Regit (No. 2) Pty. Limited v Bendyk; Hansen Family Investments Pty. Limited and Anor v Latz

[2005] NSWSC 450

CITATION:	REGIT (NO. 2) PTY. LIMITED v. BENDYK; HANSEN FAMILY INVESTMENTS PTY. LIMITED & ANOR v. LATZ [2005] NSWSC 450
HEARING DATE(S):	Monday 9 May 2005
JUDGMENT DATE :	10 May 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	In matter No. 11785/05, I dismiss the summons. I order Regit (No. 2) Pty. Limited to pay Mr. Bendyk's costs of and incidental to the application. In matter No. 11786/05, I dismiss the application made pursuant to the Jursidction of Courts (Cross-Vesting) Act 1987. I order Hansen Family Investments Pty. Limited and Regit (No. 2) Pty. Limited to pay Mr. Latz's costs of and incidental to the application.

CATCHWORDS:	Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) - cross vesting - Dust Diseases Tribunal - asbestos exposure - mesothelioma - specialist nature of the Tribunal - plaintiffs residents in South Australia - plaintiffs were employed in South Australia - Supreme Court of South Australia - connecting factors - natural forum - application for transfer to South Australian Supreme Court - interests of justice - evidentiary procedural powers under Dust Diseases Tribunal Act - saving time and cost.
LEGISLATION CITED:	Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Dust Diseases Tribunal Act 1989 (NSW)
CASES CITED:	BHP Billiton v. Schultz (2005) 211 ALR 523 James Hardy & Co. Pty. Limited v. Barry (2000) 50 NSWLR 357 BHP Billiton v. Utting & Anor [2005] NSWSC 260 Broken Hill Proprietary Co. Limited v. Zunic (2001) 22 NSWCCR 92 Spiliadia Martime Corporation v. Cansulux Limited (1987) AC 460 Goliath Portland Cement Co. Limited v. Bengtell (1994) 33 NSWLR 414 Dawson v. Baker (1994) 120 ACTR 11 Bourke v. State Bank of New South Wales (1988) 22 FCR 378
PARTIES:	REGIT (NO. 2) PTY. LIMITED v. LEONARD BENDYK; HANSEN FAMILY INVESTMENTS PTY. LIMITED & ANOR v. ROBERT LATZ
FILE NUMBER(S):	SC No. 11785 of 2005; No. 11786 of 2005
COUNSEL:	Plaintiffs: J. Jobson Defendant Bendyk: A.S. Bell Defendant Latz: M. Joseph, SC./A. Naylor
SOLICITORS:	Plaintiffs: McCulloch & Buggy Defendant Bendyk: Turner Freeman Defendant Latz: Alex Stuart & Associates

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S):	112/05 109/05
LOWER COURT JUDICIAL OFFICER :	O'Meally, J.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J.

TUESDAY 10 MAY 2005

No. 11785 of 2005
No. 11786 of 2005

REGIT (NO. 2) PTY. LIMITED v. LEONARD BENDYK

HANSEN FAMILY INVESTMENTS PTY. LIMITED & ANOR v. ROBERT LATZ

JUDGMENT

HIS HONOUR :

Proceedings No. 11785 of 2005 (Bendyk)

1 Regit (No. 2) Pty. Limited filed a summons on 4 May 2005 claiming the following relief:-

(a) an order that the summons be expedited;

(b) an order that the proceedings in Bendyk v. Regit (No. 2) Pty. Limited (No. 112 of 2005) of the Dust Diseases Tribunal, be transferred to the Supreme Court of New South Wales;

(c) the proceedings so remitted thereupon be transferred to the Supreme Court of South Australia;

(d) costs.

2 The summons was supported by affidavits of Mark Siebold, solicitor, sworn 4 May 2005 and of Fiona Jessie Holdsworth, solicitor, also sworn 4 May 2005. The solicitor for Mr. Bendyk, Ms. Judith Joan Horobin, filed an affidavit by her sworn on 6 May 2005. Ms. Horobin is a partner of Turner Freeman, lawyers, and has the conduct of the matter on the plaintiff’s behalf in the proceedings before the Tribunal.

3 A copy of the affidavit of Leonard Bendyk sworn 2 May 2005 and filed in proceedings before the Dust Diseases Tribunal in proceedings No. 112 of 2005 was tendered in these proceedings.

