunal as a specialist body with exclusive jurisdiction in defined dust-related matters, whether or not arising in New South Wales (Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414). 54 The plaintiff’s submission proceeds by the following steps:

(1) The proceeding duly commenced in the Tribunal falls squarely within s11(1) of the DDT Act . This is not disputed.

(2) Section 9(b) of the Cross-vesting Act may be impliedly repealed or precluded by certain types of enactment that confer on a court other than the Supreme Court exclusive jurisdiction to hear and determine particular classes of matter ( GazaGrazing Pty Ltd v Ampol Exploration Ltd (1990) 1 Qd R 202), Health Group Australasia Pty Ltd v Hanning [1999] NSWSC 719 at [17]).

(3) Section 10 of the DDT Act is such a provision.
(4) If s9(b) of the Cross-vesting Act is unavailable to the Supreme Court with respect to a type of matter, so too are ss8 and 9(a). The Supreme Court cannot remove a proceeding which it cannot itself hear and determine.

(5) In any event, the Tribunal has the power to transfer the proceeding to the Supreme Court of Queensland through the combined operation of the Cross-vesting Act and s11(4) of the DDT Act. As a matter of “comity” (semble, discretion), the Supreme Court should refrain from taking the matter out of the Tribunal’s hands.

55 I would reject steps (3), (4) and (5). 56 Section 10(1) of the DDT Act gives the Tribunal exclusive jurisdiction to “hear and determine” proceedings falling within s11(1) such as the claim asserted by the plaintiff. But such grant says nothing about any jurisdiction otherwise conferred expressly on the Supreme Court that does not fall within such description. For example, the appellate jurisdiction of this Court that is conferred by s32 of the DDT Act is obviously unaffected by s10(1). 57 Sections 8(1)(b) and 9(a) of the Cross-vesting Act are also outside the scope of s10(1) of the DDT Act, at least insofar as removal into the Supreme Court is in aid of the jurisdiction otherwise conferred by that Act and is not done with a view to the Supreme Court itself hearing and determining the proceeding (cf s9(b)). The “and” that divides subsections (a) and (b) of s9 is obviously disjunctive, because a primary function of s9(a) is to confer or confirm (Health Group at [22]) the Supreme Court’s jurisdiction to receive removed proceedings and transfer them to another Supreme Court, steps which necessarily do not involve it hearing and determining the removed proceedings. 58 Cases like Gaza involve the question whether s9(b) can stand together with a specific grant of exclusive jurisdiction to an inferior Court or Tribunal to hear and determine a class of proceedings. That is not the present case, because only s9(a) is engaged, at most. Indeed, s8 would appear sufficient in its own right in the present circumstances. 59 The plaintiff submits that s11(1) of the DDT Act effected a partial repeal of the Cross-Vesting Act by narrowing or qualifying jurisdiction granted in general terms to the Supreme Court which would otherwise have been broad enough to encompass the present type of application. This is a bold submission having regard to the legislative history of the cross-vesting scheme as an exercise in co-operative federalism. No reason is suggested why Parliament might have wished to exclude dust-related claims entirely from the beneficial scope of the scheme. If the plaintiff is correct, then the passing of the DDT Act made it impossible for a claim pending in the Tribunal to be uplifted with a view to its linkage with proceedings already pending in another Australian court. The likelihood becomes even remoter when it is realized that the cross-vesting scheme was enacted to embrace transfers sought by plaintiffs as well as defendants and consensual as well as opposed transfer applications. 60 Nor can I accept the submission that the Tribunal may exercise jurisdiction under the cross-vesting scheme. 61 The plaintiff would construe the words “related to” in s11(4) of the DDT Act with all the scope of a grant of legislative power. He then seeks to draw down upon “related” proceedings, whether actual or potential, the scope of exclusivity conferred by s10(1) upon claims falling within s11(1) of that Act. Section 3(1) of the DDT Act defines “ancillary or related matter” to include any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not. This would pick up claims for contribution against tortfeasors and disputes about insurance cover. 62 But it is an entirely different thing to say that such an ancillary or related matter falls within the preclusion of s10(1) as soon as the original plaintiff and defendant are at issue on the substantive claim and even before the defendant makes any ancillary or related claim in the Tribunal. It is clear that s10(1) was introduced to ensure that, within New South Wales at least, particular types of dust-related claims were litigated at trial only in a specialist tribunal. But it does not follow that the pendent jurisdiction which “may” be added pursuant to s11(4) falls within the same dispensation. Section 12 of the DDT Act reinforces this reasoning. 63 It is to me inconceivable that s10 of the DDT Act effected a partial repeal of the ambulatory Cross-vesting Act, to the detriment of the Supreme Court’s jurisdiction thereunder. In Butler v Attorney General (Vic) (1961) 106 CLR 268 at 276, Fullagar J said that:

… where the comparison to be made is between State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to another. In other words it will commonly be found that the appropriate maxim is not leges posteriores priores contrarias abrogant but generalia specialibus non derogant .

