Laurent v Unilever Australia Ltd
[2017] VSC 527
•5 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 01203
| KENNETH MARTIN LAURENT | Plaintiff |
| v | |
| UNILEVER AUSTRALIA LTD (ACN 004 050 828) | Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August 2017, 4 September 2017 |
DATE OF JUDGMENT: | 5 September 2017 |
CASE MAY BE CITED AS: | Laurent v Unilever Australia Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 527 |
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PRACTICE AND PROCEDURE – Application for evidence to be taken overseas – Elderly Plaintiff diagnosed with mesothelioma allegedly caused by inhalation of asbestos in the course of employment in Victoria – Plaintiff ordinarily resident overseas – Whether video link of evidence on commission is appropriate – Interests of justice in giving evidence on one occasion only - Section 7 of the Foreign Evidence Act 1994 (Cth) – Sections 7 and 9 of the Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms B Knoester | Adviceline |
| For the Defendant | Dr S Keeling | Moray & Agnew |
| For the Third Party | Mr S Smith | Mills Oakley |
HIS HONOUR:
Introduction
Kenneth Laurent is 78 years of age and is dying of mesothelioma. In a proceeding in this Court he sues the defendant, Unilever Australia Ltd (Unilever), on the basis that his exposure to asbestos in 1961 at its premises in Port Melbourne is a cause of his contraction of the disease.
A dispute has arisen about how evidence should be taken in the proceeding: Mr Laurent lives on the Isle of Jersey (in the English Channel, about 25 kilometres or so from the French coast) and most of the witnesses to be called in his case reside in Jersey and in the United Kingdom. Accordingly, Mr Laurent has applied for the taking of his evidence and that of his witnesses in Jersey, under the provisions of the Foreign Evidence Act 1994 (Cth) (FEA).
Unilever opposes the making of such an order – or at least the making of it at the present time. It says that it would be preferable, at least initially, to take Mr Laurent’s evidence on commission by video link and then – and only then – if the case has not settled, make orders under the FEA. Unilever submits that such a course is consistent with the provisions of the two relevant pieces of legislation, the FEA and the Civil Procedure Act 2010 (Vic) (CPA).
Whilst I accept that questions of cost and efficiency may be relevant on such an application, the real question is whether, in the context of the history of the case and Mr Laurent’s circumstances, the proposed ‘halfway house’ contended for by Unilever is truly in the interests of justice. For the reasons I will now set out, it is not.
Mr Laurent’s evidence should be taken only once and in Jersey, as should the evidence of his witnesses residing in Jersey and the United Kingdom.
The relevant pieces of legislation
Part 2 of the FEA deals with the examinations of witnesses abroad and Division 1 is concerned with the proceedings in superior courts. Section 7 reads as follows:
7 Orders for taking evidence abroad
(1)In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:
(a)for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or
(b)for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or
(c)for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.
(2)In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:
(a)whether the person is willing or able to come to Australia to give evidence in the proceeding;
(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c)whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.
Judges in this State have, on a number of occasions, made orders under these provisions. I did so in 2015 in Tamaresis v CSR Ltd.[1]
[1][2015] VSC 47 (23 February 2015) [49].
The relevant provisions of the CPA, relied upon by Unilever, are as follows:
7 Overarching purpose
(1)The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
(2)Without limiting how the overarching purpose is achieved, it may be achieved by —
(a)the determination of the proceeding by the court;
(b)agreement between the parties;
(c)any appropriate dispute resolution process—
(i)agreed to by the parties; or
(ii)ordered by the court.
9Court’s powers to further overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a)the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c)the efficient conduct of the business of the court;
(d)the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i)the fair and just determination of the real issues in dispute; and
(ii)the preparation of the case for trial;
(f)the timely determination of the civil proceeding;
(g)dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii)the amount in dispute.
(2)For the purposes of subsection (1), the court may have regard to the following matters—
(a)the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;
(b)the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d)the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
(g)the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
(h)the extent to which the parties have had the benefit of legal advice and representation.