Proceedings No. 11786 of 2005 (Latz)

4 The plaintiffs, Hansen Family Investments Pty. Limited (formerly known as Hansen & Yuncken Pty. Limited) and Regit (No. 2) Pty. Limited (formerly known as Hansen & Yuncken (SA) Pty. Limited) claim relief by way of summons in similar terms to that set out in the summons referred to in paragraph one above, save, of course, for the fact that the proceedings referred to in proposed order 2 are identified as Latz v. Hansen Family Investments Pty. Limited & Anor (No. 109 of 2005) of the Dust Diseases Tribunal.

5 The summons is supported by affidavits of Mr. Siebold and Ms. Fiona Jessie Holdsworth, solicitors, both sworn 4 May 2005. Ms. Holdsworth is a practitioner in the State of South Australia and has been involved in litigation in a number of jurisdictions in South Australia including proceedings involving claims for compensation resulting from exposure to asbestos.

6 Mr. Siebold’s affidavit attaches the affidavit of Mr. Latz, sworn on an unspecified date in May 2005 in Dust Diseases Tribunal proceedings No. 109 of 2005, being part of the evidence before the Dust Diseases Tribunal heard by the President, O’Meally, J. in Adelaide on 3 May 2005.

7 On behalf of the defendant to the summons, Robert Latz, an affidavit has been filed by Alexander Robert Stuart, solicitor, for Mr. Latz, sworn 6 May 2005 and filed on that date.

8 Despite their respective positions in the records of this court, I will refer to Mr. Leonard Bendyk and to Mr. Robert Latz respectively as the plaintiff. I will refer to Regit (No. 2) Pty. Limited in proceedings 11785 of 2005 as the defendant and in proceedings 11786 of 2005, I will refer to Hansen Family Investments Pty. Limited and Regit (No. 2) Pty. Limited as the defendants.

9 Each summons seek orders under the Jurisdiction of Courts (Cross-Vesting) Act 1987 that, if granted, would have the effect of transferring the respective proceedings in the Tribunal to the Supreme Court of South Australia.

Factual matters concerning the plaintiffs

Leonard Bendyk

10 Mr. Bendyk was born in Poland on 30 December 1924. Accordingly, he is presently 80 years of age. Mr. Bendyk’s affidavit of 2 May 2005 indicates that he came to Australia in 1950. He initially worked for the South Australian Railways as a cleaner for 10 years. There were no particular relevant exposures to asbestos in that employment.

11 The relevant period of the employment, so far as the present proceedings are concerned, occurred between 1958 and 1962, when he worked for Hansen & Yuncken as a labourer. It is said that at that time he was involved in the building of Charles Birk’s and David Jones buildings, working alongside asbestos laggers, spraying limpet asbestos onto steel frames. He was required to sweep floors, which had a large amount of asbestos dust, on a regular basis. He stated this gave rise to a very dusty environment. According to the history, he did not wear masks or protective clothing.

12 Between the late 1960’s to the late 1970’s, he worked for Electricity Trust of South Australia. He did concreting and general labourer’s duties. He was involved in the construction of “B” Station Island Power Station. The power station work involved other workers spraying in a similar way to what he had seen at the David Jones site.

13 In the mid-1950’s, he built a house for his family at Royal Park and used asbestos cement flat sheets in the construction. Some sheets were cut by him.

14 According to the history given to Professor Alpers in 1976, the plaintiff retired prematurely at the age of 52 because it is said he had undergone coronary artery bypass surgery and then went on to a disability pension.

15 The plaintiff underwent medical investigation, including a CT scan in 2005. Subsequently, Professor Alpers examined a pathology report dated 7 March 2005 which confirmed a malignant mesothelioma.

16 Dr. Alpers opined in the report that the plaintiff had had significant exposure to asbestos dust and fibre as confirmed by the CT scan and that this was the cause of his mesothelioma. It is a terminal malignant condition.

17 Life expectancy was estimated by Professor Alpers as at the date of his report of 7 April 2005 to be between one and two months, but that complications could shorten the prognosis significantly.