64 This answers the suggestion of implied partial repeal of the Cross-vesting Act. But even the maxim generalia specialibus non derogant casts little light upon the present issue. The plaintiff’s asbestos claim and the defendants’ application under the cross-vesting scheme are each quite specific in their own way. 65 It was a vital aspect of the cross-vesting scheme that the unappealable and irreversible decision to transfer a proceeding out of one State’s system into a Federal, Territorial or other State system would be made solely in and by the State Supreme Court. The Cross-vesting Act confers no power of transfer upon the Tribunal, given that the potential recipients of a transfer order are the Federal Court of Australia, the Family Court of Australia and the Supreme Courts of other States. Indeed, the cross-vesting Acts of the other States and the Territories only contemplate receival of State matters that are transferred from a State Supreme Court. A purported transfer by the Tribunal to the Supreme Court of Queensland would be futile because the latter Court would have no jurisdiction to receive it under the cross-vesting scheme. 66 At this point of time no matter of the transfer under the cross-vesting scheme has arisen in the Tribunal. And, unless the plaintiff’s argument is circular, it can never arise there, because jurisdiction to transfer is given by the Cross-vesting Act solely to the Supreme Court. 67 The plaintiff suggested that s10(4) of the DDT Act confers on the Tribunal the Supreme Court’s cross-vesting jurisdiction in relation to proceedings brought under s11 of the DDT Act. I disagree. Section 10(4) gives the Tribunal the Supreme Court’s “power to make decisions” in any proceedings brought under s11 or transferred under s12. This is a reference to decisions concerning the hearing in the Tribunal, including interlocutory aspects thereof. The “jurisdiction” given to the Supreme Court under the parts of the cross-vesting scheme invoked in this case is of a different order altogether. 68    Accordingly, the Tribunal has no jurisdiction to transfer and the Supreme Court alone has jurisdiction to remove the proceeding for the purpose of transferring it to the Supreme Court of Queensland.

The application of ss12A and 25B of the DDT Act to the plaintiff’s claim in the Tribunal

69 A primary reason for the plaintiff invoking the jurisdiction of the Tribunal was the perceived advantages of provisions inserted into the DDT Act in 1995 and 1998. They are s25(3) (added in 1995) and ss12A, 25A and 25B (added in 1998):

No limitation period

12A. (1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time.

(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions.

(3) Without limiting subsection (2):

(a) sections 14, 18A, 60C and 60G of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and
(b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and
(c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force.
Evidence in proceedings before the Tribunal
25. (1) ….

(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties.

Material already obtained

25A. (1) Material obtained for the purposes of proceedings before the Tribunal by discovery or interrogatories may:

(a) with the leave of the Tribunal, and
(b) with the consent of:

(i) subject to subparagraph (ii), the party who originally obtained the material or the party's solicitors, or
(ii) another person prescribed by the rules,


be used in other proceedings before the Tribunal, whether or not the proceedings are between the same parties.

(2) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances.

General issues already determined

25B. (1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.

(2) In deciding whether to grant leave for the purposes of subsection (1), the Tribunal is to have regard to:

(a) the availability of new evidence (whether or not previously available), and
(b) the manner in which the other proceedings referred to in that subsection were conducted, and
(c) such other matters as the Tribunal considers to be relevant.


(3) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances or (without limitation) in relation to specified kinds of issues.

(4) This section does not affect any other law relating to matters of which judicial notice can be taken or about which proof is not required.

70    In advancing their case that it is “in the interests of justice” that the proceeding be determined in the Supreme Court of Queensland (cf Cross-vesting Act, s5(2)(b)(iii)), the defendants raised a constitutional issue about the validity of ss12A and 25B of the DDT Act in their application to the particular proceeding. It is formulated thus in the Notice of Constitutional Matter (s78B notice) given by each defendant:

Whether, consistently with the imperative of section 118 of the Constitution that full faith and credit be given throughout the Commonwealth to the laws of every State, the Dust Diseases Tribunal of New South Wales (“the DDT”) may, in determining the substantive rights of the parties to proceedings brought in the DDT in respect of tort committed in Queensland, apply certain statutory provisions enacted by the New South Wales Parliament, namely sections 12A and 25B of the Dust Diseases Tribunal Act 1989 (NSW), which are inconsistent with (respectively) the statute law and common law of Queensland.

71    The defendants invoke the recent decision in John Pfeiffer, where the High Court held that the common law choice of law rule for torts committed in Australia is that the lex loci delicti applies. The statement of claim pleads that locus to be Queensland, at least in part. It follows, the defendants submit, that for such torts it is Queensland statute law that regulates the “existence, extent or enforceability of [the parties’] rights and obligations” (John Pfeiffer at [15]). 72 Section 11 of the Limitation of Actions Act 1974 (Qld) states that:

Notwithstanding any other Act or law or rule of law, an action for damages for negligence... in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person... shall not be brought after the expiration of 3 years from the date on which the cause of action arose.

