Mutch v BHP Billiton Ltd
[2015] VSC 253
•5 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST
PRACTICE COURT
No. S CI 2015 1596
| BARRY MUTCH | First Plaintiff |
| CAROL MUTCH | Second Plaintiff |
| v | |
| BHP BILLITON LIMITED | First Defendant |
| WALLABY GRIP (BAE) PTY LTD (in liquidation) | Second Defendant |
| WALLABY GRIP (NSW) PTY LTD (in liquidation) | Third Defendant |
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JUDGE: | CAVANOUGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2015. Final written submissions filed 26 May 2015. |
DATE OF JUDGMENT: | 5 June 2015 |
CASE MAY BE CITED AS: | Mutch v BHP Billiton Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 253 |
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PRACTICE AND PROCEDURE – Application to transfer proceeding to Supreme Court of South Australia – Claim in tort for personal injury through exposure to asbestos in South Australia from 1969 to 1979 – Plaintiff long since residing in Victoria – Mesothelioma – Short life expectancy – Whether proposed transfer in the interests of justice – Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(2) – Dust Diseases Act 2005 (SA).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Over | Maurice Blackburn |
| For the First Defendant | Mr G Watson SC | HWL Ebsworth |
| For the Second and Third Defendants | Mr J Kozicki | Norris Coates |
HIS HONOUR:
This proceeding was commenced on 10 April 2015. It was entered into, and it presently remains in, the Dust Diseases List of this Court. On 1 May 2015 the first defendant, BHP Billiton Ltd (“BHP”), filed a summons for an order that the proceeding be transferred to the Supreme Court of South Australia, with a view to it being further transferred, thereafter, to the District Court of South Australia. For some unexplained reason, BHP’s summons was made returnable (on 22 May 2015) in the Practice Court, whereas it ought to have been made returnable before the Judge in Charge of the Dust Diseases List. In any event, the application now falls to be determined by me. The second and third defendants consent to the application. The plaintiffs oppose it.
The application is made under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (“the Act”). Section 5(2) of the Act relevantly provides that 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—
…
(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.
It is common ground, and I accept, that this provision has potential application notwithstanding that the first defendant’s proposal is that, ultimately, the proceeding be heard and determined by the District Court of South Australia, as distinct from the Supreme Court of South Australia. A broad interpretation is to be given to the word “determined” in s 5(2)(b)(iii). It does not require that the transferee court itself hear the case on its merits and deliver a judgment in respect of it.[1]
[1]BHP Billiton v Harwood [2011] NSWSC 680 (Hoeben J), [68].
The plaintiffs, Barry and Carol Mutch, are husband and wife. Mr Barry Mutch is the principal plaintiff. He and his family moved to Victoria from South Australia in about 1979. He is now 68 years of age. He has terminal mesothelioma. Estimates of his life expectancy (adjusted so as to relate to the present time) range from about three months to about ten months. The most recent specialist’s estimate is about three months, perhaps a little more but possibly much less.
By their amended writ, the plaintiffs seek trial by judge and a jury of six. In their amended statement of claim they make, in summary, the following allegations. At all relevant times BHP occupied and operated shipyards at Whyalla, South Australia (“the shipyards”). BHP engaged or contracted with one or other of the second and third defendants (referred to collectively as “Bells”) to supply asbestos for use as insulation on ships at the shipyards and for Bells’ employees or agents to work as laggers on the ships installing the asbestos insulation (“Bells’ laggers”). Bells, by its Bells’ laggers, installed asbestos insulation on ships at the shipyards. From about April 1969 to 1979, BHP employed Mr Barry Mutch to work as a sheet metal worker at the shipyards. In the course of and for the purpose of his employment, Mr Mutch handled and worked with asbestos materials; he worked near Bells’ laggers handling and working with asbestos materials; and he worked in areas contaminated with asbestos dust and fibres caused by Bells’ laggers having handled and worked with asbestos materials. The plaintiffs further allege that BHP knew — or ought to have known — that a person who was exposed to and inhaled asbestos dust and fibres was at risk of developing serious lung disease therefrom and that Mr Mutch would be exposed to and would inhale asbestos dust while working at the shipyards and that he was thus at risk of developing serious lung disease. They allege that BHP as the employer of Mr Mutch owed him a duty to take reasonable care to avoid him suffering reasonably foreseeable injury in the course of and for the purpose of his employment. They allege that BHP breached its duty of care by negligently causing Mr Mutch to be exposed to and to inhale asbestos dust and fibres. As to Bells, the plaintiffs likewise allege that Bells knew — or ought to have known — that a person such as Mr Mutch who was near to Bells’ employees as they handled and worked with asbestos insulation at the shipyards would be exposed to and would inhale asbestos dust and fibres and was at risk of developing serious lung disease as a result. They allege that Bells owed Mr Mutch a duty to take reasonable care to prevent or avoid exposing Mr Mutch to reasonably foreseeable risk of injury from being near the Bells’ laggers as they handled and worked with asbestos insulation. They allege that Bells breached that duty in that Bells caused Mr Mutch to be exposed to and to inhale asbestos dust and fibres from being near the Bells’ laggers as they handled and worked with asbestos insulation at the shipyards while he was in the employment of BHP.
The plaintiffs further allege that Mr Mutch’s exposure to and inhalation of asbestos dust and fibres from the pleaded negligence of each of BHP and Bells has caused or materially contributed to him suffering injury. The pleaded injury is particularised as follows:
(A)The injury to the first plaintiff is mesothelioma which was diagnosed on about 9 April 2015.
(B) The injury has caused the first plaintiff:
(i) restricted lung function;
(ii) mediastinal lymphadenopathy;
(iii) decreased capacity to exert himself;
(iv) weight loss;
(v) chest pain;
(vi) abdominal pain and bloating;
(vii) anxiety and depression;
(viii) shortened life expectancy.
It is pleaded that the injury has caused Mr Barry Mutch loss and damage in the form of medical expenses and in that he will require voluntary care and assistance because of the injury until his death. Having been born on 24 September 1946, Mr Mutch makes no claim for lost earnings or loss of earning capacity. However, he claims that before the injury he had cared for his wife, the second plaintiff, and that the injury has restricted his capacity to do so.
It is further pleaded that Mr and Mrs Mutch were married in 1966 and that Mr Mutch provided his wife with consortium before the onset of symptoms from the injury. It is pleaded that Mrs Carol Mutch has suffered a loss of or impairment of consortium provided by Mr Barry Mutch and she claims damages accordingly pursuant to s 65 of the Civil Liability Act 1936 (SA).
Each plaintiff claims against each defendant damages, interest and costs.
In O’Donnell v Nage Holdings Pty Ltd[2] I referred to what I understood to be the relevant principles for determining an application for a transfer under the relevantly identical corresponding provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), being principles derived principally from the leading High Court case of BHP Billiton Ltd v Schultz.[3] I venture to repeat now what I said in paragraphs 5 to 12 of that judgment (omitting footnotes):
[2][2013] VSC 115 (19 March 2013).
[3](2004) 221 CLR 400 (“Schultz”).
5Principles for determining whether it is in the interests of justice for a proceeding to be transferred to another State or Territory under the corresponding provisions of the cross-vesting legislation of New South Wales were considered by the High Court in BHP Billiton Ltd v Schultz.
