Petterson v Amaca Pty Ltd
[2017] VSC 134
•24 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST
S CI 2016 04577
| JENNIFER PETTERSON | Plaintiff |
| v | |
| AMACA PTY LTD (formerly known as JAMES HARDIE & CO PTY LTD) | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 March 2017 |
DATE OF RULING: | 24 March 2017 |
CASE MAY BE CITED AS: | Petterson v Amaca Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 134 |
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PRACTICE AND PROCEDURE – Cross-vesting application – Interests of justice – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – Application to transfer proceedings from Supreme Court of Victoria to Supreme Court of Queensland – Whether Queensland is more appropriate forum – Case involving a seriously ill plaintiff – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Wilson QC with Mr A Pillay | Melbourne Injury Lawyers |
| For the Defendant | Mr D Wallis | Mills Oakley |
HER HONOUR:
Introduction
The defendant seeks to transfer this proceeding to the Supreme Court of Queensland pursuant to the Jurisdiction of the Courts (Cross-Vesting) Act 1987 (Cth). The plaintiff opposes the application.
For the reasons below, the Court will dismiss the application.
Background
On 9 November 2016, the plaintiff commenced this proceeding in this Court by filing a writ and statement of claim in the Dust Diseases List of the Common Law Division. Her claim is in negligence.
The plaintiff alleges that between approximately the early 1960s until approximately 1971 she was exposed to asbestos dust, particles and fibres at her family’s farming property in Katamatite in Victoria. She claims that she was in close proximity to her father as he cut, sanded and rasped James Hardie asbestos sheets to construct a kitchen, veranda and laundry at their property. Further, that she played in the area of the residual dust and fibres, including playing with offcuts, and was in close proximity to her mother when she swept the area where her father had cut, sanded and rasped the James Hardie sheets. The plaintiff alleges that she played in and around the outhouses of the property that included buildings constructed from James Hardie asbestos sheets, and brushed up and fractured the asbestos sheets in the course of ball games and other playing activities, and then played with the broken asbestos sheets.
The defendant is alleged to have manufactured and sold or supplied the asbestos sheets that were the source of the asbestos dust and fibres. The plaintiff says she suffered loss and damage, in particular, that she has mesothelioma, dyspnoea, nervous shock and anxiety.
The defendant denies that it is negligent. It admits it manufactured, supplied and distributed building products containing asbestos at various times in the State of Victoria. It does not admit that the plaintiff was exposed to and inhaled the asbestos dust particles and fibres.[1]
[1]Defence filed 19 January 2017.
On 6 January 2017, the plaintiff was examined by Dr Robert L. Edwards, a thoracic and sleep physician, for the purposes of a medico-legal report. Dr Edwards’ report dated 7 January 2017 was not in evidence, however, by agreement between the parties, the Court received a copy of it. The reports notes:
… I estimate that her [the plaintiff’s] current life expectancy is approximately 12 months given the length of time she has survived so far and the relatively slow progression of the disease. Her condition will progressively deteriorate. Currently she is at a low level of dependence and I think this will continue for the next 3 - 4 months. She will then move to a moderate level of dependency for the next 4 – 6 months. She will then have a high level of dependency for a month and complete dependency for the last month of her life.[2]
[2]Medico-legal report of Dr Robert L. Edwards, 7 January 2017, 6.
By way of summons filed 9 February 2017, the defendant made this application for transfer to the Supreme Court of Queensland.
Evidence
The following affidavit evidence was before the Court:
(a) affidavit of Stuart Cameron Smith, the defendant’s solicitor, affirmed 1 February 2017 (‘the Smith affidavit’);
(b) affidavit of Michael David Schaefer, the plaintiff’s solicitor, sworn 24 February 2017 (‘the first Schaefer affidavit’); and
(c) affidavit of Michael Schaefer sworn 14 March 2017 (‘the second Schafer affidavit’).
10 It is unnecessary to recite all the evidence in this ruling. It has all been considered.
Submissions
Both parties made written and oral submissions. The plaintiff’s written submissions were filed on 6 March 2017. The defendant’s written submissions were filed on 7 March 2017. The plaintiff provided written submissions in reply to the defendant’s submissions.[3]
[3]The reply submissions were handed up in court on 10 March 2017.
The key submissions of each party are addressed below.
Defendant’s submissions
The defendant submits that the Supreme Court of Queensland is the natural forum given the overwhelming presence of witnesses in Queensland, including the plaintiff and her lawyer.