73    Section 31 of that Act provides that a plaintiff may seek an order lifting the limitation bar if:

… it appears to the court -
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation….

74    John Pfeiffer did not involve a limitation statute. Nevertheless, the Court held that the substantive law of the place of an interstate tort includes the interstate limitation statute, whether it bars the remedy or extinguishes the right (see at [35], [44], [48], [55], [99]-[100], [131]-[133], [161], [192]). The defendants are however wrong in seeing the common law as reformulated in John Pfeiffer as the juridical basis for the prima facie application of the Queensland limitation provision to a New South Wales proceeding such as the present case. In fact, it is the Choice of Law Act which brings about this result (aided by ss79 and 80 of the Judiciary Act if the court is exercising federal jurisdiction). I explain why this is so in my reasons in Brear. Also, for the reasons given in my judgment in Brear, I conclude that the Choice of Law Act imports the Queensland provisions and that s12A of the DDT Act does not provide otherwise in relation to a Queensland tort dispute litigated in a New South Wales court.
75 The defendants do not point to any Queensland enactment with which ss25(3), 25A or 25B are said to be inconsistent. But they seek to put the plaintiff to proof in Queensland where he will not be able to invoke the possibly significant advantages stemming from these provisions of the DDT Act. 76 The defendants further submit that John Pfeiffer requires the Tribunal to disregard s25B in its application to any torts occurring in Queensland. Section 25B is said to be part of the substantive law of New South Wales and, as such, inapplicable to the extent that the lex loci delicti is Queensland. The defendants invoke the test for distinguishing between substance and procedure in the choice of law context that is adopted by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer where it was said (at [99], footnote omitted) that:

… matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain , “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural and all other provisions or rules are to be classified as substantive.

See also Kirby J at [161] and Callinan J at [192].

77    In my view, the defendants’ submission misconceives John Pfeiffer. The High Court was formulating the content of a common law choice of law rule for a tort occurring in an Australian law area different from that in which the tort’s existence is to be litigated. By definition, such a common law rule will yield to a valid enactment operating in the forum. Section 25B is such an enactment and, unlike s12A, there is nothing to limit its expressed operation to local torts. (The defendants did not press their constitutional challenge to the capacity of s25B to apply to the facts at hand, although they reserved their right to do so in light of any particular decision of the Tribunal to apply that provision.) 78 In any event I would seriously doubt whether s25B would be substantive within such a test, bearing in mind its neutrally expressed, ambulatory and flexible operation. I incline to the view that this would distinguish it from the cases cited by the Chief Justice at [16] which deal with presumptions operating in a single context with an identifiable outcome discernible on their face.

Defendants’ reliance upon s118 is misconceived

79 Section 118 of the Constitution provides:

Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

80 The defendants submit that s118 prevents the New South Wales Parliament from legislating in terms which would effectively oust the application of Queensland law in relation to the causes of action sued upon by the plaintiff. In particular, s118 is said to preclude s12A of the DDT Act from displacing s11 of the Limitation of Actions Act 1974 (Qld) and s25B of the DDT Act from displacing “the common law of Queensland”. 81 There is no need to address the first submission, because s12A of the DDT Act does not have the operation feared by the defendants (see Brear). The submission would appear misconceived in any event, because John Pfeiffer goes no further than enunciating common law principles that, by definition, are capable of statutory abrogation so long as the statute conforms to constitutional norms. Furthermore, the currently accepted understanding of s118 is that it only attaches after a court has ascertained the law applicable to the particular case (see John Pfeiffer at [139] and authorities there cited). There can be no failure to give full faith and credit to an applicable Queensland statute where that is exactly the outcome derived by non-constitutional means. 82 The latter submission may be disposed of briefly. There is but a single common law of Australia (see John Pfeiffer at [15] for references). For that and other reasons, the reference in 118 to “the laws … of every State” does not encompass procedural or substantive common law rules applicable in the Supreme Court of Queensland (see Walker v Speechley, High Court of Australia, Gummow and Hayne JJ, unreported, 18 June 1999). Sections 25(3), 25A and s25B of the DDT Act do not purport to apply in Queensland. Nor are they said to displace any Queensland statutory provisions purporting to apply in New South Wales.

Should the proceedings be transferred to the Queensland Supreme Court?

83 In light of the foregoing discussion, it is possible to identify the substantive and procedural rules that will govern the proceeding if it remains in the Tribunal. The plaintiff will not escape the limitation of actions law applicable in a Queensland court, but the parties will be able to invoke any procedural and substantive advantages stemming from ss25(3), 25A and 25B of the DDT Act and any other aspects of the law and practice of the Tribunal. For better or worse, this will include the limited right of appeal to this Court granted by s32 of the DDT Act (issues of fact not appealable). 84 The decision to transfer to Queensland would have practical and financial advantages/disadvantages to the respective parties. I shall address them later. It is first necessary to consider submissions as to the general groundrules governing a case like the present where a “State matter” unrelated to any existing proceedings elsewhere is sought to be transferred pursuant to s5(2)(b) of the Cross-vesting Act.