(3)This section does not—
(a)limit any other power of a court to make orders or give directions; or
(b)preclude the court from considering any other matters when making any order or giving any direction.
I should also refer to rule 41.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules), which enables the court to make an order for:
(a)the examination of any person before a Judge of the Court or an Associate Judge or such other person as the Court appoints as examiner at any place whether within or out of Victoria; or
(b)the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
Procedural background
The proceeding was commenced by writ issued on 4 April 2017 and served on Unilever on 7 April 2017.
On 16 May 2017 an application by Unilever to dismiss the claim pursuant to s 18 of the CPA was filed. That application was discontinued at the hearing on 26 May 2017.
The Statement of Claim was filed on 23 May 2017 (with an amended version filed on 28 August 2017) and defence filed on 8 June 2017.[2]
[2]Defence dated 5 June 107 and filed on 8 June 2017.
Mr Laurent filed Further and Better Particulars on 19 June 2017.
On 26 May 2017 Clayton JR made orders including the following:
15. The Plaintiff be granted leave to be examined on oath before an examiner to be nominated by the Court. Such examination to occur at a time and place to be agreed upon by the parties, subject to the Plaintiff’s health condition and whereabouts. The examination be videotaped and the admissibility of the videotape be reserved for the direction of the trial judge. At the time the Plaintiff is examined, the Defendant be granted leave to cross-examine the Plaintiff.
Mr Laurent and Unilever filed Interrogatories on 30 June 2017 and 10 July 2017 respectively. Answers to Interrogatories were filed by Mr Laurent on 28 July 2017 and by Unilever on 4 August 2017.
A pre-trial conference was held on 21 August 2017.
An Amended Statement of Claim was filed on 28 August 2017.
Unilever joined Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) as a third party to the proceeding on 28 August 2017.[3]
[3]Summons filed on 24 August 2017.
Consideration
There are several matters which were not in issue between the parties:
(a)that Mr Laurent’s condition precluded him from giving evidence at trial in this State;
(b)that Mr Laurent’s evidence was material; indeed it would be fair to say it is vital to the determination of the proceeding;
(c)that it was practical to arrange a video link facility at a Jersey venue, about seven kilometres from Mr Laurent’s home.
Mr Laurent’s pleaded case can be summarised as follows:[4]
(a)He was employed by Gardner Bros Ltd, a New Zealand company, and as part of that employment repainted industrial pipes in 1961 at Unilever’s factory in Ingles Street, Port Melbourne.
(b)In the course of sanding, cleaning and painting the pipes he was exposed to and inhaled asbestos dust and fibres given off from the pipes which were lagged with asbestos.
(c)This exposure led to him contracting malignant mesothelioma which was diagnosed in September 2016.
(d)That Mr Laurent’s damages include allowances for pain and suffering, past and future medical expenses, past and future care as well as a claim for the cost of the replacement for his care of his wife, who is suffering from multiple illnesses.
[4]Amended statement of claim 16 August 2017.
A Joint Issues Statement was filed on 29 August 2017 by the parties at my direction which identified the matters in dispute as follows:
1)The factual basis of the identification of the Defendant by the Plaintiff.
2)Proof of the Plaintiff’s exposure to asbestos dust and fibre in a factory occupied by the Defendant in 1961.
3)Breach by the Defendant of its duties as an occupier to the Plaintiff.
4)Causation in regard to asbestos dust and fibre causing the Plaintiff to suffer from mesothelioma with a lag period between exposure and mesothelioma of approximately 55 years.
5)In the event of the Defendant being held to be liable for the Plaintiff’s injuries, quantum of damages and costs.
The lawyers for Mr Laurent and Unilever filed Affidavits relating to the costs and practicality of taking evidence in the manner proposed by Unilever.[5]
[5]Affidavit of Bree Knoester sworn 25 August 2017; affidavit of Bruce Cranston Butler sworn 30 August 2017.
Ms Knoester, the solicitor for Mr Laurent, in her affidavit supporting the application to take evidence under the FEA,[6] says that Mr Laurent proposes to call six witnesses residing in Jersey (himself, his wife and daughter, and three treating medical practitioners) and two witnesses (a nurse and Mr Laurent’s daughter) who live in the United Kingdom and can readily travel to Jersey.