The defendant relies on BHP Billiton Ltd v Schultz (‘Schultz’)[4] and Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd (‘Bateman’).[5] It submits Bateman is based heavily on the reasoning in Schultz. The defendant also relies upon Ewins v BHP Billiton Ltd (‘Ewins’),[6] and Arentz v Amaca Pty Ltd (‘Arentz’).[7]
[4][2004] 221 CLR 400.
[5][2013] 8 ACTLR 13.
[6][2005] VSC 4.
[7][2013] VSC 94.
The defendant submits that the essence of the case is the location of the witnesses, including the plaintiff. It submits that Queensland is the natural forum given the overwhelming presence of witnesses in Queensland, including the plaintiff and her lawyer. It says the residence of the plaintiff is a factor to be considered. Numerous witnesses may be called from Queensland, and although the plaintiff has indicated this is not the case at this time, the situation may change.
The plaintiff resides in Queensland. Her mother, a critical witness, resides in Queensland. The plaintiff’s treating doctors are in Queensland. Their evidence will go to diagnosis. Dr Edwards’ report refers to records from Gold Coast Cancer Centre, Pindara Private Hospital, Gold Coast Private Hospital, and Dr Ben Anderson, a cardiothoracic surgeon. They are all located in or within one hour’s drive from Brisbane.
The defendant says lay witnesses of the plaintiff’s day-to-day activities are likely to be based in Queensland. Further, experts to support the loss of earnings claimed will presumably be Queensland-based.
The plaintiff has served a report from an occupational hygienist based in Melbourne, but it would be a matter of some ease for that expert to travel to Queensland.
The cost of witnesses travelling from Queensland to Melbourne, or for evidence to be taken de bene esse, could be avoided by transferring the proceeding to the Supreme Court of Queensland in Brisbane.
The defendant does not submit that there would be any inconvenience to it by the hearing remaining in Victoria. The defendant is located in New South Wales and the location of the defendant is therefore of limited relevance to this application.
The defendant says the question of a jury trial ought not to be taken into account. Applying Schultz, the plaintiff cannot rely on a jury trial being offered in Victoria as an advantage. It is not in the interests of justice to take that approach.
The place of tort is a relevant factor but it is not determinative. The defendant concedes the place of the alleged tort is in Victoria. It concedes that this means that if the proceeding remains in Victoria there will be no conflict between procedural and substantive law. However, the defendant says that the Supreme Court of Queensland is well-equipped to deal with the application of substantive Victorian law and that supreme courts in Australia commonly deal with the application of laws from other jurisdictions. The defendant concedes there is no evidence of Supreme Court of Queensland procedures for dealing with these types of cases before the Court.
The defendant concedes that it will be possible to take evidence from witnesses by video link.
The plaintiff’s submissions
The plaintiff says that Victoria is where the duty was owed to her and where she was exposed to injury. It is the place of tort. The governing law is Victoria. Adopting a ‘nuts and bolts approach’, the Supreme Court of Victoria is the more appropriate forum.
The plaintiff relies on Schultz, Ewins and Irwin v State of Queensland.[8] The plaintiff says that Bateman may be distinguished. The plaintiff also relies on Tamaresis v CSR Limited.[9] The plaintiff says that each case depends on its particular facts. It is impossible to state the list of connecting factors exhaustively. The weight given to each factor varies from case to case. In this case, consideration of the connecting factors supports the contention that the natural forum is in Victoria.
[8][2011] VSC 291 (‘Irwin’).
[9][2013] VSC 613. (‘Tamaresis’).
There is no evidence that it is necessary and sufficient, in the interests of justice, that the Supreme Court of Queensland would be a more appropriate court. The only connection between the proceeding and Queensland is tenuous, if not non‑existent. The residence of the plaintiff is a neutral consideration.
The plaintiff says that if the matter was transferred to Queensland, it may result in a conflict between procedural and substantive law and delay. In comparison, in Victoria there is the expectation of a speedy trial. A speedy trial will be necessary given the plaintiff’s life expectancy. This Court has a specialist Dust Diseases List. The experience and processes of the Court in the resolution of disputes may be taken into account: Schultz. There is no evidence about what will happen if the matter is transferred to the Supreme Court of Queensland.
The witnesses are primarily in Victoria. It is not, however, a numbers game as to where the witnesses are located. The plaintiff can currently travel to Victoria. There are three lay witnesses in Victoria and an occupational hygienist who would need to travel to Queensland if the proceeding was transferred.
If the proceeding were transferred, the Supreme Court of Queensland would need to hear expert evidence, probably from two lawyers, about the damages awards of juries in Victoria.
The plaintiff’s mother is in a high care nursing home and cannot travel, even to the Supreme Court of Queensland in Brisbane.