6In Schultz, the plaintiff had allegedly contracted a dust borne disease in South Australia. He sued in the Dust Diseases Tribunal of New South Wales. Sully J of the Supreme Court of New South Wales rejected BHP’s application to cross-vest the case to the Supreme Court of South Australia. The cross-vesting Acts uniformly provide that no appeal lies from a decision on a transfer application. However, if special leave is obtained, an appeal lies to the High Court under s 73(ii) of the Constitution. Having obtained special leave, BHP appealed to the High Court accordingly. The appeal was allowed. All judges of the High Court agreed that Sully J had adopted an erroneous approach. In particular, his Honour had erred by taking into account, first, the plaintiff’s choice of forum as a matter not to be lightly overridden and, second, the advantages that would have been conferred on the plaintiff by s 11A of the Dust Diseases Tribunal Act 1989(NSW), being a provision which conferred on a claimant an ability to make a further claim in the event that an additional dust-related condition developed at a later stage. Four judges (Gummow, Hayne, Kirby and Callinan JJ) determined, in separate individual judgments, that an order should be made for the transfer of the case to South Australia. The other three judges (Gleeson, McHugh and Heydon JJ) delivered a joint judgment. They were of the view that it was “far from clear” that the interests of justice required that the proceedings be transferred to South Australia; and they would merely have remitted the matter to Sully J for reconsideration. Thus the joint judgment of Gleeson, McHugh and Heydon JJ was a dissenting judgment.
7Nevertheless, the following succinct statement of principle by Gleeson, McHugh and Heydon JJ accorded with the views of all members of the Court:
It is not necessary that it should appear that the first court is a “clearly inappropriate forum”. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.
8For the purpose of determining the “more appropriate” forum, two of the judges in the majority, namely Kirby J and Callinan J, laid stress on the concept of the “natural” forum which, in their Honour’s view, would “normally” or “usually” be the place where the alleged wrong was committed, and all the more so in cases where the parties were resident in the corresponding jurisdiction.
9With respect to cases in tort in particular, Callinan J commented that, at least prima facie, the forum of the jurisdiction in which the tort was committed will be better equipped to deal with the issues. The parties would be likely to have a presence in the jurisdiction. Proximity to the courts there was likely to lead to both expedition and savings in expense. But of at least equal importance was the fact that the events giving rise to the claim were at the time subject to, and regulated by, the laws of the jurisdiction where they occurred. The court of that place should be the most experienced and efficient in evaluating and applying such laws. One relevant law would usually be the law relating to insurance. Other state laws would usually apply. Callinan J said:
The parties’ reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the court of that State.
10Gummow J did not relevantly refer to the “natural” forum, but, like Callinan J, his Honour did consider that the courts of South Australia provided the forum which gave effect to the “reasonable expectation of the parties” and to the policy manifested in the transfer provisions of the cross-vesting legislation. That had the advantage for the ready resolution of litigation that the lex fori and the lex loci deliciti coincided, and debates as to classification of statutory provisions as substantive or procedural could not arise. In holding that it had been inappropriate for Sully J to take into account the advantages to the plaintiff arising from s 11A of the Dust Diseases Tribunal Act in the way that Sully J had done, Gummow J emphasised that the “interests of justice” were even handed. On the other hand, it seems to be implicit in the judgment of Gummow J that factors such as comparative speed and efficiency and comparative expense will be relevant if there is satisfactory evidentiary material about them. Hayne J indicated his agreement with Gummow J on these aspects of the appeal.
11Kirby J countenanced somewhat greater breadth and flexibility in relation to the relevant factors. His Honour noted that the cross-vesting legislation required an ultimate judicial decision framed in terms of criteria expressed in very general language (“the interests of justice”, “more appropriate”). His Honour said that it was inherent in such general language that cases would arise where there was room for difference of judicial opinion. That fact would restrain an appellate court from disturbing the evaluation by the primary judge where the “connecting factors” were otherwise finely balanced.
12In their dissenting judgment, Gleeson CJ, McHugh and Heydon JJ expressed some doubt about the usefulness of the concept of the “natural” forum. They said that difficulty may attend the identification of the natural forum for litigation. Their Honours seemed to place considerably less weight on the place of the wrong. They apparently approved of Street CJ’s earlier description of the task as one calling for a “nuts and bolts management decision”. They envisaged that the decision may involve considering a wide range of “connecting factors”, which might include the availability of witnesses, where each party resided (or was situated) and matters of cost, expense and convenience. They accepted that the interests of justice were not the same as the interests of one party. However, in their Honour’s view, the interests of the respective parties, which might in certain respects be common (as, for example, cost and efficiency) and in other respects conflicting, would arise for consideration. They noted that weighing considerations of cost, expense and convenience, even where they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications. But, as already mentioned, theirs was a dissenting judgment.
In O’Donnell,[4] speaking as of 19 March 2013, I proceeded to observe that, since Schultz, numerous applications had been made by defendants in this Court for a transfer under either the Commonwealth cross-vesting provisions or the corresponding Victorian provisions. I said that, as far as I was aware, not a single application had succeeded. A little later (on 26 April 2013), in Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd,[5] it was correctly pointed out by Refshauge J that at least one such application had succeeded. In 2005, in Ewins v BHP Billiton Ltd,[6] Gillard J had granted an application for transfer.[7] I will return to Ewins. Refshauge J also noted, as I had done, that the experience in New South Wales had been more mixed.[8]
[4]At [13]. See also at [38]-[39] and [43].
[5][2013] ACTSC 72 [64].
[6][2005] VSC 4.
[7]Since O’Donnell, there has been (at least) one other successful application, but it was unopposed: Hook v Public Transport Authority (WA) [2014] VSC 69. There have been additional refusals: Tamaresis v CSR Ltd [2013] VSC 613; Thompson v Amaca Pty Ltd [2014] VSC 169.
[8]See also and compare BHP Billiton v Harwood [2011] NSWSC 680 [54].
As I further mentioned in O’Donnell,[9] many of the Victorian cases up to June 2011 were referred to by Robson J in his Honour’s summary of relevant principles in Irwin v State of Queensland.[10] That summary had been treated as sound in subsequent cases; and by both sides in O’Donnell. Neither party in O’Donnell had suggested that any of the Victorian post-Schultz cases had been affected by legal error or had otherwise been wrongly decided.
[9][2013] VSC 115 [13].
[10][2011] VSC 291 [14].
More particularly, in O’Donnell, both sides had in that case proceeded on the basis that the task for the Court was simply a “balancing exercise” in relation to a long list of possibly relevant “connecting factors”.[11] Neither side had submitted that the relevant principles required that the place of the alleged wrong be treated as the starting point, or that it be given any particular weight among relevant factors.
[11][2013] VSC 115 [14].