The “interests of justice” in s5(2)(b)(iii)

85    Subject to the “may” of s8 (relating to removal into the Supreme Court), the Supreme Court “shall” transfer to another Supreme Court a removed proceeding if:

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…. (s5(2)(b)(iii))

86 Like its analogues in s5, s5(2)(b) addresses three categories of proceedings, namely (i) “related” proceedings, where proceedings between the same parties or concerning the same subject matter are pending in different superior courts; (ii) proceedings in which the transferor court’s jurisdiction is solely cross-vested jurisdiction; and (iii) proceedings, like the present, in which a duly instituted matter is perceived (usually by the defendant) to be in a forum that is not the preferred forum. 87    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 AJA 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 Corporation 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 s5(2)(b)(iii) was an essential step in the reasons of Rogers AJA, 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). (Kirby P reserved his position on the present issue: see at 716.) 88    For what it is worth, this interpretation accords with the expressed intention of the Special Committee of Solicitors-General, which drafted the cross-vesting legislation (see Annetta and Fraser, “Transfer Provisions of the Cross-vesting Legislation - the Need for Clarification” (1996) 24 ABLR 208 at 215). It has the support of Nygh, Conflict of Laws in Australia, 6th ed 1995, p92. It has been consistently followed in this State and most other States and Territories (see generally Schmidt v Won [1998] 3 VR 435 at 450 (CA); Moloney and McMaster, Cross-Vesting of Jurisdiction: A Review of the Operation of the National Scheme, AIJA 1992, pp82-90; Nygh, op cit pp91-2), with the exception of Western Australia (Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] WAR 531) and possibly South Australia (see Moloney and McMaster, op cit pp87-8, cf Pegasus Leasing Ltd v Tieco International (Australia) Ltd (1993) 61 SASR 195). 89 In Waterhouse v Australian Banking Corporation (1989) 86 ACTR 1, Kelly J of the Australian Capital Territory Supreme Court enunciated a different approach, based upon the principles of forum non conveniens declared in Oceanic Sun Line. On this approach, a court asked to consider the transfer of a category (iii) case “in the interests of justice” must be satisfied that the forum is “clearly inappropriate” before a transfer should be ordered. This, however, no longer represents the law in the Australian Capital Territory (see Dawson v Baker (1994) 120 ACTR 11, a Full Court decision). 90 The Court should adhere to this aspect of Bankinvest. If ever there was a field where consistency and comity are vital it is this one. I would add that insofar as such an approach is based upon hostility to forum shopping within Australia, it now accords with John Pfeiffer (at [64], [85]-[87], [128]-[130]) in discouraging forum shopping within Australia. (Contrast the High Court’s earlier, more accepting attitude, as recognised in Goliath Portland, a case upon which the defendants particularly rely.) 91    It may well be that the difference between the “Spiliada” approach and the “Oceanic Sun Line” approach is not as great as perceived at the time when Bankinvest was decided. I am not suggesting that there is no difference. However, cases such as Connolly v RTZ Corporation Plc [1998] AC 854 and Lubbe v Cape Plc [2000] 1 WLR 1545 show that a stay based on forum non conveniens involves much more than deciding which is the more “natural” or appropriate forum. Thus, in Lubbe, Lord Bingham of Cornhill said (at 1554) that:

… it is the interest of all the parties, not those of the plaintiff only or the defendant only, and the ends of justice as judged by the court on all the facts of the case before it, which must control the decision of the court. In Spiliada it was stated (at page 476):

"The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice."

In applying this principle the court's first task is to consider whether the defendant who seeks a stay is able to discharge the burden resting upon him not just to show that England is not the natural or appropriate forum for the trial but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is had to the fact that jurisdiction has been founded in England as of right ( Spiliada , page 477). At this first stage of the inquiry the court will consider what factors there are which point in the direction of another forum ( Spiliada , page 477; Connelly v. R.T.Z. Corporation Plc. [1998] AC 854 at 871). If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, that is likely to be the end of the matter. But if the court concludes at that stage that there is some other available forum which prima facie is more appropriate for the trial of the action it will ordinarily grant a stay unless the plaintiff can show that there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this second stage the court will concentrate its attention not only on factors connecting the proceedings with the foreign or the English forum ( Spiliada , page 478; Connelly , page 872) but on whether the plaintiff will obtain justice in the foreign jurisdiction. The plaintiff will not ordinarily discharge the burden lying upon him by showing that he will enjoy procedural advantages, or a higher scale of damages or more generous rules of limitation if he sues in England; generally speaking, the plaintiff must take a foreign forum as he finds it, even if it is in some respects less advantageous to him than the English forum ( Spiliada , page 482; Connelly , page 872). It is only if the plaintiff can establish that substantial justice will not be done in the appropriate forum that a stay will be refused ( Spiliada , page 482; Connelly , page 873).

See also Lord Hope of Craighead at 1566-7.