There is no issue about the plaintiff’s diagnosis. Her treatment is self‑evident. The plaintiff is only proposing to call one medical expert in that regard. The plaintiff will most likely only call Dr Edwards, and he is prepared to travel to Victoria.
The plaintiff submits that the only witness costs that would be saved by transferring the proceeding would be those of the medico-legal expert, an accountant and the plaintiff. In fact, witness travel and accommodation expense would be greater if the matter was transferred to Queensland than if it remained in Victoria.
Applicable law
The parties were generally agreed as to the relevant principles.
Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 is applicable. The cross-vesting scheme and relevant principles, including those from Schultz, were summarised by Robson J in Irwin. [10] That summary is adopted.
[10]Irwin, [7] – [14].
The Jurisdiction of Courts (Cross-vesting) Act 1987 forms part of a common scheme adopted by the Commonwealth, and all the states and territories.
The preamble to the Act relevantly provides:
Whereas inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable - …. if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceedings will be transferred to the appropriate court.
Section 5 is headed “Transfer of proceedings.” That section deals with various circumstances where proceedings may be transferred from one court to another. In several instances the court is directed to transfer the proceeding where it appears that it is more appropriate that the proceeding be determined by the other court.
The High Court of Australia held that provisions of the federal cross vesting statute were invalid that authorised the Federal Court to exercise jurisdiction (whether original or appellate) conferred on it by State law relating to cross-vesting of jurisdiction. This did not affect the validity of the scheme for cross-vesting between the Supreme Courts of the States.
The provision relevant to this application to transfer this proceeding from the Supreme Court of Victoria to the Supreme Court of Queensland is in section 5(2)(b)(iii) of the Act. That relevantly provides -
(2) Where -
(a) A proceeding (in this sub-section referred to as the `relevant proceeding') is pending in the Supreme Court (in this sub-section referred to as the `first court'); and
(b) It appears to the first court that -
(i) . . .
(ii) . . .
or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory -
the first court shall transfer the relevant proceeding to that other Supreme Court.
A court may transfer a proceeding on its own motion as well as on the application of a party or on the application of the Attorney-General of the Commonwealth or of a State of Territory. An appeal does not lie from a decision of a court in relation to the transfer of a proceeding.
…
The relevant principles may be summarised as:
(a) The Act requires that the [first] court should exercise the power of transfer whenever “it appears” that it is in the interests of justice that it should be exercised.
(b) It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.
(c) The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.
(d) The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.
(e) The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.
(f) It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. Rather the jurisdiction must be exercised when “it appears” to the court that “it is in the interests of justice” that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued. Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.
(g) The court should adopt what has been described as a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.
(h) The appropriate court is the natural forum as determined by connecting factors to that forum.
(i) Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.
(j) In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.
(k) If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.
(l) Factors which may be relevant to a tortious action are:
(i) The place where the wrong occurred.
(ii) Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.
(iii) The convenience of the parties and witnesses. However in this day and age this factor may not carry substantial weight because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because the provision of evidence by audio visual link.
(iv) The law governing the proceeding.
(v) The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with a particular evidentiary and procedural rules hearing particular types of cases.
(vi) The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.
(m) As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort. Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.
(n) A relevant factor is whether the coincidence of the lex fori and the lex loci delicti will avoid debates concerning substantive and procedural law.
(o) The plaintiff’s choice of forum by itself is not a relevant connecting factor.
(p) Each case depends on its own particular facts.
(q) The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.
In Schultz, the majority held that:
There should be no presumption in litigation in favour of any party. Courts are required to do equal justice. It is wrong to say that proceedings should be conducted in the, or indeed any tribunal because a plaintiff, or for that matter a defendant, is likely to have a better chance of winning or more easily winning there.[11]
[11]Schultz, [258].
The plaintiff’s desire for a trial, whether by judge alone or with a jury, is not a relevant connecting factor.
As to the benefits of a jury trial as contrasted with a trial by judge alone, this is not a matter which ordinarily the Court can consider in an application of this kind. This is simply a policy of the legislature in the two respective jurisdictions which it is not the province of the Court to compare.
Further, the advantages to one party in a forum of trial is said to be a disadvantage to the other and it is not the role of the court on an application such as this to prefer one party to the other. That is simply a consequence of the natural forum.[12]
[12]Bateman, [107]-[108]. Cf. McKee v Van Haften [2001] VSC 251, [43]. Bateman is preferred as McKee v Van Haften predates Schultz. As discussed in paragraph 33 above, at ‘(o)’, the plaintiff’s choice of forum by itself is not a relevant connecting factor, but it is not denied that it is one of the various factors considered in the synthesis of factors relevant to determining the appropriate venue.