However, in O’Donnell I noted that, on reflection, it had occurred to me that the majority judgments in Schultz might require that the place of the wrong be taken as the starting point and be given particular weight in every case.[12] In O’Donnell, it was unnecessary for me to determine that question finally but I indicated that it was my view that Schultz may require such an approach. In the present case, without directly submitting that any earlier case was wrongly decided, counsel for BHP, Mr Watson SC, submits that the place of the wrong should indeed be taken as the starting point and should indeed be given particular weight in every case. I accept that submission. In that regard, I venture to repeat a further passage from O’Donnell (omitting footnotes):[13]
Certainly, it is no longer the case that weight is to be given to the plaintiff’s choice of forum. There is no onus on the defendant to displace that choice as such. The further tenor of the majority judgments in Schultz appears to be as follows. Generally speaking, the place of the wrong will be the “natural” forum or the forum which will give effect to the “reasonable expectation of the parties”, especially if the parties are resident there. Hence the courts of that place will usually be the “more appropriate” forum. Therefore, it will usually be in the “interests of justice” that the proceeding be heard and determined in those courts. The “interests of justice” concern the interests of both parties, rather than the selection of the most advantageous, or the least disadvantageous, forum for one of them — for that reason, the “interests of justice” should be judged by more objective factors. The court must transfer a proceeding if it appears to the court that to do so is “in the interests of justice”. Hence it is inapt to describe the power of transfer as a discretionary power. On the other hand, the power involves “the judicial evaluation of a number of factors”.
[12]At [15].
[13]Ibid.
Although the place of the wrong should be taken as the starting point and should be given particular weight in every case, nevertheless in a particular case there may be countervailing factors or other circumstances of such a kind that, considering the matter overall, it will not appear to the original court that it is in the “interests of justice” that the relevant proceeding be determined by the courts of the place of the alleged wrong. As will appear, that is the situation here.
BHP’s position
In support of this application, BHP has filed two affidavits, both by its solicitor Scott Andrew Hay of HWL Ebsworth Lawyers, the first affirmed on 29 April 2015 and the second on 19 May 2015. It is yet to file a defence to the plaintiffs’ statement of claim. However, Mr Hay’s affidavit of 29 April 2015 foreshadows[14] that the matters likely to be in issue at trial include the fact and extent of exposure to asbestos, reasonable foreseeability in relation to the development of a dust disease, whether practicable measures to avoid or lessen the risk were available to BHP and ought to have been implemented, and the quantum of damages. Mr Hay also states[15] that he anticipates a dispute between BHP and the other two defendants as to the proper apportionment of liability between them. He says that it is likely that, as a matter of law, the South Australian legislation dealing with contribution between tortfeasors would apply to this aspect of the claim.
[14]At [10].
[15]At [11].
In paragraph 4 of the same affidavit, Mr Hay submits that it is in the interests of justice that the proceeding be determined in the District Court of South Australia for what he describes as three reasons, expressed (in four sub-paragraphs) as follows:
4.1All of the relevant events occurred in South Australia. The Plaintiff was working in South Australia at the time of the alleged exposure to asbestos. All of the relevant liability witnesses are likely to be located in South Australia. Relevant State records would be held in Adelaide;
4.2The proper law of the Plaintiff’s proceedings is the law of South Australia, being the place where the alleged tort took place. South Australia has passed specific legislation (the Dust Diseases Act 2005) dealing with cases of this kind;
4.3Any attempt to determine the Plaintiff’s proceedings in Victoria is likely to lead to difficult choice-of-law issues which would not arise if the proceedings were determined in South Australia; and
4.4In order to facilitate the speedy and efficient resolution of dust diseases claims, South Australia has special legislation and procedures which find no parallel in the law of Victoria.
Mr Watson SC, in his outline of submissions on behalf of BHP dated 22 May 2015, concentrated on the import of Schultz, especially in light of the operation of the South Australian legislation referred to by Mr Hay, namely the Dust Diseases Act 2005. Mr Watson contended that the decisive feature in this case was the application of South Australian law to a South Australian tort. He developed that contention orally.
The location of witnesses and records
As to the first of the three reasons for transfer asserted in Mr Hay’s initial affidavit of 29 April 2015, Mr Hay does not, in that affidavit, identify any witnesses BHP intends to call or where they are located, nor what State records BHP would seek to rely on.
On the other hand, in a responsive affidavit affirmed on 18 May 2015, Mr Lorne Franks of Maurice Blackburn Lawyers, the solicitor with the carriage of this matter on behalf of the plaintiffs, identifies several witnesses whom the plaintiffs intend to call. Proposed witnesses on the issue of damages include Mr and Mrs Mutch themselves, Mr Mutch’s carers, including his daughter Sarah and his son Andrew, and three of Mr Mutch’s treating doctors, all of whom reside in Victoria, namely Dr Kathy Low (a respiratory specialist), Dr Benjamin Markman (an oncologist) and Dr Michael Long (a general practitioner who also treats Mrs Mutch). Mr Franks deposes that all relevant medical records are likely to be in Victoria as Mr Mutch has received treatment for mesothelioma and its symptoms only in Victoria. There is no evidence, nor any submission, to the contrary.
Several recent specialist reports attest to Mr Mutch’s present physical condition and bear upon his ability to visit South Australia. One is from his abovementioned treating respiratory specialist, Dr Low, dated 16 April 2015.[16] In the report, Dr Low speaks of a CT biopsy performed on 2 April 2015 which confirmed malignant mesothelioma. The symptoms currently suffered by Mr Mutch include significant pain to the left rib cage area (for which Mr Mutch requires strong opioid based medication), weight loss, abdominal pain and bloating. Dr Low says that Mr Mutch will have ongoing follow-up with his medical oncologist Dr Benjamin Markman for palliative chemotherapy and radiotherapy. Dr Low concludes her assessment of Mr Mutch by saying:
His prognosis is poor, likely life expectancy 6 to 12 months.
She then advises that Dr Markman be contacted for further information in relation to treatment and prognosis.
[16]Exhibit “LYF1” to the affidavit of Lorne Franks affirmed on 21 April 2015 in support of an application for a speedy trial.
Dr Markman’s advice is contained in a report dated 30 April 2015.[17] The key parts of his report are as follows:
Mr Mutch initially presented with upper abdominal pain, anorexia and weight loss. … A biopsy confirmed a diagnosis of pleural mesothelioma. Due to the extent of disease, Mr Mutch’s cancer is not [amenable] to surgical resection.
Mesothelioma is a cancer of the lining of the lung (but is not a primary lung cancer). It is a condition related to asbestos exposure. Mr Mutch worked in the ship yards therefore he has a strong occupational history of asbestos exposure. Current average prognosis for irresectable mesothelioma is in the order of 9-12 months.
[17]Exhibit “LYF6” to the affidavit of Lorne Franks affirmed on 18 May 2015.
Mr Mutch’s solicitor also deposes to a telephone conversation with Dr Markman on 13 May 2015 in which he asked for Dr Markman’s opinion as to Mr Mutch’s ability to travel to Adelaide on a trial estimate of 10 to 20 days.[18] Dr Markman’s email response of the same day was as follows:[19]
I note your letter dated 30 April 2015 in particular with respect to questions relating to Mr Mutch’s fitness to travel and remain in Adelaide for up to 20 days to attend court. Though this is not an ideal situation for Mr Mutch in view of his diagnosis and treatment, it is not impossible at present. Having reviewed Mr Mutch last week, he is tolerating his chemotherapy well to date. However, future side effects are unpredictable and not uncommon. Therefore, there is the risk that medical issues may develop while in Adelaide and require medical attention and possible admission to hospital. Further, it is possible that over the coming months Mr Mutch becomes more unwell due either to cumulative chemotherapy toxicity or worsening of his mesothelioma if the chemotherapy is not effective.
