Latz v Hansen Family Investments (Ruling)

[2005] NSWDDT 34

Dust Diseases Tribunal

of New South Wales

CITATION:	Latz v Hansen Family Investments (Ruling) [2005] NSWDDT 34
PARTIES:	Robert Douglas Latz (Plaintiff) Hansen Family Investments Pty Ltd (Formerely known as Hansen & Yunken Pty Ltd (In Liquidation) (First Defendant) Regit (No 2) Pty Ltd (Formely known as Hansen & Yunken (SA) Pty Ltd (In Liquidation) (Second Defendant)
MATTER NUMBER(S):	109/05
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:- Application for adjournment - case part heard - damages only issue - application for special leave to Hight Court Of Australia in similar case - leave application irrelevant to current proceedings - adjournment refused
LEGISLATION CITED:	Jurisdiction Of Courts (Cross-Vesting) Act, 1987 Dust Diseases Tribunal Act, 1989; s 25(3), s 24A, s 25B
CASES CITED:	BHP v Utting and Anor [2005] NSWSC 260; BHP v Schultz [2004] 78 at 91 [27]
DATES OF HEARING:	16 May 2005
EX TEMPORE JUDGMENT DATE:	05/16/2005
LEGAL REPRESENTATIVES:	M J Joseph (SC) instructed by Alex Stuart & Associates appeared for the plaintiff J A Jobson instructed be Mculloch & Buggy appeared for the defendants

JUDGMENT:

RULING

O'MEALLY P

1. On 3 May last I travelled to the home of the plaintiff at 108 Military Road, Henley Beach South, a suburb of Adelaide in the State of South Australia and received the evidence of the plaintiff, Robert Douglas Latz. Mr Latz, as is now admitted, is suffering from malignant mesothelioma. He is expected soon to die. The factor influencing me to travel to South Australia on the day following the application to do so was that Mr Latz was then struggling with shortness of breath, was on oxygen 24 hours a day and when seen by Dr Keefe, whose report formed the basis of the application, was at a stage where he would soon not be able to give evidence and might die at any time.

2. On 10 May 2005 Hall J in the Supreme Court of New South Wales refused the defendants' request that the proceedings be cross-vested to the Supreme Court of South Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act, 1987. The following day his Honour dismissed an application for a stay of that order.

3. Today the defendants appear and request that the resumption of the hearing of the plaintiff's action be postponed until after 27 May next. 27 May 2005 is the day upon which the High Court of Australia will be asked to grant special leave to appeal against the refusal to cross-vest by Simpson J in BHP v Utting and Anor [2005] NSWSC 260. That was a case similar to the present in that, even though Mr Utting alleged he was suffering malignant mesothelioma as a result of negligent acts and omissions committed and suffered wholly within the State of South Australia, he initiated proceedings for damages in this Court. Her Honour declined to cross-vest the proceedings to the Supreme Court of South Australia.

4. In BHP Billiton v Schultz (2004) 2DDCR 78 at 91 [27] Gleeson CJ McHugh and Heydon JJ said:

We do not doubt that, in the case of Junic , it was entirely appropriate for Sully J to take into account the plaintiff's short life expectancy, and the prospect of expedition in the Tribunal.

Further at [28]:

There are two further matters that should be mentioned. For the reasons given by the Court of Appeal in James Hardie & Co Pty Ltd v Barrie , Sully J was right to attach importance to the procedural and evidentiary advantages offered to all parties in the Tribunal. .... Additionally, his Honour was entitled to have regard to the Tribunal's specialisation and expertise.

5. Since the applications were heard and refused by Hall J the defendants have satisfied themselves and have admitted that the plaintiff does suffer from mesothelioma. They also admit they were in breach of the duty of care they owed to him. I have been informed by counsel appearing for the defendants on this application that the only issue now requiring determination is that of damages. As I have been informed by Mr Jobson, the High Court of Australia will be asked in Utting to grant special leave so that an authoritative expression of opinion upon the character (that is whether substantive or procedural) of s 25(3) (which authorises the Tribunal to receive historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in earlier proceedings before the Tribunal), s 25A (which authorises the use of discovery and interrogatories given and answered in one case to be used in another) and s 25B (which prohibits without the leave of the Tribunal the relitigation of issues of a general nature determined in earlier proceedings in the Tribunal) might be given.

6. In view of the fact that the only remaining issue to be determined in these proceedings is that of damages, the prospects of the High Court of Australia expressing views relevant to these proceedings is non existent. Ss 25(3), 25A and 25B do not fall for consideration or application in these proceedings and, in view of the issue to be determined, there is no need either for the plaintiff or for the defendants to invoke them. Accordingly, this application should be dismissed.

7. Application for adjournment refused. The Defendants are to pay plaintiff's costs of today as agreed or assessed.

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

Mr J A Jobson instructed by McCulloch & Buggy appeared for the Defendants