18 In the Statement of Claim filed in the Dust Diseases Tribunal on 29 April 2005, the plaintiff identifies his asbestos exposure as occurring between 1958 and 1962. The claim formulated in the Statement of Claim is based upon common law negligence, alleged breach of statutory duty arising under the Industrial Code (1920) SA and breach of his contract of employment (relying upon the same particulars of negligence and breach of statutory duty). In the particulars of negligence, the plaintiff raises a number of general allegations in relation to the place of work, plants and equipment and the system of work, but more particularly alleges failure to provide effective masks or other respiratory protective equipment and protective clothing. Additionally, the plaintiff alleges the failure to provide exhaust equipment or adequate ventilation in the areas where asbestos dust and fibre were liberated. There are a number of other allegations which it is not necessary to refer to in detail.

19 The plaintiff’s loss and damage includes medical, hospital, pharmaceutical and other expenses and the cost of domestic care, personal attendance and the cost that will be incurred for replacement services formerly provided by him for the benefit of his household, at commercial rates.

Robert Latz

20 Mr. Latz was born in Adelaide on 11 December 1937. He accordingly is now aged 67 years of age. He left school at the age of 16 and, therefore, had a series of employments. In 1955, his carpentry apprenticeship was transferred to Hansen & Yuncken Pty. Limited and he served out that apprenticeship for four years.

21 After a series of projects, the plaintiff was employed by Hansen & Yuncken over a number of years on the construction of West Lakes Shopping Centre, where he recalls seeing construction workers using blue asbestos to insulate steel work as well as at a job at the Adelaide Childrens’ Hospital.

22 In 1955, the plaintiff worked for Hansen & Yuncken Pty. Limited in relation to the AMP building located on King William Street, Adelaide. He says that in the time that he spent working on that project he was in close proximity to numerous other trades, including electricians, plumbers, etc. During this period, he claims to have been exposed to air borne dust and fibre.

23 In relation to an earlier project at Hillcrest Mental Hospital and the Childrens’ Hospital from about 1969 for some two or three years, the plaintiff says that he saw prefabricated pipe insulation material used to insulate or make pipes and that dust and fibre was given off from work undertaken in relation to that aspect of work. He claims he was also exposed to asbestos during spraying operations at West Lakes Shopping Centre.

24 In his affidavit filed in the Tribunal, the plaintiff says that he was never warned of the dangers of asbestos. Had he done so, he would have done everything to protect himself, including wearing a mask.

25 The Statement of Claim filed in the Dust Diseases Tribunal on 28 April 2005 claims damages in negligence against both defendants to the proceedings. The period of work between 1955 and about 1965 and the period from between about 1968 and about 1978 are relied upon, being employments with the first and/or second defendants respectively.

26 A number of allegations of negligence set out in the statement of claim are similar to those in Mr. Bendyk’s Statement of Claim, including in particular the failure to supply a respirator mask or other protective respiratory devices in sufficient time or at all so as to eliminate or reduce the risk of injury to him.

Analysis

27 In an application pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) for cross-vesting of proceedings, there are, essentially, two steps. The first step involves an application based upon the provisions of s.8(1)(a)(ii) or s.8(1)(b)(ii) involving an order removing proceedings into the Supreme Court. Under those provisions this Court “may” make an order.

28 The second step involves the question of transfer in accordance with the provisions of s.5(2)(b)(iii). This provision requires (…shall transfer …) the Supreme Court to transfer the proceedings to the Supreme Court of South Australia if it is otherwise in the interests of justice that the proceeding be determined by that court.

29 It is the second step which has been the subject of detailed consideration in both written and oral submissions of the parties in relation to the summonses with which I am concerned. In that respect, the decision of the High Court in BHP Billiton v. Schultz (2005) 211 ALR 523 and of the New South Wales Court of Appeal in James Hardy & Co. Pty. Limited v. Barry (2000) 50 NSWLR 357 are of particular relevance and application (in particular having regard to the facts of the cases before the Dust Diseases Tribunal in these two cases the judgment in the latter case of Mason, P.). I have also been assisted by the judgment of Simpson, J. in BHP Billiton v. Utting & Anor [2005] NSWSC 260.

30 The proceedings by Mr. Bendyk and Mr. Latz belong to a particular class of litigation. Both plaintiffs tragically have contracted the disease of mesothelioma, which is a prescribed dust disease for the purposes of Schedule 1 to the Dust Diseases Tribunal Act 1989 (NSW). The proceedings, which they have each commenced, have been brought in a specialist jurisdiction, being the jurisdiction of the Dust Diseases Tribunal of New South Wales established by that Act.