Therefore, in summary, I believe that if Mr Mutch is required to attend court in Adelaide, it should be as soon as possible and for as brief duration as possible, and is still associated with risk of medical complications. In addition, the court appearance should not interfere with the timing of future chemotherapy treatments to maximise the chance of a favourable medical outcome from his treatment.
[18]Affidavit of Lorne Franks affirmed 18 May 2015, [21].
[19]Affidavit of Lorne Franks affirmed 18 May 2015, [22].
More recently, in a report dated 20 May 2015,[20] Mr Alexander Rosalion, a cardiothoracic surgeon, described Mr Mutch’s symptoms and prognosis as follows:
Mr Mutch’s current symptoms include severe pain requiring narcotic analgesia, anorexia, severe weight loss and marked tiredness and lethargy. He also has some symptoms including nausea possibly related to his chemotherapy.
…
Malignant mesothelioma is an incurable condition with an average life expectancy of 12 months following diagnosis. Despite chemotherapy Mr Mutch has been confirmed to have very extensive tumor including extra thoracic spread which is an extremely poor prognostic sign. His functional state has also declined rapidly. I would thus suggest his prognosis would be more likely to be in the order of three months. He may survive a little longer if the chemotherapy does become more effective but equally he could pass away much more quickly particularly if he develops an intercurrent infection which is currently likely to be rapidly fatal.
[20]Exhibit “LO’K1” to the affidavit of Leah O’Keefe affirmed on 21 May 2015.
Turning to the liability evidence, each of the plaintiffs’ likely witnesses so far identified resides in Victoria. They are Mr Mutch himself, Mr Kottek (an occupational hygienist) and the abovementioned Mr Rosalion (the cardiothoracic surgeon). In his reply affidavit, Mr Hay states that if the plaintiffs do serve an occupational hygiene report from Mr Kottek, Mr Hay would expect to receive instructions to obtain a report in response from either Alan Rogers or Geoffrey Pickford. Each of those two persons resides in Sydney. Mr Hay also mentions that Mr Kottek has already given evidence in three dust diseases cases in the District Court of South Australia. Mr Franks himself is based in Melbourne and Mr Hay is based in Sydney, although their respective firms have offices in other parts of Australia, including South Australia. As a partner of HWL Ebsworth Lawyers, Mr Hay is being assisted in this case by his colleague Mr R Horsley, a solicitor based at the firm’s Melbourne office.
As to witnesses to the alleged exposure, Mr Franks says that he has not yet sought to locate Mr Mutch’s former work colleagues. Mr Hay exhibits to his reply affidavit an advertisement that had been placed by Mr Franks’ firm (Maurice Blackburn) in an Adelaide newspaper and a Whyalla newspaper, seeking contact from people who had worked at the shipyards in the period 1963 to 1983.[21] Mr Hay asserts his belief that these advertisements were placed in relation to another proceeding currently on foot in the District Court of South Australia in which Mr Hay and Mr Franks act, respectively, for the defendant and the plaintiff. Mr Hay says it is likely that most of the potential witnesses to Mr Mutch’s alleged asbestos exposure would also be resident in Adelaide or Whyalla.
[21]Exhibit “SAH1” to the affidavit of Scott Andrew Hay affirmed 19 May 2015.
Further, Mr Hay asserts from his (more than) ten years’ experience in dust diseases litigation, that he believes that the District Court of South Australia would readily make arrangements for a judge and his or her staff to travel to take evidence from Mr Mutch in light of his poor health. Video-link facilities would also be available to any other witnesses based outside of South Australia who are not able to travel to the State to give evidence.[22]
[22]Affidavit of Scott Andrew Hay affirmed 29 April 2015, [6], [27]-[29]; affidavit of Scott Andrew Hay affirmed 19 May 2015, [5]-[7].
Overall, I do not find Mr Hay’s reliance on the location of witnesses and records very persuasive. I accept that the District Court of South Australia would be prepared to travel to Victoria to take evidence from Mr Mutch at short notice. However, in this case, the tenor of BHP’s proposal seems to involve something approaching an admission by BHP that it would be unreasonable to expect Mr Mutch to travel to Adelaide to give evidence. In any event, in my view, having regard to the medical evidence set out above, such an expectation would be unreasonable; and it would be all the more unreasonable to suggest that Mr Mutch might remain in Adelaide, away from his current sources of medical treatment, for any length of time. It is quite likely that travelling to Adelaide to give evidence would also be problematic for Mr Mutch’s family (who are presently serving as his carers) and also, though perhaps to a lesser extent, for the plaintiffs’ medical witnesses. Thus, apart from any potential witnesses to be called in relation to asbestos exposure, who may be few in number and whose present locations are unconfirmed, it would be more convenient to the majority of the likely witnesses if the proceeding were to be heard in Victoria. In my experience, the hearing of evidence by video-link is generally less satisfactory than the hearing of evidence in person.
At present the trial, if heard in South Australia, is estimated to occupy from 10 to 20 days.[23] The overall costs to be borne by the parties collectively with respect to the calling of witnesses (including out of pocket witness expenses) might be less if the proceeding remained in Victoria. On the other hand, neither party has suggested, nor could I conclude on the limited evidence before me, that legal costs in this respect or overall would be disproportionately different as between the two jurisdictions. Hence I give no weight to the matter of comparative legal costs.[24]
[23]Transcript of proceedings, p 35.
[24]See BHP Billiton v Harwood [2011] NSWSC 680 [66], referring to the observation of Callinan J in Schultz.
As mentioned above, BHP has not indicated what kind of “State records” might be relevant. BHP itself is not headquartered in Adelaide. All, or the majority, of relevant medical records will be in Victoria.
In contrast to Mr Hay’s contentions in relation to the location of witnesses and records, Mr Watson SC, in his written submissions dated 22 May 2015, asserted that matters of that kind “balance each other out” in this case. In my view, however, they favour Victoria, even apart from the special position of Mr and Mrs Mutch as parties (as distinct from witnesses), to which I will come in due course.
Proper law to be applied and choice-of-law issues
As to the second of Mr Hay’s points, being the point principally relied on by Mr Watson SC, I acknowledge that South Australia is the place of the wrong and that, therefore, the proper (substantive) law of this proceeding is the law of South Australia. As already indicated, I accept that I should take this as the starting point on the present application and that I should give it particular weight. I accept also that South Australia has passed specific legislation dealing with dust disease claims, namely the Dust Diseases Act 2005 (SA).
On the other hand, I do not accept that the hearing and determination of the proceeding in Victoria would lead to choice-of-law issues as acutely difficult as BHP has suggested.
In his first affidavit, Mr Hay submits that the object of the Dust Diseases Act is to ensure that proceedings covered by the Act are determined according to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind. Mr Hay refers to provisions such as s 5 which empowers and requires the court to give such directions as are necessary to ensure that dust diseases actions take priority over less urgent cases and are dealt with as expeditiously as the proper administration of justice allows. He points out that, under s 6 of the Act, all dust diseases actions must be litigated in the District Court. I will come back to these and associated provisions in dealing with Mr Hay’s third proffered reason for a transfer to South Australia.
