Rosenboom v Qantas Airways Ltd

[2002] NSWSC 792

Reported Decision: (2002) 56 NSWLR 164

New South Wales

Supreme Court

CITATION:	Rosenboom & Ors v Qantas Airways Ltd & Ors [2002] NSWSC 792
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20131/01; 20132/01; 20080/01; 20136/01; 20079/01; 20711/00; 20710/00; 20009/01
HEARING DATE(S):	22 & 23 August 2002
JUDGMENT DATE:	6 September 2002
PARTIES :	Sonya Rosenboom (P in 20131/01) Mavis Bridge (P in 20132/01) Lyn Massey (P in 20080/01) Matthew Frost (P in 20136/01) Megan McEwan (P in 20079/01) Roystone Pursehouse (P in 20711/00) Regina Woodward (P in 20710/00) Todd Jaques (P in 20009/01) Qantas Airways Limited (D1 in 20131/01, 20132/01, 20080/01, 20136/01, 20079/01 & 20009/01) Malaysian Airline System Berhad (D2 in 20136/01) PT Garuda Indonesia Limited (D1 in 20711/00) British Airways Plc (D1 in 20710/00) Civil Aviation Safety Authority (D2 in 20131/01, 20132/01, 20080/01, 20711/00, 20711/00, 20079/01 & 20009/01; D3 in 20136/01)
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Mr M McHugh for the Plaintiff in each matter Ms S Brent (solicitor advocate) for the First Defendant in matters 20131/01, 20132/01, 20080/01, 20136/01, 20079/01 & 20009/01 Mr G Nell with Ms F Rogers for the Second Defendant in matter 20136/01 Mr M Macrossan for the First Defendant in matter 20711/00 Mr B Shields for the First Defendant in matter 20710/00 Mr S Donaldson SC for the Second Defendant in matters 20131/01, 20132/01, 20080/01, 20711/00, 20711/00, 20079/01 & 20009/01 and for the Third Defendant in matter 20136/01
SOLICITORS:	Slater & Gordon Pty Ltd Lawyers for the Plaintiff in each matter Minter Ellison Lawyers for the First Defendant in matters 20131/01, 20132/01, 20080/01, 20136/01, 20079/01 & 20009/01 Blake Dawson Waldron Lawyers for the Second Defendant in matter 20136/01 Riley Gray-Spencer for the First Defendant in matter 20711/00 Ebsworth & Ebsworth Lawyers for the First Defendant in matter 20710/00 Mallesons Stephen Jaques for the Second Defendant in matters 20131/01, 20132/01, 20080/01, 20711/00, 20711/00, 20079/01 & 20009/01 and for the Third Defendant in matter 20136/01
CATCHWORDS:	Cross-vesting applications - plaintiff's application - principles applicable - scope of legitimate considerations - relevance of prospective savings in private & public cost from pooling of similar cases in the one jurisdiction for joint case management - absence of factors otherwise connecting the cases with the proposed forum
LEGISLATION CITED:	Jurisdiction of Courts (Cross-vesting) Act 1987, s5 Supreme Court Rules 1970, Pt 1 r 12, Pt 74 r 8
CASES CITED:	Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Dawson v Baker (1994) 120 ACTR 11 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 Lubbe v Cape Plc [2000] 1 WLR 1545 Production Spray Painting & Panel Beating Pty Ltd & Ors v Newnham & Ors (1991) 27 NSWLR 644 Quinn v Leatham [1901] AC 495 Spiliada Maritime Corporation v Cansulex [1987] AC 460 Wilson v Nattrass [1993] SASC 3945
DECISION:	1. That, in each matter, the proceedings be transferred to the Supreme Court of Victoria; 2. That, in matters 20131/01, 20132/01, 20080/01, 20079/01, 20710/00 and 20009/01, the second defendant only to pay the plaintiff's costs of the notice of motion; 3. In matter 20136/01, the second and third defendants only to pay the plaintiff's costs of the notice of motion; 4. In matter 20711/00, the first and second defendants pay the plaintiff's costs of the notice of motion; 5. Liberty to apply on two days notice within four weeks, for any reconsideration of the orders as to costs.