31 Although each of the plaintiffs are residents of South Australia and were engaged under contracts of employment governed by the law of South Australia and they performed work in industry in that State pursuant to their respective contracts of employment, proceedings have been brought on their behalf in the Tribunal against their former employer.

32 The application for transfer by the defendant employers has essentially been argued upon the basis that given the strong and obvious connections with the State of South Australia, the Supreme Court of that State is the natural forum for both proceedings. Reference was made to a number of specific connecting factors which would support that conclusion. Mr. J. Jobson, of counsel, argued that in determining the natural forum, the place where the tort is alleged to have been committed, is a significant factor as is the location of the parties and the witnesses.

33 The defendants additionally relied upon evidence to the effect that, should the proceedings be transferred to the South Australian Supreme Court, an expedited hearing would almost certainly be granted. I indicated in the course of argument that I was, of course, prepared to accept that the Court would in fact order expedition, given the nature of the proceedings and the grave condition of each of the plaintiffs.

34 In BHP Billiton v. Utting (supra), Simpson, J. observed that, notwithstanding the primacy of the natural forum, that is not the only consideration in determining where the interests of justice lie. The natural forum may, her Honour observed, in an appropriate case, be displaced by other factors. In this respect, the judgment of Mason, P. in James Hardy & Co. v. Barry (supra) is of particular relevance in resolving the current applications. Before turning to the judgment of the President, it is also of importance to refer to the recent decision of the High Court in BHP Billiton v. Schultz (supra). That case involved a former employee who had contracted asbestosis and a related disease, but it did not involve the disease of mesothelioma. The significance of the distinction is that there was no evidence indicating that the respondent worker, Schultz, was under threat of a terminal illness such as is the case in the present matters.

35 However, that said, it is significant to observe in the joint judgment of Gleeson, CJ., McHugh and Heydon, JJ. that the circumstance of a plaintiff who is near death and who has a much stronger prospect of an early hearing in one court than in another is a circumstance that can be regarded as related to the interests of justice (paragraph 15). Their Honours observed:-

“… 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, will arise for consideration. The justice referred to in s.5 is not disembodied or divorced from practical reality. If a plaintiff in the tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interests of the plaintiff in having a hearing would prevail over the interests of the defendant in such benefit as it might obtain from the plaintiff’s early death. The capacity of the tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.”

36 Later in the same judgment, their Honours stated a number of the propositions including:-

• The interests of justice properly to be taken into account is not unrelated to the interests of one party or another.

• In circumstances of a case such as Broken Hill Pty Co. Limited v. Zunic (2001) 22 NSWCCR 92, it was entirely appropriate for the court to take into account the plaintiff’s short life expectancy and the prospect of expedition in the tribunal.

• For the reasons given by the Court of Appeal in James Hardy & Co. v. Barry (supra), the court (Sully, J.) was right in Schultz (supra) to attach importance to the procedural and evidentiary advantages offered to all parties in the tribunal.

37 In Barry (supra), Mason, P. held that, for reasons explained, matters falling within the category of s.5(2)(b)(iii) of the cross vesting legislation are to be approached on the basis of determining which forum is “more appropriate” in the sense discussed in Spiliadia Maritime Corporation v. Cansulux Limited (1987) AC 460, even though the subsection does not use that language.

38 The expression “the interests of justice”, involves a broad concept. In its application to proceedings initiated in the Dust Diseases Tribunal, Mason, P. identified a number of factors including the following:-

• The Dust Diseases Tribunal Act establishes the Tribunal as a specialist body with exclusive jurisdiction in defined dust-related matters, whether or not arising in New South Wales: Goliath Portland Cement Co. Limited v. Bengtell (1994) 33 NSWLR 414.

• A primary reason for a plaintiff invoking the jurisdiction of the tribunal may be the perceived advantages of provisions inserted into the Dust Diseases Tribunal Act in 1995 and 1998. They are s.25(3) (added in 1995) and s.12A, s.25A and s.25B (added in 1998).