92    Lubbe’s Case considered the relevance of a plaintiff’s inability to obtain legal aid in the “natural” forum. Such an issue barely intruded into the present case which rose no higher than showing that the plaintiff was able to obtain a satisfactory contingency fee arrangement in New South Wales.
93    Lubbe also emphasises (at 1561, 1566-7) that forum non conveniens is not concerned with overcrowding in the forum court (see also Oceanic Sun Line at 255, Grigor). Rather, the focus must be the “private interests of any of the parties” and “the ends of justice in the case which is before the court” (per Lord Hope at 1566). 94    This approach to Spiliada fits comfortably with the more recent caselaw applying and developing Bankinvest. 95    The judgment of Higgins J (with whom Gallop J agreed) in Dawson contains a summary of the case law relating to “the interests of justice”, a reappraisal of Waterhouse (see at 22), and a useful checklist of factors relevant to the decision to order a transfer of category (iii) cases, namely:

• application of substantive law;
• forensic advantage or detriment conferred by procedural law;
• the choice made by a plaintiff or a forum and the reasons for that choice;
• substantive connections with the forum;
• balance of convenience to parties and witnesses; and
• convenience to the court system.

96    Other decisions support this broad approach to the “interests of justice” inquiry. Thus, in Bourke v State Bank of New South Wales (1988) 22 FCR 378, Wilcox J said (at 394):

In my opinion this phrase ought to be read widely. Under that rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in “the interests of justice” to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation.

97    See also Pegasus Leasing Ltd v Tieco International (Australia) Pty Ltd (1993) 61 SASR 195 and Bissett v Goliath Portland Cement Co[1999] VSC 145.
98 There remains a liberality about the Australian decisions under the Cross-Vesting Act compared to the recent English cases on forum non conveniens. However, to a considerable degree the Australian cases reflect the relative ease of transport and communication within Australia. There is also recognition that legal and cultural differences in the practice of law from law area to law area within Australia are relatively insignificant (see Pegasus Leasing at 199-200 per Debelle J). 99 It follows that the plaintiff’s choice of the Tribunal and the reasons for it, both substantive and procedural, are relevant considerations. 100 One aspect of Bankinvest which has puzzled later courts is the statement by Rogers AJA (with which Street CJ definitely agreed and Kirby P probably agreed) that it is inapt to speak of any onus resting upon the applicant for transfer (see at 726-7). Such a sentiment may be understandable where transfer is ordered on the Court’s own motion. However, like others I find it elusive in the context of a contested proceeding inter partes. If one views the exercise as one of judicial discretion according to proper principle, then it is natural to regard the applicant for particular relief as carrying at least the persuasive onus (see Bourke at 395-6, Chapman v Jansen (1990) 100 FLR 66 at 94, Dawson at 18, Hoddell v Hoddell Pty Ltd [1999] WASC 156 at [18], Nygh, op cit p92). Fortunately, “onus” will seldom if ever be determinative at the end of the day.

The respective contentions as to the more appropriate forum

101 In urging transfer, the defendants point to Queensland as the place of (or some at least of) the alleged torts. The plaintiff points to the local torts which he hopes to establish. The significance of such considerations is drastically reduced when it is recognised that the common law of Australia will (by definition) be the same in Queensland as in New South Wales, and that the only Queensland statute invoked by the defendants (the Limitation of Actions Act 1974 (Qld)) will govern much of the proceedings, for the reasons indicated in Brear. The present case is therefore quite different from cases involving overseas law in which the High Court said that “the substantive law of the forum is a 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” (Henry v Henry (1996) 185 CLR 571 at 589, quoting Oceanic Sun Line at 566). 102    The defendants next rely upon a series of Queensland connecting factors, some of which the plaintiff disputes. The plaintiff in turn advances various New South Wales connecting factors, some of which the defendants dispute. Based upon the material proved in several affidavits, an informed hypothetical dialogue about these matters might proceed as follows:

Defendants: You reside in a Brisbane suburb.

Plaintiff: True, but that has no bearing on our respective legal rights. How can you complain that I choose to litigate in Sydney?

Defendants: You allege exposure to asbestos dust and fibre in Queensland and your two treating doctors practice in Brisbane. Some of our experts are from Queensland. Your Queensland residence means that issues involving economic loss, nursing, attendant care and domestic assistance are all going to involve mainly Queensland witnesses and documents in Queensland. This will cause inconvenience and cost.

Plaintiff: When you nominated a Brisbane medico-legal expert I attended his surgery as requested. I dispute that there is a likely preponderance of Queensland witnesses as matters presently appear. The potentially time-consuming dispute concerns the competing hypotheses of causation of lung cancer. If my s25B application based on the conclusions in McDonald’s Case fails, most if not all of the witnesses (on both sides) that would be called upon to debate afresh the two theories discussed in McDonald’s Case are from outside Queensland. The two expert witnesses who have been qualified for this matter by my solicitor, Dr Francis and Dr Leigh, are from New South Wales. Your two main experts are from the United States.