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Friday, 6 September 2002

20131/01 Rosenboom v Qantas Airways Ltd & Anor
20132/01 Bridge v Qantas Airways Ltd & Anor
20080/01 Massey v Qantas Airways Ltd & Anor
20136/01 Frost v Qantas Airways Ltd & Ors
20079/01 McEwan v Qantas Airways Ltd & Anor
20711/00 Pursehouse v PT Garuda Indonesia Ltd & Anor
20710/00 Woodward v British Airways Plc & Anor
20009/01 Jaques v Qantas Airways Ltd & Anor

Judgment

1 His Honour: In these proceedings, eight plaintiffs claim to have contracted deep vein thrombosis (DVT) as a result of air travel. In proceedings instituted in this court, each sues the respective airline or airlines and also the Civil Aviation Safety Authority (CASA).

2 The defendant airlines are, variously, Qantas Airways Limited (QA), Malaysian Airline System Berhad (MA), Garuda Indonesia Limited (GI) and British Airways Plc (BA). Save for the particulars of the respective flights, the statements of claim are otherwise in identical form. In each case, the respective airlines are sued under the Warsaw Convention as amended at The Hague 1955 (the Convention). It is a necessary element in that claim that the DVT allegedly suffered by the plaintiffs constituted bodily injury caused by an accident within the meaning of the Convention.

3 The cause of action against CASA is in negligence for failing to take precautionary measures against the alleged risk, including failure to warn.

4 The following is a schedule of the proceedings pending in New South Wales.

Matter	Plaintiff	Proceedings commenced	Defendants	Plaintiffs’ residence
20131/01	Rosenboom	23/2/01	D1: QA D2: CASA	Sth Durras, NSW
20132/01	Bridge	23/2/01	D1: QA D2: CASA	Sydney
20080/01	Massey	31/1/01	D1: QA D2: CASA	Corlette, NSW
20136/01	Frost	23/2/01	D1: QA D2: MA D3: CASA	Sydney
20079/01	McEwan	4/2/01	D1: QA D2: CASA	Sydney
20711/00	Pursehouse	22/12/00	D1: GI D2: CASA	Sydney
20710/00	Woodward	5/1/99	D1: BA D2: CASA	Mt Mee, Qld
20009/01	Jaques	1/2/01	D1: QA D2: CASA	Sydney


South Durras is on the South Coast of New South Wales. Corlette is on Port Stephens, near Newcastle. The location of Mt Mee in Queensland is not known to me.

5 In the eight cases commenced in New South Wales prior to March 2001, the initial defendants were the respective airlines. CASA was joined as a defendant in December 2001.

6 In each case, a notice of motion was filed on 5 February 2002. The notices of motion seek an order transferring the respective proceedings to the Supreme Court of Victoria pursuant to s5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Act). An alternative order was sought orally, namely, that the proceedings be stayed pending the outcome of other proceedings in Victoria (to which I will shortly come). There was no objection to the alternative claim being made without notice.

7 The notices of motion were heard by me on 22 and 23 August. Mr M McHugh of counsel appeared for the applicant plaintiffs. Mr S Donaldson SC appeared for CASA in all matters; Ms S Brent, solicitor, appeared for QA in matters involving QA; Mr B Shields of counsel appeared for BA in matter 20710/00; Mr M Macrossan of counsel appeared for GI in 20711/00 and Mr G Nell of counsel, with Ms F Rogers of counsel, appeared for MA in 20136/01.

8 QA and BA consent to transfer orders as sought. CASA, GI and MA oppose transfer orders in the cases in which they are involved, and neither oppose nor consent to the alternative of a stay.

9 The notice of motion in each case is supported by an affidavit by Mr TJ Hammond sworn on 18 February 2002, each affidavit being in materially identical terms. The affidavits disclose that, as at 18 February 2002, proceedings had been instituted on behalf of 326 claimants, all claiming damages for DVT allegedly suffered in association with long haul flights. Three hundred and sixteen of these had been commenced in the Supreme Court of Victoria.