• A court in relation to an application for transfer has regard to the interests of all parties to the proceedings, not only those of the plaintiff or the defendant (as for example where there are third party cross-defendants) and the ends of justice, as judged by the court on all the facts of the case before it and which must control the decision of the court.

• The case law relating to “the interests of justice” and the useful check list of factors that are relevant to the decision to order transfer of category (iii) cases is set out in the judgment of Higgins, J. in Dawson v. Baker (1994) 120 ACTR 11. These factors were:-

(a) application of substantive law;

(b) forensic advantage or detriment conferred by procedural law;

(c) the choice made by a plaintiff or a forum and the reasons for that choice To be read now subject to the High Court’s decision in Schultz . ;

(d) substantive connections with the forum;

(e) balance of convenience to parties and witnesses; and

(f) convenience to the court system.

• The broad approach to the concept of the “interests of justice enquiry” is supported by the decision of Wilcox, J. in Bourke v. State Bank of New South Wales (1988) 22 FCR 378 at 394.

• The significance of the place of the alleged tort is drastically reduced when it is recognised that the common law of Australia will (by definition) be the same in one state (eg., South Australia) as in New South Wales.

• The specialist nature of the litigation and of the tribunal established under the Dust Diseases Tribunal Act is a factor relevant to determining the interests of justice. The Tribunal has extensive trial experience in matters such as the present which assists in their despatch.

• The unique procedural powers of the Tribunal are relevant and significant in the task of determining the more appropriate forum in the ultimate quest for what is in the “interests of justice” . They are factors to be weighed against transfer, insofar as they have “the clear capacity to assist both the defendants and the judicial system of Australia in the just, quick and cheap resolution of the present dispute” [112].

• The provisions, in particular, of ss.25(3), 25A and 25B of the Dust Diseases Tribunal Act are very relevant to the interests of justice. They offer the significant possibility that substantial savings of time and cost would ensue if the proceeding remains in the Tribunal. They may neutralise the countervailing factors of disruption to witnesses located in another State and the additional expense which favour the defendants [116].

Application of relevant principles and factors to the proceedings by Mr. Bendyk

39 Counsel for the defendant, in seeking an order transferring the proceedings, stated in the course of submissions that he had not received instructions to admit liability. Accordingly, for the purposes of the present application, the issue between the parties must be decided upon the basis that, as matters presently stand, both liability and damages will need to be proved by the plaintiff.

40 The relevant exposure occurred many years ago, between 1958 and 1962. The plaintiff will need to call evidence to establish liability upon the following discrete issues:-

• Exposure by him during the course of his employment to asbestos dust and fibre.

• Foreseeability of the risk of harm resulting from such exposure.

• Breach of the employer’s duty to protect and avoid exposure.

• Causation between exposure and the condition of mesothelioma.

41 In establishing these matters, there is no doubt that the plaintiff would be greatly assisted by the provisions of s.25(3) and potentially by being able to rely upon material referred to in s.25A and upon issues of a general nature referred to in s.25B of the Dust Diseases Tribunal Act. Those provisions will not only facilitate proof of matters which underpin the alleged liability, but they also offer a significant possibility that substantial savings of time and cost will ensure if the proceedings remain in the Tribunal. These are important factors in a case in which the plaintiff is gravely ill and has a very limited prognosis and a life expectancy of something of the order of one to two months.

42 Given the specialist nature of asbestos/mesothelioma litigation, the following are issues of importance: the evidentiary and procedural powers and facilities available under the Dust Diseases Tribunal Act, the speed with which the Tribunal not only can convene to take evidence but also to establish and implement an interlocutory programme (including orders as to discovery and interrogatory as of right) the flexibility and capacity of the Tribunal to take evidence as and where required (in this particular matter in South Australia or elsewhere). To be added to these advantages, is the fact that the court is a specialist court and, as Kirby, J. in Schultz (supra) observed its judges have acquired expert knowledge about the aetiology, course and treatment of dust diseases and they have been obliged, more than most, to deliver their reasons in a timely fashion [104].

43 It is these features, his Honour observed, that the Tribunal has become known throughout Australia and beyond. His Honour further observed that whilst, as with any judicial body, there are critics, the extra burdens of the Tribunal have earned it widespread respect.