As regards Queensland witnesses, the Tribunal can and regularly does travel outside New South Wales (see s13(7) of the DDT Act ). The Tribunal sits in Brisbane on a number of occasions each year for a week at a time to hear all Queensland-based witnesses in pending matters.
It can reasonably be expected that general evidence for the defendants about place and method of manufacture, packaging and warnings has been gathered and used in the many cases you have already litigated in the Tribunal, many of them Queensland-based. The defendants have been sued for similar claims on many previous occasions. For James Hardie, instructions are given by the same in-house litigation lawyer (Ms Burtmanis) for all jurisdictions in Australia, including New South Wales and Queensland.


Defendants: If the Tribunal sits in Queensland, a Sydney-based legal team has to travel there and this adds to the cost. There are barristers and solicitors practising in Queensland who could handle your case and who would do so if it had been commenced in Queensland.

Plaintiff: Maybe, but there are also plenty in New South Wales and I have chosen my present legal representatives for my own legitimate reasons. They have experience in this field of litigation. You have engaged competent Sydney legal representation. You are free to engage Sydney medico-legal experts. If you want to use Queensland lawyers or doctors you are free to do so.

Any cost differential as regards travelling and accommodation of witnesses and lawyers will be more than compensated for with savings due to the Tribunal’s powers under ss25(3), 25A and 25B of the DDT Act .
Mr Hill’s affidavit (filed by the defendants) discloses that in the period 1998-2000, of asbestosis claims with a Queensland connection, 33 have been brought in the Tribunal compared to 16 in Queensland courts. There was a contrary trend in 1994-1997. None of the Queensland cases has yet come to trial. By contrast, the Tribunal has extensive expertise in hearing and deciding asbestos-based claims. This will also speed up the hearing. With my life expectancy time is important. I don’t want to be spending it all litigating.


Defendants: It would appear that at least some Queensland plaintiffs are litigating in New South Wales because they are attracted by “no win no fee” advertisements in Brisbane papers placed by Sydney-based law firms such as Turner Freeman and Slater & Gordon.

Plaintiff: What is wrong with that? The important thing is that I wish to use my chosen solicitor in accordance with the remuneration terms and conditions we have negotiated. You have not pointed to evidence showing that Queensland lawyers would do so on the contingency fee arrangement I have negotiated. The defendants are well-organised corporations that can and do access Sydney-based lawyers, doctors and scientists as they wish.

103    As indicated, there is a medical and scientific controversy concerning the relationship between asbestos exposure and lung cancer. One theory (“the necessary precursor hypothesis”) contends that asbestosis or lung fibrosis is a necessary precursor to a finding of asbestos related lung cancer. An alternative hypothesis (“the fibre burden hypothesis”) contends that asbestos can cause or contribute to the onset of lung cancer so long as the claimant’s cumulative burden of exposure to asbestos is significant, customarily measured in terms of fibre ml years. According to the fibre burden hypothesis, the presence or absence of radiological signs of asbestosis or indeed asbestos-related pleural stigmata such as pleural plaques is not determinative. 104    In previous cases in the Tribunal, the present defendants have each denied a relationship of causation between lung cancer and asbestos where (as in the present case) asbestosis or lung fibrosis has not been detected radiologically. In these circumstances the defendants have argued the correctness of the necessary precursor hypothesis. If the precursor hypothesis is correct, then the defendants will probably not be liable to persons such as the plaintiff whose x-rays reveal no evidence of asbestosis. 105    In McDonald v State Rail Authority (NSW) & Ors (1998) 16 NSWCCR 695 twenty nine hearing days of the Tribunal were occupied to determine a claim where, in the words of the trial judge (Judge O’Meally), “the principal question … [was] whether lung cancer may be caused or materially contributed to by asbestos exposure in the absence of asbestosis”. James Hardie was the primary protagonist for the precursor hypothesis in that matter. His Honour heard from experts of international and national eminence with between 3/5ths and 4/5ths of the hearing time related to the issue of “general causation”, namely the controversy between the necessary precursor hypothesis and the fibre burden hypothesis (see McDonald v James Hardie & Coy Pty Ltd (No 2) (1998) 17 NSWCCR 178 at 191). There was ultimately a verdict for the defendant in McDonald’s Case because the proven level of Mr McDonald’s exposure did not exceed that assumed as sufficient in the evidence of the experts. 106 Mr Fowlie is a partner of Slater & Gordon and he has the day to day conduct of the plaintiff’s proceeding in the Tribunal. He has been involved with asbestos litigation in the Tribunal since about 1996. Through Mr Fowlie, the plaintiff foreshadows his intention to invoke the abovementioned provisions of the DDT Act in order to limit the time and expense of revisiting this controversy de novo. The corpus of evidence previously given to the Tribunal in McDonald’s Case would (if necessary) be tendered pursuant to s25(3) of the DDT Act. Section 25B of the DDT Act will be also invoked by the plaintiff in an endeavour to preclude the relitigation of the issue of “general causation”. With these procedural advantages, it is expected that the proceeding in the Tribunal is unlikely to exceed four hearing days. This is a vast shortening of time, if the length of the trial in McDonald’s Case is any indication. Without the necessity to ventilate issues pertaining to general causation, the central issue in the plaintiff’s claim will be whether the level of the plaintiff’s past exposure to asbestos dust and fibre is sufficient to satisfy the requirements of the “Helsinki criteria”.