The only other provision of the Dust Diseases Act to which Mr Hay refers in his affidavit is s 8. He concentrates mainly on s 8(2). He points out that s 8(2) creates a rebuttable presumption that persons who, at the relevant time, carried on certain “prescribed industrial or commercial processes” had actual knowledge that exposure to asbestos could cause a dust disease. Mr Hay does not anticipate that there will be any dispute that all of the defendants were carrying on “prescribed industrial or commercial processes” at the relevant time, so that all defendants would be within the scope of the s 8(2) presumption. Mr Hay says that the question whether s 8(2) is substantive or procedural would be a difficult one. He says that in his review of the law he has not found any Australian authorities directly on the question of whether a factual presumption such as s 8(2) should be classified as substantive or procedural. He further deposes that, even if s 8(2) would apply to this proceeding if it continued in Victoria, he anticipates that there would be a significant dispute as to the construction and effect of that provision. He notes that the question of the proper construction and effect of s 8(2) has been considered in previous dust disease cases in South Australia.[25] Mr Hay asserts that, wherever the claim proceeds, BHP will have submissions to make on the construction and effect of s 8(2). If it were to proceed in Victoria, however, the Supreme Court of Victoria would, he says, be placed in the position of having to make a determination about the proper construction of a disputed piece of legislation of another State, without the benefit of clear assistance from the courts of that State.
[25]Citing BHP Billiton Ltd v Parker (2012) 113 SASR 215; BHP Billiton Ltd v Hamilton (2013) 117 SASR 329; BHP Billiton Ltd v Van Soest (2014) 121 SASR 256.
Mr Hay also refers briefly to s 8(1) of the Dust Diseases Act which provides that if it is established in a dust disease action that a person suffers or suffered from a dust disease and was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease, it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person’s dust disease.
In addition, Mr Hay refers to ss 8(3) and 8(4) of the Act which are evidently intended to simplify proof by allowing the re-admission of evidence which has been admitted previously against the same defendant; and by dispensing with the proof of matters which the court considers not to be seriously in dispute; and by providing for cost consequences for the failure to make appropriate admissions; and for allowing the court to admit previous findings in dust diseases actions in other courts as evidence in the current action.
Mr Hay deposes that courts in both South Australia and New South Wales have made findings in previous cases on each of the issues which he has described as being likely to arise in this proceeding. Further, he deposes that a very large amount of evidence relevant to each of those issues has been admitted against BHP in previous cases. He says that such findings and evidence may be available in these proceedings, if they were heard in South Australia, and might help to shorten the trial considerably.
In his outline of submissions dated 22 May 2015, Mr Watson SC refers in global terms to the provisions of the Dust Diseases Act to which Mr Hay had referred. Mr Watson also refers to s 9 of the Act as containing alterations to the common law rules controlling the assessment of damages. He sums up all of these provisions as constituting “special measures to be applied to an asbestos-related case such as this”.[26] Mr Watson submits that difficult questions will arise as to whether different parts of the Act are substantive (in which case the law of South Australia will apply) or procedural (in which the case of the forum will apply). He contends that, in accordance with Schultz, the matter should be transferred to be heard and determined in South Australia.
[26]At [11].
However, as counsel for the plaintiffs, Mr Over, points out,[27] the main cause of action in this proceeding is as between the first plaintiff (Mr Mutch) and the defendants; and, as pleaded in the amended statement of claim, Mr Mutch’s claim is based solely on common law negligence. Mr Over correctly submits that there is only one common law of Australia.[28] Accordingly, he submits that there is no material or significant difference between the law of Victoria and the law of South Australia that would apply to the cause of action as between the first plaintiff and the defendants.[29] The claim by the second plaintiff, Mrs Mutch, is entirely derivative from the common law claim made by her husband, save that, uncontroversially, she relies on s 65 of the Civil Liability Act 1936 (SA) to bring her particular claim for loss of or impairment of consortium provided by her husband. BHP has not submitted that Mrs Mutch’s reliance on that provision is capable of giving rise to any particular difficulty.
[27]Plaintiffs’ outline of submissions dated 21 May 2015 [6].
[28]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 203 CLR 89, 152 [135].
[29]Citing, relevantly, Arentz v Amaca Pty Ltd [2013] VSC 94 (Hollingworth J) [10]-[12].
Mr Watson SC duly acknowledges that, in the amended statement of claim, the plaintiffs have carefully avoided pleading any South Australian law except for the consortium provision. Noting that there is no reliance upon a claim in contract nor upon any claim for a breach of health and safety regulations or any other statutory or regulatory provisions, Mr Watson submits that, if the case were to remain in Victoria, the plaintiffs would be required to accept that they were shut out from amending to bring in any such claims “because they would be vital considerations in accordance with Schultz”.[30] The obverse of that proposition is that the absence of any such claims (at present) assists the plaintiffs in relation to the present application. Hence, for present purposes, I accept Mr Over’s submission that there is no material or significant difference between the law of Victoria and the law of South Australia in relation to the cause of action relied upon in this case.
[30]Transcript of proceedings, p 10.
Further, in Mr Over’s written outline of submissions, it was stated on behalf of the plaintiffs that they did not rely upon either the presumption under s 8(1) of the Dust Diseases Act 2005 (SA) or the presumption under s 8(2) thereof. In those circumstances, I accept the Mr Over’s submission that BHP’s professed concern that the Supreme Court of Victoria might be called upon to construe subsections 8(1) and/or s 8(2) of the Dust Diseases Act is misconceived.[31]
[31]Plaintiffs’ outline of submissions dated 21 May 2015 [8].
Further, I accept Mr Over’s broader submission that BHP’s professed concern must be seen in the context that the Full Court of the Supreme Court of South Australia has recently and definitively ruled upon the construction of s 8(2) of the Dust Diseases Act in, first, BHP Billiton Ltd v Hamilton[32] and, secondly, in BHP Billiton Ltd v Van Soest.[33] Thus, I agree with the plaintiffs that, whether the proceeding be heard in South Australia or in Victoria, if the issue of the proper construction of s 8(2) of the Act arose in any contribution proceedings between BHP and the other defendants, it could be expected that the trial court would follow the Full Court’s interpretation. I note in passing that no notice of contribution has yet been filed in this proceeding.
[32](2013) 117 SASR 329, esp 335-6 and 379.
[33](2014) 121 SASR 256, esp 266-8.
Although not foreshadowed in the plaintiffs’ written outline of submissions, it was stated clearly by Mr Over on behalf of the plaintiffs that they disavowed reliance not only on sub-ss (1) and (2) of s 8, but also on sub-ss (3) and (4) thereof.[34]Again, for the purposes of this application, I consider that I should proceed on the basis there will be no attempt made on behalf of the plaintiffs at the trial to invoke any of the provisions of sub-s (3) or sub-s (4) of the Dust Diseases Act, as such.
[34]Transcript of proceedings, p 47 ln 26 to p 50 ln 11.