44 These observations are essentially supported by the observations of Mason, P. in Barry (supra) and it is not necessary for me to repeat what I have already said in relation to the observations of the President of the Court of Appeal. The extensive trial experience and expertise, the fact that the tribunal can and regularly does travel outside New South Wales, and has the additional evidentiary and procedural powers to which I have referred, means that the prospect, not only of an early hearing but of an early judgment in desperately urgent cases such as the present, is a central factor in determining the interests of justice in such case.

45 In the course of his submissions, Dr. A.S. Bell of counsel who appeared for the plaintiff, observed that the advantage of the procedures available to the Tribunal extend beyond liability. They also apply in the area of damages. In this respect a notice has been served upon the defendant to admit material in terms of s.25A of the Act and included amongst the material is extensive medical literature and opinion which establishes the nature of the disease of mesothelioma and the suffering and consequences to a person who is unfortunate enough to suffer from that disease. All of that material is available to assist the court in arriving at a just determination on the question of damages.

46 I do not overlook the fact that in the quoted dicta of the High Court in Schultz (supra) set out in paragraph 35 of the judgment, wherein the Court referred to the ability of the Tribunal to deal expeditiously with a matter in circumstances in which the court to which transfer is sought could not do so as a matter relevant to the interests of justice. Whilst, as I have stated, I proceed upon the basis that the Supreme Court of South Australia would expedite any hearing of proceedings, there is no right to discovery and interrogatories. Leave is required unlike in the Tribunal. Both interlocutory steps have often been shown in cases of this kind to be critical in proving facts in relation to relevant events that have occurred so long ago. Effective and expedited case management by the Tribunal along with its special procedures are important in evaluating the interests of justice.

47 Notwithstanding that there are several connecting factors with the State of South Australia, including the fact that that is the State where the tort is alleged to have been committed along with the question of location of parties and witnesses, I am of the firm view that the application for removal of the proceedings into this Court and transfer of the proceedings to the Supreme Court of South Australia should be refused. In this respect, I consider that the plaintiff’s critical condition, the specialist nature of the tribunal and the special powers available to it in proceedings where liability has not been admitted all point to the conclusion that it is in the interests of justice for the Dust Diseases Tribunal to continue the case management and the effective disposal of the proceedings to judgment as soon as possible and preferable before the plaintiff’s demise. I have taken into account that in establishing liability by use of those special procedures, it is likely that there will be an advantage to both the plaintiff and the defendant in the conduct of what, in all probability, will be a more economical hearing in terms of both time and cost for the proceedings to be heard and determined in the Tribunal.

48 Accordingly, I dismiss the summons. I order Regit (No. 2) Pty. Limited to pay Mr. Bendyk’s costs of and incidental to the application.

Application of relevant principles and factors to the proceedings by Robert Latz

49 The hearing of the proceedings in this matter has advanced to a stage whereby the evidence of Mr. Latz has been taken by the President of the Tribunal, his Honour Judge O’Meally at the plaintiff’s home on 3 May 2005 and the learned President has undertaken a view of certain premises relevant to the plaintiff’s claim for economic loss.

50 The affidavit of evidence of Mr. Alexander Robertson Stuart, solicitor for the plaintiff, sworn 6 May 2005 annexes a letter of 4 May 2005 sent to the solicitors for the defendant, Messrs. McCulloch & Buggy. The letter states in part:-

“In light of the evidence of the Plaintiff, and in light of the cross-examination by the Defendant, we invite you to immediately admit the following:-
1. Employment.
2. Exposure to asbestos.
3. Exposure to a sufficient quality of asbestos to produce the condition of mesothelioma.
4. The failure to act reasonably to prevent the Plaintiff from inhaling asbestos dust and fibre.
5. Breach of duty of care.
6. The diagnosis of mesothelioma.
7. That the mesothelioma was caused by your breach”.

51 In the course of submissions, senior counsel for the plaintiff, Mr. Michael Joseph, SC. stated that the third point above should read “Exposure to a sufficient quantity …” not “quality”.

52 During the course of submissions in reply, counsel for the defendant, Mr. Jobson, stated that he had been instructed during the course of the hearing of submissions to make certain admissions. In that respect he advised the Court that he had instructions to admit points 1, 2, 4 and 5 as set out in the letter from the plaintiff’s solicitors of 4 May 2005 to which I have just referred. However, the defendant did not admit the matters raised in points 3, 6 or 7 set out in that letter.