Nonetheless, in proceedings where a party has limited life expectancy, it is a relevant factor that a jury action will result in a quicker decision for the parties, as juries do not give reasons.[13]
[13]Mutch v BHP Billiton Ltd and ors [2015] VSC 253 ,[66]-[67] (Cavanaugh J) (‘Mutch’).
The place of wrong is a starting point and should be given particular weight in every case, although there may be countervailing factors or other circumstances such that, it would not overall be in the interests of justice that the proceeding be determined by the court in the place of the alleged wrong.[14]
[14]Mutch, [13] – [14] (Cavanaugh J). See also: Tamaresis, [35].
It is worth reiterating though that ‘[c]ourts should endeavour where appropriate to facilitate equal justice for all.’[15] A party, providing that their health permits, ‘is entitled to attend meetings with [their] 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. These are not matters which can be done as easily or satisfactorily by video-link or telephone’.[16] Such arrangements may also incur additional costs.[17]. The plaintiff in this matter submits, and accepts, as much.
[15]Mutch, [74].
[16]Arentz, [26]; applied in Mutch, [73]-[74].
[17]Arentz, [26].
Consideration
Significantly, it is common ground that the place of the alleged tort is in Victoria. The plaintiff’s alleged injuries arose in Victoria. The substantive law is Victorian.
The plaintiff’s limited life expectancy is a relevant factor. As is the experience of a particular court to provide an efficient and speedy trial.[18] The proceeding is currently being dealt with in a specialist list of this Court which has procedures for speedy trial applications. There is no evidence about what would happen in that regard if the matter is transferred to Queensland, including, critically, whether or not there would be any delay in the matter proceeding to trial.
[18]Paragraph 13 of the first Schaefer affidavit.
The plaintiff’s choice of forum, including her desire for a jury trial, is not in itself a connecting factor. It is however relevant to consider that this proceeding is a jury action and that will result in a quicker trial for the plaintiff than a trial by judge alone. Additionally, a civil jury is not available in Queensland for this type of proceeding.[19]
[19]Paragraph 12 of the first Schaefer affidavit.
The plaintiff is in Queensland. Her residence in Queensland is a factor to consider. The convenience to parties and witnesses is a relevant factor. The evidence is that the plaintiff can travel to Victoria currently.[20] If her health deteriorates, her evidence could be taken via video link or a de bene esse hearing.[21]
[20]Paragraph 6 of the first Schaefer affidavit.
[21]Ibid.
The second Schaefer affidavit evidences that the plaintiff’s principal lawyers are located in Melbourne and they have agent lawyers in Queensland. Given this arrangement, there should be no practical impediment to the plaintiff being closely engaged with her case.
Witnesses are located in both Victoria and Queensland. In respect of the plaintiff’s mother, the evidence is that she is unable to travel from her nursing home.[22] She will not be able to travel to the Supreme Court in Brisbane. She will need to give evidence via video link, thus there is no practical difference concerning her evidence whether the matter is heard in Victoria or Queensland.
[22]Paragraph 9 of the first Schaefer affidavit. It was clarified during the hearing that the elderly person referred to in this paragraph was the plaintiff’s mother.
In addition to the plaintiff and her mother there are: three lay witnesses resident in Victoria;[23] an occupational hygienist based in Victoria; a medico legal expert based in Queensland;[24] an expert accountant based in Queensland. Both the medico legal expert and expert accountant are prepared to travel to Victoria to give evidence (subject to the doctor’s patient load on the day).[25]
[23]Paragraph 7 of the first Schaefer affidavit.
[24]Paragraphs 8 and 10 of the first Schaefer affidavit.
[25]Paragraphs 10 and 11 of the first Schaefer affidavit.
The plaintiff’s submission that, if the proceeding is transferred to Queensland, expert evidence may be required on damages awarded by juries in Victoria, is accepted.
As the plaintiff submits, when considering the convenience to witnesses, it is not a ‘numbers game’. A ‘nuts and bolts management approach’ should be taken to this factor, and others. At this early stage of the trial it is not possible for either party to categorically say who the witnesses will be. It cannot be said that the travel and accommodation expenses would be more if the matter is not transferred to Queensland, or vice versa. Overall, at this stage, the location of witnesses is a neutral connecting factor.
Queensland is not the more appropriate forum for the hearing and determination of this proceeding. The preponderance of connecting factors above favours Victoria as the natural forum. It would not be in the interests of justice to transfer the proceeding to the Supreme Court of Queensland. It is in the interests of justice to hear and determine this proceeding in the Supreme Court of Victoria.
Conclusion
The Court will make orders dismissing the application. The parties are requested to confer as to the appropriate form of orders.
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