It seems to me that, in those circumstances, the prospect that this Court might have to grapple with s 8(3) or s 8(4) at the trial is greatly diminished. Further, Mr Hay did not in either of his affidavits identify any particular evidence or any particular prior findings that BHP might wish to deploy against either the plaintiffs or the other defendants. On the contrary, Mr Hay apparently had in mind only the possibility that the plaintiffs might wish to use prior evidence or prior findings against BHP.[35] That possibility no longer falls for consideration. At the hearing, I specifically raised this topic with Mr Watson. His first reaction was to say that he thought that there was something in Mr Hay’s second affidavit to the effect that BHP may wish to rely upon s 8(3) or 8(4), but most probably only against the second and third defendants. However, I can see nothing in Mr Hay’s second affidavit (or in his first affidavit, for that matter) to that effect. Mr Watson frankly told me that he could not say that there were any findings made in any previous cases that BHP could use against the plaintiffs. He suggested, albeit faintly, that BHP might wish to rely, as against the plaintiffs, upon evidence given in earlier cases (as distinct from findings made in earlier cases), but no specifics were provided. As I have already said, it was not even suggested in either of Mr Hay’s affidavits that BHP itself might wish to deploy s 8(3) or s 8(4) against either the plaintiffs or the other defendants.
[35]See, in particular, [21] and [22] of the affidavit of Scott Andrew Hay affirmed on 29 April 2015.
There is no prospect that s 9(1) could come into play in this case. That is a provision which authorises the court to make an award of damages in the first instance for a particular dust disease and then to award further damages at a future date if the injured person develops another dust disease. Mr Mutch has a regrettably short life expectancy. There is no prospect of s 9(1) being applicable to him.
Section 9(2) relates to exemplary damages. The plaintiffs make no claim for exemplary damages. Mr Watson SC expressly recognised this.[36] He submitted that if exemplary damages were going to be claimed later, that claim would have to be refused. Again, however that may be, I must proceed on the basis that this case involves no claim for exemplary damages. Accordingly, s 9(2) of the Dust Diseases Act can have no application.
[36]Transcript of proceedings, p 13.
Subsection 9(3) of the Dust Diseases Act 2005 (SA) provides:
(3)Despite any other Act or law, the Court must, when determining damages in a dust disease action, compensate, as a separate head of damage, any loss or impairment of the injured person’s capacity to perform domestic services for another person.
Note —
This subsection is intended to restore the effect of Sullivan v Gordon (1999) 47 NSWLR 319.
Given that there is an allegation in the amended statement of claim that, before the injury, Mr Mutch had cared for the second plaintiff (Mrs Mutch), and that the injury has restricted his capacity to do so, it is quite possible that s 9(3) may arise for consideration. On the other hand, BHP has not submitted that there are any difficulties of interpretation or application with respect to s 9(3).
More generally, at the hearing I inquired of counsel on both sides for their submissions as to whether, on its true construction, the Dust Diseases Act 2005 (SA) as a whole would have any application to a claim that was being heard in a jurisdiction other than South Australia. Both counsel said they regarded that question as a difficult one. They sought further time to consider it. I gave leave to each of them to file supplementary written submissions on the point following the hearing. Each side duly filed a brief supplementary submission. On both sides it was contended that the Act should be read as having extraterritorial operation to the extent that any particular provision of the Act was properly characterised as substantive rather than procedural. For the purposes of determining this application, I will assume, without deciding, that this joint contention of the parties is correct.[37]
[37]As was discussed at the hearing, the question may turn on the true scope of the defined term “dust disease action”. The language of the Dust Diseases Act 2005 (SA) is somewhat parochial generally. See, in particular, ss 4, 5, 6 and 7.
I note that Mr Hay deposes in his first affidavit that it is likely that, as a matter of law, the South Australian legislation dealing with contribution between tortfeasors would apply to the dispute which he anticipates there will be between BHP and the other defendants, although I note again that no notice of contribution has yet been filed. There is nothing in Mr Hay’s affidavits or otherwise in the material before me to indicate that the South Australian legislation dealing with contribution between tortfeasors is different in any way from the (quite conventional) corresponding legislation of Victoria.
In refusing an application for transfer under the cross-vesting legislation in Lloyd v Riverland Regional Health Service Inc,[38] Emerton J said:
The fact that the relevant laws are the laws of South Australia should be no barrier to the proper administration of justice in this case. Judges of the Supreme Court of Victoria are practised in applying the laws of other jurisdictions, including South Australia. Moreover, other than naming the relevant South Australian statute governing personal injuries litigation, no submission was made that the matters alluded to by Callinan J in Schultz would have a particular bearing on the conduct and determination of the proceeding.
[38][2010] VSC 350 [28].
In the present case it was submitted, especially in the affidavits and submissions filed on behalf of BHP prior to the hearing, that the matters alluded to by Callinan J in Schultz would have a particular bearing on the conduct and determination of this proceeding. However, for the reasons I have mentioned, it is now clear that the choice-of-law issues are considerably more limited than at first appeared.
I reiterate that I regard the place of the alleged wrong, namely South Australia, as the starting point and I do give it considerable weight. On the other hand, I do not accept that the choice-of-law issues are so significant as to be determinative or decisive in this case.
Facilitating the speedy and efficient resolution of the claim
It will be recalled that third reason for a transfer to South Australia asserted by Mr Hay in his first affidavit was expressed as follows:
In order to facilitate the speedy and efficient resolution of dust diseases claims, South Australia has special legislation and procedures which find no parallel in the law of Victoria.
In paragraph 33 above I have summarised what Mr Hay said in this regard in his first affidavit. To reiterate, Mr Hay referred to the stated object of the Dust Diseases Act 2005 (SA) to ensure expeditious procedures, and he mentioned the provisions (such as ss 5 and 6) that are intended to ensure that dust disease actions are all heard in the District Court, with appropriate priority.
By his affidavit of 18 May 2015, Mr Franks takes issue with Mr Hay in this regard.[39] Mr Franks observes in his affidavit that Mr Hay omits any reference to Victorian provisions and practices which allow for the efficient and expeditious hearing of dust diseases cases in Victoria, including:
[39]Affidavit of Lorne Franks affirmed 18 May 2015 [48]-[54].
(a) Order 41 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic);
(b) the Dust Diseases List of the Supreme Court of Victoria (in which, as mentioned above, this proceeding was filed), established by Practice Note No 2 of 2015 (Common Law Division); and
(c) the Civil Procedure Act 2010 (Vic) of which, Mr Franks says, there is no equivalent in the State of South Australia.
Mr Franks deposes that, based on his experience of legal practice in Victoria and that of his colleagues at Maurice Blackburn, the Supreme Court of Victoria has provisions and practices which would very likely see this proceeding resolved during Mr Mutch’s lifetime if the matter remained in the Supreme Court of Victoria.
Mr Franks refers to the following passage contained in this Court’s annual report for 2011-2012 under the heading “Personal Injuries List”:
The Division continues to manage a large number of claims of persons suffering from asbestos related disease. To facilitate claims where a plaintiff is terminally ill, the associate judges have a dedicated time allocated each week for the management of these cases. Pre-trial conferences in asbestos cases are conducted by senior court registry staff. Claims are expedited, with the average time from issue to trial being three months.