53 Prior to these admissions, Mr. Joseph, SC. had provided detailed written submissions which I found particularly helpful and, with respect, accurately set forth the relevant principles from the leading cases in this area. However, Mr. Joseph conceded that the admissions made on behalf of the defendant during the hearing of the summons represented a significant concession and accordingly required a re-assessment as to whether or not, in light of the admissions, there remained evidentiary procedural and other advantages sufficient to maintain the plaintiff’s contention that the interests of justice required the proceedings to be litigated in the Tribunal and not to be transferred to the Supreme Court of South Australia.

54 In this application, as in BHP Billiton v. Utting (supra), a great deal of the focus in argument lay upon the special procedures of the Tribunal. Simpson, J. in that case stated that one thing to be observed about those procedures is that they are applicable only to claims where liability is contested. Her Honour stated:-

“… Where liability is admitted (as it frequently is) s.25(3), s.25A and s.25B have no application.”

55 The question is whether, given the admissions made during the course of argument, those admissions are sufficient to nullify the benefits referred to by Mason, P. in Barry (supra) resulting from the existence of those special procedures.

56 There is no doubt that the admissions made on behalf of the defendant has limited the need for the plaintiff to rely upon the special procedures under the Dust Diseases Tribunal Act. Those admissions, however, have not eliminated the need for them for liability has not been admitted. What the plaintiff needs to establish is that the exposures he relies upon that occurred between 1955 and 1965 and between 1968 and 1978 were causative of the condition of mesothelioma and not, for example, any other exposure that may have occurred either outside those periods or otherwise outside his employment. This, of course, is an issue which the plaintiff must prove in order to establish liability. That will involve both factual issues and medical opinion. The factual issues could include the nature and circumstances of the exposure, the type of asbestos exposure and in some circumstances the extent and frequency of it. It may be that the plaintiff will seek to exclude any other possible exposures as relevant in a causative sense to his current condition. Mr. Joseph, SC. referred to Exhibit E to the affidavit of Mr. Stuart sworn 6 May 2005 which is a copy of the notice that has been served pursuant to s.25B(1) to the Act. In particular, the issues referred to in paragraphs 10, 11 and 12 are said to be relevant to the issue of causation.

57 Annexure F to the same affidavit is a list of s.25(3) material of the plaintiff. Mr. Joseph indicated that material referred to in items 24, 26, 27, 28, 29 and 30 are relevant to establishing the issues involved in the causation question in the proceedings.

58 Experience in asbestos related matters reveals that contested issues on liability may involve any one of the issues of exposure, foreseeability, breach and/or causation. The liability issue, for example, in Schultz (supra) related to exposure. In this case it is said to relate to the issues concerning causation, in particular:-

• Whether the plaintiff was exposed to a sufficient quantity of asbestos to produce the condition of mesothelioma.

• An issue concerning the diagnosis of mesothelioma.

• Whether the alleged mesothelioma was caused by the breach that has been admitted.

59 The late admissions made on behalf of the defendant in the present application has caused me to pause to consider whether or not, in fact, the interests of justice do favour proceedings remaining in the Tribunal and being heard and disposed of by it. Whilst the issues of liability have been narrowed by the admissions, liability remains an issue in the respects above mentioned. Given the gravity and urgency associated with the plaintiff’s condition (Dr. Keefe, in his report of 2 May 2005, has said that his condition has deteriorated and he could die at any time) it is, in my view, essential that his proceedings be heard and finally disposed of by the most expeditious and effective procedures available within the time remaining to him. Given that liability remains an issue in the sense already discussed and having regard to the nature of the issues that the plaintiff must prove to be successful, the special procedures under the Dust Diseases Tribunal Act have not been neutralised or rendered academic by the admissions that have been made on behalf of the defendant.

60 In all the circumstances, having regard to the relevant factors identified by Mason, P. in Barry (supra) and other relevant case law principles, I am of the view that the interests of justice will be best served by the Dust Diseases Tribunal continuing to case manage, hear and determine these proceedings.

61 I accordingly dismiss the application made pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987. I order Hansen Family Investments Pty. Limited and Regit (No. 2) Pty. Limited to pay Mr. Latz’s costs of and incidental to the application.

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