Conclusion: the “interests of justice” favour refusal of transfer

107    I am not persuaded that it is in the interests of justice to transfer this proceeding to the Supreme Court of Queensland. 108    I shall deal only with matters urged by the parties which carry weight in my mind as to the calculus of more appropriate forum. I therefore exclude entirely the place of the defendants’ registered addresses (New South Wales) or the inconclusive contest as to whether the Supreme Court of Queensland could match or better the general powers of the Tribunal as regards pre-trial procedures, taking evidence by video conference, expedition of hearing and the like. My conclusion in Brear also neutralises any advantage to the plaintiff in seeking to escape the Queensland limitation law applicable to such of the torts as turn out to be Queensland torts. The High Court has declared that the common law in New South Wales is at all times the same as in Queensland, so nothing turns upon where the tort or torts occurred as regards the parties’ substantive rights or the ability of either court system to determine them fairly. 109    I shall concentrate on what appear on the evidence to be fairly clear points of distinction between the procedures and powers of the Tribunal compared to those of the Supreme Court of Queensland. There are other claims, most of them disputed, as to procedural and practical differences between the specialist tribunal on the one hand and the Supreme Court of Queensland on the other. Comparisons of this nature are very difficult to gauge and the whole enquiry 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 parties would not get “substantial justice” according to law in Queensland (cf Spiliada at 482). The most that one can say is that the Tribunal has extensive trial experience in these matters and that this should further assist despatch; whereas (on the evidence) the Supreme Court of Queensland has yet to hear any contested asbestos matter. I have therefore determined to consider the aspect of the interests of justice involving the issue of “more appropriate forum” by confining myself to the statutory provisions found in the DDT Act which have no Queensland counterpart. 110 I shall of course weigh on the side of the balance such Queensland “advantages” as are established to my satisfaction by the evidence. These include avoidable costs now attributable to the need to prepare for trial in Sydney and probably in Brisbane in circumstances where there is a Brisbane predominance of witnesses involved specifically with the plaintiff, such as the plaintiff’s treating doctors. 111 In light of the live issue of general causation, leaving the case in the Tribunal will significantly benefit the interests of justice generally. Each party and the judicial system of Australia taken as a whole will benefit from the savings directly attributable to the powers which the Tribunal has, but the Supreme Court of Queensland lacks, to allow evidence tendered in earlier proceedings to be tendered in the instant proceeding, subject to necessary procedural safeguards. This will dramatically shorten the proceedings even if s25B is not invoked. 112 In my view, the unique procedural powers of the Tribunal are relevant and significant in the task of determining the more appropriate forum in the ultimate quest for what is in the “interests of justice”. They are not mere forensic advantages to one party that represent a comparable disadvantage to the other party (cf Spiliada at 482ff). They are also factors to be weighed against transfer insofar as they have the clear capacity to assist both the defendants and the judicial system of Australia in the just, quick and cheap resolution of the present dispute. In Grigor’s Case I said (at 43):

With some hesitation, I regard s25(3) of the Dust Diseases Tribunal Act 1989 as offering more than a mere legitimate personal or juridical advantage to the plaintiff: cf Voth (at 571); Esanda Finance Corporation Ltd v Wordplex Information Systems Ltd (1990) 19 NSWLR 146 at 156. The potential savings of time and cost offered by this provision are significant, even if used with proper circumspection and close attention to the defendants’ right to insist on clear prior indication of the particular use to be made of the voluminous s25(3) material that is often tendered. So long as the power is fairly used it cannot, in my opinion, be viewed as a source of prejudice to one party over another. Since s25(3) is a matter of procedure it is, I consider, appropriate to take it into account in focussing on “the advantages arising from the continuation of the proceedings in the selected forum” (which is acceptable: Voth (at 559): see also (at 571) while avoiding “assessment of the comparative procedural or other claims of the foreign forum” (which is not: ibid).
Beazley JA agreed.