Mr Franks deposes that on 14 May 2015 he performed a search of the six cases referred to in paragraph 6 of Mr Hay’s affidavit in which BHP has appeared as a defendant in matters listed in the South Australian District Court. Mr Franks looked at the written judgments in those proceedings and tallied up the number of hearing days as shown in the judgments. He also calculated the number of days between the first hearing day and the final hearing day in each case. He says that, in chronological order, the results of his investigations were:
(a) Ewins v BHP Billiton Ltd (2005) 91 SASR 303 ran for four hearing days. In that case liability was admitted so the trial proceeded as an assessment of damages. It ran between 7 March 2005 and 17 March 2005 (10 days);
(b) Parker v BHP Billiton Ltd [2011] SADC 104 ran for 25 hearing days. It ran between 1 June 2009 and 18 January 2010 (231 days);
(c) Cadoo v BHP Billiton Ltd [2012] SADC 31 ran for 25 hearing days. It ran between 1 June 2009 and 18 January 2010 (231 days);
(d) Hamilton v BHP Billiton Ltd [2012] SADC 25 ran for 16 hearing days. It ran between 7 February 2011 and 10 February 2012 (368 days);
(e) Van Soest v BHP Billiton Ltd [2013] SADC 81 ran for 18 hearing days. It ran between 19 April 2012 and 20 December 2012 (245 days);
(f) Shaw v BHP Billiton Ltd [2015] SADC 3 ran for 22 hearing days. It ran between 2 November 2009 and 23 July 2013 (1359 days).
Mr Franks calculated the averages of the data set out in the previous paragraph. On average, the number of sitting days to hear each case was 18 days and the length of time between the first and last day of trial was 407 days. When Ewins is excluded, the average number of sitting days was 21 days and the length of time between the first and last hearing day was 487 days. (I interpolate that further periods, sometimes exceeding 12 months, expired before the delivery of judgment in those cases. In addition, I note from Mr Hay’s own affidavit that BHP took appeals to the Full Court of the Supreme Court of South Australia, separately, in each of Parker, Hamilton and Van Soest. It appears that this process added an average of about 12 months to the process of finally determining the respective claims.)
In contrast, says Mr Franks, the two most recent dust disease decisions of which he is aware as having run to verdict in the Supreme Court of Victoria ran for significantly less time. These were as follows:
(a) King v Amaca Pty Ltd [2011] VSC 422 ran for 12 hearing days. It ran between 10 August and 30 August 2011 (20 days);
(b) Grey v Seltsam Pty Ltd [2015] which, as Mr Franks had been informed by junior counsel for the plaintiff and believed, ran for eight hearing days.
In his affidavit in reply affirmed on 19 May 2015, Mr Hay responds in relation to the specified previous cases in the District Court of South Australia in the following terms:
15Between paragraphs 52 and 54 of his affidavit, Mr Franks sets out the number of days between the first and final hearing days of six asbestos cases previously determined by the District Court of South Australia, compared with the average number of days between the first and last hearing dates in two matters which were heard in this Court.
16With respect, I do not believe that these parts of Mr Franks’ Affidavit give a fair reflection of the expedition with which the District Court is able to dispose of such cases. My reasons for holding this view are as follows:
16.1Parker and Cadoo were heard together and should therefore be counted as one matter, not two;
16.2The plaintiffs in Cadoo, Hamilton, and Shaw were deceased at the time of the hearing and the plaintiff in Parker did not suffer from a terminal illness. None of those proceedings were “urgent” matters;
16.3In Parker and Cadoo, Hamilton and Shaw the Court received further submissions in relation to High Court decisions which were handed down after judgment had been reserved. In Shaw the Court also allowed fresh evidence to be adduced after judgment had been reserved;
16.4In Van Soest the plaintiff’s evidence was taken on commission before the main part of the hearing, which commenced several months later.
Mr Hay proceeds to observe that, despite the length of the hearing in Van Soest, the District Court was able to complete the hearing and deliver judgment within the plaintiff’s lifetime, notwithstanding that he suffered from mesothelioma.
By reference to and taking into account the contents of these contending affidavits, counsel for the plaintiffs made submissions along the following lines in his written outline dated 21 May 2005.[40] Both the District Court of South Australia and the Victorian Supreme Court have practices and provisions that can aid in having an expedited hearing for people with shortened life expectancies like the first plaintiff. Despite the intent of s 8(3) and s 8(4) of the Dust Diseases Act 2005 (SA), they have proven to have little or no utility in asbestos proceedings in South Australia, at least those involving the first defendant: see the discussion in Parker v BHP Billiton [2011] SADC 104, [324]-[327]. The limited empirical evidence is to the general effect that a trial in the Supreme Court of Victoria is likely to occur quickly and be of relatively short duration. The empirical evidence is that, at the very least, trials will be of longer duration in South Australia. Even where a South Australian trial has been completed in the lifetime of a person suffering mesothelioma, there was a period of nearly 14 months between the first hearing date and the handing down of judgment: Van Soest, [8]. That period well exceeds the life expectancy of Mr Mutch.
[40]At [13]-[16].
Mr Watson SC did not, either in his written outline of submissions or in his oral submissions, take issue with Mr Over’s submissions as outlined above. Mr Over’s submissions are consistent with the actual handling of the present case in this Court. Practice Note No 2 of 2015 has already been applied in this case, subject to the hearing and determination of the present application. An order has already been made by Zammit J (on 15 May 2015) for the holding of a de bene esse examination of Mr Mutch.
Mr Over’s submissions are further supported by the observations of Kaye J in Eden v Amaca Pty Ltd.[41] That case related to a plaintiff resident in Tasmania who had commenced a claim in the Supreme Court of Victoria for damages for exposure to asbestos in Queensland. The plaintiff had a short life expectancy. The defendant made an application to transfer the case to Tasmania or Queensland. Kaye J refused the application. Speaking as of 3 October 2007, his Honour said that he considered it to be open to him to take judicial notice of the circumstance that, for a significant period of time, this Court had been able to afford claimants in the position of the plaintiff a speedy hearing and determination of their case, should it remain unresolved. His Honour was left without any persuasive evidence before him that the Supreme Court of Tasmania would be able to provide the case with such a speedy hearing and determination as could be afforded by this Court.[42] I take a corresponding view in this case.
[41][2007] VSC 374 [21]-[24].
[42]At [22].
In Eden, Kaye J regarded the capability of this Court to hear and determine the case with substantial expedition as a relevant circumstance to be taken into account in determining whether the interests of justice required a transfer as sought in that case. It was a case in which “the connecting factors to this State are slight, if non-existent”.[43] Nevertheless, Kaye J did not accept that it was “otherwise in the interests of justice” that the case be transferred to Tasmania or Queensland. Of course, in the present case, the connecting factors to this State could not be described as “slight, if not existent” as they were in Eden. To the contrary, the Mutch family has resided in this State since 1979. Most of the witnesses in the case would be Victorian based. The plaintiffs’ solicitor is also Victorian based. BHP itself has a major presence in Melbourne
[43]At [24].
Mr Watson conceded[44] that it was relevant that, at present, this is a jury action and that one advantage (for both parties) of a jury action is that the parties get a quick decision. The jury does not give reasons. By contrast, dust disease claims in the District Court of South Australia are heard by judge alone. In the case of Shaw referred to above, which was decided earlier this year, the reasons for judgment extended to some 887 paragraphs. Earlier dust disease claims in that Court have also resulted in lengthy judgments.