[6]Affidavit of Bree Knoester sworn 22 August 2017.
Unilever’s medical expert (Mr Gillon-Moore) will be able to travel from the United Kingdom to Jersey to give evidence.
One other matter should be mentioned here. Mr Laurent’s lawyers, Adviceline, submitted that (in the event that a video link is ordered) a solicitor employed by the firm travel to Jersey to assist Mr Laurent in his preparation for giving evidence. This was opposed by Unilever.
A firm of Jersey lawyers, Viberts House, originally received instructions from Mr Laurent and appear to have managed some parts of his case (i.e. taking instructions and communicating with Mr Laurent). According to Mr Butler, the solicitor for Unilever, the Viberts House website contains the following information:
a)Viberts is a firm with seven partners, 24 solicitors and 17 support staff;
b)‘Viberts has had numerous successes in a vast range of personal injury matters over the past year in the Channel Islands. We have recovered almost £1 million in compensation for injured parties. We have achieved six figure settlements for members living with asbestos related diseases, leaving them safe in the knowledge that their families will be provided for if the worst happens’;
c)Viberts holds itself out to act in asbestos-related disease claims;
d)‘Viberts is preferred counsel for large international insurance companies, Unions and individuals seeking to make personal injury claims’;
e)Ms Corinne Holmes, a solicitor employed by Viberts:
‘Corinne settles cases worth hundreds of thousands of pounds every year and has become one of the “go to” authorities for personal injury claims in Jersey’; and
f)Viberts has two litigation partners who are “advocates” in the Jersey legal system have rights of audience to represent clients in all courts.
I accept that there is, on its face, some merit in Unilever’s suggestion of taking Mr Laurent’s evidence by video link in the next couple of weeks or so and then seeing whether the case can be resolved before embarking for Jersey. I also accept that the cost of the exercise as deposed to by the solicitors are not disproportionate and might lead to a resolution of the proceeding.
I am also satisfied that it is not necessary for an Adviceline solicitor to travel to Jersey to assist Mr Laurent. He has a relationship with Viberts House and their employees have experience in asbestos claims.
However, for the following reasons I am not convinced that taking the evidence on commission by video link will produce any real savings (as to cost and time) and, more importantly, the interests of justice make it preferable that the evidence of Mr Laurent and his witnesses be taken in Jersey.
First, this case has an unusual history, which makes me pessimistic about the prospects of an early settlement, even after the taking of evidence of Mr Laurent by videolink. There is no suggestion that liability will be admitted – indeed, to the contrary, Unilever’s first step in the proceeding was to make an application to have the proceeding dismissed on the grounds that there was no proper basis for Mr Laurent’s claim, as required by s 18 of the CPA.[7] That application was withdrawn – but only after Mr Laurent had filed an affidavit deposing as to his alleged exposure at Unilever’s premises.
[7]Summons filed 16 May 2017.
Then, after the interlocutory steps were completed, the case was the subject of a formal pre-trial conference supervised by a representative of this Court. It did not resolve.
The Joint Issues Statement makes it clear that every issue in the case will be ventilated at trial.
Second, as the Joint Issues Statement demonstrates (points 1 and 2), this claim turns very much on the evidence of Mr Laurent. As currently advised, he is the only witness who can speak as to his exposure. There is no one else. Assuming that Unilever maintains the approach it adopted at the commencement of the proceeding, his word will be hotly in issue. To this there is the addition by Unilever of Amaca as a party to the proceeding. Amaca also seeks to cross-examine Mr Laurent, presumably as to the nature of exposure and identification of the products used by Unilever. I readily assume that this will be another contested matter.
For my part, endeavouring to determine this case (and the third party proceeding) on the challenged testimony of a 78-year-old man by videolink causes me considerable concern, especially when it is practicable to take his evidence “in the flesh”.