113    The defendants have disclosed that in the event that there were a full-scale contest in Queensland about the comparative merits of the necessary precursor hypothesis and the fibre burden hypothesis, they will call the same key witnesses as those called in McDonald. These both reside in the United States: Professor Emeritus Weill (from New Orleans) and Professor McLaughlin (from Baltimore). In McDonald, oral evidence supporting the fibre burden hypothesis was given by Professor Henderson (South Australia) and Dr Leigh (Sydney) as well as by an oncologist and a thoracic physician whose address is not stated in the judgment (see 16 NSWCCR at 700). To the extent that the defendants want the present case to be a re-run of McDonald there is therefore a preponderance of convenience in favour of Sydney as the primary trial forum even if ss25(3) and 25B were not invoked.
114 Each side has frankly addressed the advantage/disadvantage of applying s25B of the DDT Act to the findings on general causation embodied in Judge O’Meally’s extensive reasoning in McDonald. The ostensible juridical advantage to the plaintiff stemming from s25B and its possibilities in the present case is the direct mirror of the defendants’ ostensible disadvantage. But the tables are reversed entirely if one hypothesises trial in Queensland. This suggests that the correctness or otherwise of McDonald is not part of the equation for or against transfer (see Spiliada at 482). It is also important to point out that the defendants have not argued that McDonald was wrongly decided in fact or law, or that they would be denied a fair opportunity to contest its conclusions on the general causation issue. If there is fresh material and genuinely fresh arguments then it should be presumed and expected that s25B will be correctly and fairly applied (cf esp s25B(2)). 115 Why then, should this Court assume that McDonald is wrongly decided, or that a judge of the Supreme Court Queensland would not reach a similar result if the proceeding were transferred? The defendants want to call the same two American witnesses that they relied upon in McDonald. If they or any other witness has useful new light to cast upon the competing hypothesis, then it will be open for them to seek appropriate leave of the Tribunal. They are free to apply to have the present proceeding heard by a judge other than O’Meally P (cf Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 74 ALJR 68). They are free to challenge or limit the application of s25B. I hasten to add that I am doing no more than suggesting courses of action that are open. I intend to infer no attitude either way on any of the matters addressed in this paragraph. 116 Sections 25(3), 25A and 25B of the DDT Act are therefore very relevant to the interests of justice. They offer a significant possibility that substantial savings of time and cost would ensue if the proceeding remains in the Tribunal. In my view, they more than neutralise the countervailing factors of disruption to Queensland witnesses and additional expense which favour the defendants (only slightly, in view of the Tribunal’s practice of hearing evidence in Brisbane regularly). 117 It is also relevant, but not determinative, that this application is made at a stage in the proceedings where both sides have invested considerable resources in the proceeding on the basis that it takes place in the Tribunal. The plaintiff’s solicitors do not have an office in Queensland and they have retained Sydney-based medical and legal assistance. To transfer the proceedings at this stage would therefore severely disadvantage the plaintiff. The defendants are also well-equipped to contest the matter in its present forum. I have not overlooked the fact that James Hardie gave early notice of its intention to make this application. However, time has moved on, as a growing number of difficult test-case issues were thrown into the basket of the present applications. 118 The applications should be dismissed with costs. 119 PRIESTLEY JA: I agree with Mason P subject only to the following observations. 120 In pars 79-82 of his reasons, Mason P deals with the defendants’ argument based on s 118 of the Constitution. As first put to the court this argument had two branches. One was that s 118 precluded s 12A of the DDT Act from displacing s 11 of Queensland’s Limitation of Actions Act. The second branch was that s 118 precluded s 25B of the DDT Act from displacing “the Common Law of Queensland”. 121 As to s 12A, my opinion is that for the reasons given by Mason P, that section does not displace the operation of s 11 of Queensland’s Limitation of Actions Act so far as that Act governs torts occurring in Queensland. There is thus no need to consider the possible relevance of s 118 of the Constitution in regard to it. 122 As to s 25B, the defendants partly drew back, in the course of their oral argument, from their submission: see par 12 of Spigelman CJ’s reasons and par 77 of those of Mason P. If I understand the concession correctly, it probably relieves the court of considering this branch of the argument. However, I think that in any event the submission has difficulties, which I will indicate. 123 If s 25B is procedural the submission must fail, since it is accepted that the law of the forum would then apply and there could be no breach of s 118. On the other hand, if s 25B is substantive, as the defendants argued, different considerations might apply. Both for the reasons given by Spigelman CJ (par 16) and on the basis of what was said in the joint reasons of the majority in the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 74 ALJR 1109, about the substantive/procedural distinction (at pars 98-100 and 102) I am inclined to think that s 25B is more likely to be a substantive provision than a procedural one. 124 Even on the footing that s 25B is substantive I do not think the defendants’ s 118 argument should succeed. The High Court has held that there is a single common law of Australia (John Pfeiffer par 15, and cases there footnoted), so that the common law in Queensland is the common law of Australia (except as changed by statute in Queensland: see eg John Pfeiffer, par 16). 125    Also in John Pfeiffer (at par 66) there was reference to and adoption of what had been said in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, at 562, to the effect that there was a single system of jurisprudence in Australia constituted by the Constitution, Federal, State and Territory laws and the common law of Australia. It would seem from this that the High Court takes the view that when s 118 of the Constitution speaks of full faith and credit being given “to the laws, the public Acts and records, and the judicial proceedings of every State” the words “the laws” do not include the common law of Australia to the extent that it remains operative in any State or Territory. Thus, again, there could be no breach of s 118. 126 Once s 118 is set to one side, then notwithstanding the (probably) substantive nature of s 25B, I follow the same line of reasoning as the Chief Justice to the conclusion reached by Mason P that the defendants’ application to transfer the proceedings should be refused.

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