[44]Transcript of proceedings, p 19.
I note also that in Schultz[45] Gleeson CJ, McHugh and Heydon JJ said:
We do not doubt that, in the case of Zunic, 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. There are cases in which justice may dictate that an interest of one party be given weight.
In my view, there is nothing in that passage or in the similar passage at paragraph 15 of their Honours’ judgment that cannot stand with the several judgments of the judges who were in the majority in Schultz. Consistently with that view, in Amaca v Harris,[46] Hall J said:
… courts are not blind to the reality that mesothelioma [sufferers], given their condition and the prospects that [lie] ahead of them, naturally would wish to have their legal affairs attended to and put to one side as quickly as possible. It is in accordance with human understanding and compassion that they would wish to spend their last days with loved ones and friends without either the prolongation or the distraction that arises in having to deal with lawyers and legal proceedings. The point cannot, in my respectful submission, be better expressed than did Sully, J. in Zunic, a point unaffected by the point with which the High Court was concerned [in] Schultz —
In those circumstances, a reasonable sense of fairness and a reasonable compassion point in the same direction; that is to say, in the direction of the taking of every proper step to ensure that Mr Zunic has his day in Court as quickly, as simply and as efficiently as practicable.
[45](2004) 221 CLR 400, 426 [27]. See also at [15].
[46][2005] NSWSC 622 [60], cited in BHP Billiton v Harwood [2011] NSWSC [39].
Other matters
I said I would come back to Ewins. That was the case in which Gillard J granted an application by BHP to transfer a proceeding to South Australia. Mr Watson SC made passing reference to it in support of his arguments in the present case. It is true that the case bore some similarities to the present. Mr Ewins had mesothelioma. He had a life expectancy of six months. He attributed his injury to exposure to asbestos while working as an employee of BHP at the Whyalla shipyards. On the other hand, strikingly, Mr Ewins was residing and had resided at all relevant times in South Australia. Gillard J observed that he would expect that Mr Ewins would find it far more comfortable to be living at home when the litigation was underway. Most of the witnesses on damages would come from South Australia. On the evidence before Gillard J, his Honour considered that there was no reason to believe that the South Australian Supreme Court could not provide the same services as expeditiously as the Supreme Court of Victoria. In those respects, at least, the case is distinguishable from the present.
The only other cases relied upon by Mr Watson SC were Schultz itself and BI (Contracting) Pty Ltd v Haylock.[47]
[47][2005] NSWSC 592 (Bell J).
In Schultz, as in Ewins, the plaintiff had resided in South Australia at all relevant times. He had asbestosis and asbestos related pleural disease, but not mesothelioma. His life expectancy was nothing like as short as that of Mr Mutch. Further, it was accepted by all of the parties in Schultz that, subject to proof by Mr Schultz of exposure and diagnosis, liability would not be in issue.[48]
[48](2004) 221 CLR 400, 402.
In Haylock, the application was for a transfer from New South Wales to South Australia. The plaintiff was suffering from mesothelioma. However, once again, the plaintiff was residing and had resided at all relevant times in South Australia. She alleged that she was exposed to asbestos in three separate periods as a result of negligence on the part of three separate defendants. Each alleged exposure was in South Australia. One of the defendants was the successor to the State Bank of South Australia. It raised issues including the construction of Acts and regulations of South Australia that dealt with entities that succeeded the State Bank of South Australia. One of the other defendants, BI (Contracting) Pty Ltd, had only ever conducted business in South Australia. Ms Haylock had a life expectancy of between six and 12 months. Bell J was satisfied that the Supreme Court of South Australia would be able to hear Ms Haylock’s claim and deliver judgment within her lifetime. The Dust Diseases Act 2005 (SA) had not yet been enacted. Accordingly, the defendant’s proposal was that the case be heard by the Supreme Court of South Australia, rather than the District Court of South Australia. Again, these features clearly distinguish Haylock from the present case.
Another case discussed at the hearing was BHP Billiton v Harwood,[49] a judgment of the Supreme Court of New South Wales constituted by Hoeben J given on 6 July 2011. Mr Watson SC did not rely on this case, but I put it to Mr Over for comment. Mr Harwood had been living in New South Wales at the time of the application for transfer. He had mesothelioma, allegedly contracted years earlier at the Whyalla Shipyards in the employment of BHP. His life expectancy was estimated at about six months. Hoeben J gave careful consideration to the judgments in Schultz and granted BHP’s application for a transfer to, in effect, the District Court of South Australia. However, as Mr Over submitted, Harwood, too, is distinguishable. Mr Harwood had relied not only on negligence but also on alleged breaches of contractual duties and of duties said to arise from various South Australian statutory and regulatory provisions. Further, as at the time of the decision, the evidence as to the actual experience of the conduct of Whyalla-related mesothelioma claims in the District Court of South Australia was limited. No judgments had been handed down. The evidence before me in this regard is more detailed, and different. As Hoeben J himself said, every case depends on its own facts.[50]
[49][2011] NSWSC 680.
[50]Ibid [63].
Finally, I return to a matter to which I adverted briefly when dealing with the location of witnesses and records. Both Mr Mutch and Mrs Mutch are not merely witnesses. They are parties, with all the rights that other parties enjoy. In a comparable case, Arentz v Amaca,[51] Hollingworth J referred to this as a critical matter. In comments which I regard as equally valid and applicable in the present case,[52] Hollingworth J said, with regard to Mr Arentz:
Assuming that his health permits, he is entitled to attend meetings with his solicitors and counsel, to attend any mediation or settlement conference, and to be present in court throughout the trial in order to observe and give instructions. Those are not matters which can be done as easily or as satisfactorily by video-link or telephone; and, insofar as some of those matters may be done via technology, there would be additional costs for Mr Arentz were he to utilise the technology.
[51][2000] VSC 94 (Hollingworth J), [26].
[52]But see the contrasting comments of Hoeben J in BHP Billiton v Harwood [2011] NSWSC 680 [64].
In his reply at the hearing, Mr Watson SC observed that it was not his experience that many plaintiffs stood around or sat around in court rooms listening to their cases. Mr Watson wondered aloud where Mr Mutch was that day, if this was a matter of great interest to him. My experience is different from that of Mr Watson SC. My impression is that many plaintiffs are physically present and appear to be closely engaged with their cases in court, especially in personal injury matters. As Hollingworth J said, plaintiffs are also entitled to take part in meetings with their legal representatives and to attend any mediation or settlement conference, altogether apart from being present in court in order to observe and give instructions at the trial itself. Courts should endeavour where appropriate to facilitate equal access to justice for all. BHP has not suggested that the retention of this case in Victoria would inhibit its ability to obtain access to justice in any way. However, in my view, to transfer this case to South Australia would be to impair unduly the plaintiffs’ access to justice.
Conclusion
Taking into account all of the matters to which I have referred above, I am not satisfied that South Australia is a more appropriate forum for the hearing and determination of this proceeding. I am not satisfied that it is in the interests of justice to transfer this proceeding to South Australia. Indeed, in my view, it is in the interests of justice that this case should be heard and determined in this Court. Accordingly, the application for transfer will be dismissed.
I will hear the parties on the question of costs.
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