Third, the emphasis by Unilever on efficiency and cost-saving (s 9 of the CPA) ignores the critical commencing words of s 9(1)(a) of the CPA – ‘the just determination of the civil proceeding’. I see no reason why, what is a speculative cost-saving measure, should in some way compromise the ability of Mr Laurent to give evidence on one occasion only. Far from disadvantaging Unilever, such a course will enable it to confront Mr Laurent face-to-face (via its counsel) in its endeavour to establish that he has not made out his case. The vast majority of trial advocates that I know would much prefer this opportunity.
It is true, as Unilever submitted, that courts these days embrace the use of technology, in particular that of video link, which has improved greatly since it was first trialled in courts in this State. Courts routinely make orders under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic). Many cases in country circuits (and indeed in Melbourne) have a considerable body of evidence given by this means. I also accept that the improvements in technology mean that, in the main, such evidence is not diminished to any significant extent by it being given by videolink.
On the other hand, as I have just mentioned, courts traditionally have been reluctant to make such orders where the critical evidence underpinning the determination of the proceeding involves the credibility of a central witness. This, it appears, is just such a case.
Fourth, Mr Laurent’s present medical condition is, it would appear, precarious. He is 78 years of age and last year underwent inpatient psychiatric care after a suicide attempt. He also, in the past, suffered from what appears to have been a significant low back injury. He cares for his wife, who suffers from multiple medical conditions which confine her walking ability ‘to approximately 100 yards’.
In my opinion it is important that he only give evidence on one occasion. The taking of his evidence on commission means there is still a real prospect that he may have to give evidence twice. This, I consider, is unfair, in light of his medical condition.
Finally, and in my view decisively, at the heart of this application lies a misunderstanding of the basis of taking evidence on commission under order 41 (whether in person or by video link prior to the trial). The orders made by Clayton JR[8] were typical of orders made in this state in cases such as these. The fundamental purpose of taking the evidence of a witness in a terminal disease case prior to the trial is to ensure that that witness’s evidence is preserved and that each party has the opportunity to question the witness at a time when he or she is capable of giving a lucid account of events relevant to both liability and quantum. Admittedly, a peripheral benefit of taking evidence on commission is the ability of the parties to gauge the quality of that evidence and then endeavour to settle the proceeding. But to elevate that benefit to effectively give Unilever (or any other defendant) a ‘dry run’ prior to trial is not a proper purpose for the exercise of the discretion under order 41.
[8]See order of Clayton JR, 26 May 2017.
Unilever, like any other defendant, must meet the plaintiff’s case as it is presented at trial. If the Court accepts that Mr Laurent cannot travel to Australia, then the provisions of the FEA are available to ensure that a fair trial takes place and that evidence is taken overseas. It does not mean that Unilever is entitled to a preview of the quality of Mr Laurent’s evidence.
If Unilever’s argument was accepted, then in virtually every case where there was a disputed factual issue, a party would be able to argue that the evidence be given and tested before trial as it might assist in negotiations. Simply put, that is not the way in which trials in this State operate. Such is clear from rule 40.02 of the Rules, which requires the evidence at trial to be given orally in a case commenced by writ.
It may of course have been different if, as in jurisdictions of the United States of America, parties were entitled to depose witnesses to be called by other parties. But here, such a practice is not contemplated by the Rules, and it would only be in the most extraordinary of circumstances, I suggest, that such an order be made under the CPA – if it be open.
Conclusion
The end result is that Unilever’s application to take evidence on commission of Mr Laurent by videolink should be dismissed and the application made by Mr Laurent for the taking of evidence in Jersey under s 7 of the FEA be granted. I am satisfied that the conditions of s 7(1)(a) of that Act are made out and, particularly, that the interests of justice are better served by the making of the order.
Mr Laurent’s lawyers should file a final list of medical and other expenses both to date and as anticipated into the future, as well as details of any other claim to be made at the trial.
The parties have agreed to an even split of initial payment of the costs of the Court’s expenses in taking evidence out of the jurisdiction – which are to be costs in the cause.
The costs of this application should be costs in the cause.
I will ask the parties to confer and prepare orders consistent with the terms of this judgment.