10 Since 14 March 2001, all such proceedings have been instituted in the Supreme Court of Victoria. The eight New South Wales case which are the subject of the present applications were among the ten cases instituted before 14 March 2001 otherwise than in Victoria.

11 The eight New South Wales cases could not simply be discontinued and recommenced in Victoria because the limitation period under the Convention had, by March 2001, expired in each action.

12 Of the 316 cases instituted in the Supreme Court of Victoria as at 18 February 2002, over 100 of the claimants were resident in New South Wales and about 100 were resident in other states and territories of Australia outside of Victoria. Fifteen were international claimants.

13 According to the Hammond affidavits sworn of 18 February 2002, of the cases pending in the Victorian Supreme Court, 11 were selected as “test cases”. Pursuant to a protocol established by Bongiorno J, other matters were to stand adjourned sine die with no further steps to be taken in those cases pending the resolution of one or all of the test cases.

14 Further information concerning the course of the Victorian litigation is provided by a transcript annexed to an affidavit by Mr NJ Topfer, solicitor for CASA, sworn 2 April 2002. It appears that, on 15 February 2002 there was a directions hearing before Bongiorno J in ten matters, including a matter of Povey. These, I would assume, correspond broadly with the 11 matters referred to in Mr Hammond’s affidavit as test cases. A number of airlines were involved as defendants in the ten cases before his Honour. These did not include MA or GI. CASA was a defendant in all ten (as it is in the totality of the cases).

15 On behalf of the plaintiffs, it was proposed that only the case of Povey should move forward at that stage. On my reading of the transcript, there was no serious objection to this from any quarter. All of the ten cases, with the exception of Povey, were accordingly stood over for a directions hearing on 27 March 2002 on the basis that no further action would be taken in them (subject to one exception which I shall mention).

16 Following further discussion, directions were given in the matter of Povey, including that defences be filed, that discovery be given limited to issues that were specified and that a summons be issued to raise the issue as to whether DVT was injury by an accident.

17 The exception to which I have referred was that the defendants were to be at liberty to institute cross-claims for contribution. It was left to the parties to settle what was to be done about the plaintiffs providing sufficient information to enable the defendants to protect their interests in that regard.

18 The evidence before me does not reveal what happened on 27 March 2002 in relation to the ten cases other than Povey or in relation to the balance of the Victorian cases. There is, however, no evidence before me to suggest that any defendant in any Victorian case other than Povey has taken a step in the proceedings or engaged in any preparation other than the filing of an appearance or a conditional appearance.

19 An update concerning the Victorian litigation was provided in an affidavit by Mr PK Over, solicitor, sworn 5 August 2002. The total number of writs issued was now 392, with much the same distribution concerning the residency of claimants.

20 On 26 March 2002, the defendant airlines, QA and BA, had filed a summons in Povey, seeking orders for summary judgment, alternatively, a stay of proceedings as against each of them and, alternatively, that the pleadings against each defendant airline be struck out. The summons was heard on 20, 21 and 22 May 2002, when Bongiorno J reserved his decision. The point taken was whether the DVT allegedly suffered by the plaintiff constituted injury by an accident within the meaning of the Convention.

21 There is no novelty in the joint case management of a large number of matters involving a common feature, nor in the selection of one or a small number of such cases for litigation ahead of the others as lead cases. This has been done a number of times, to my knowledge, in this state in circumstances where damages have been claimed in a number of cases for product liability or toxin exposure liability. It may be anticipated that, in such cases, a question of law may be determined in a lead case, thereby resolving an issue in all of the cases without replication of costs. To a lesser extent, but significantly, issues of fact may be resolved in a lead case, without creating a legal precedent for other cases but providing a basis upon which to expect that the same or materially the same issues in the other cases are likely to be resolved in the same way.

22 It is apparent that a number of the airlines, who are defendants in the cases pending in the Supreme Court of Victoria, and CASA, as a defendant in all of them, have concurred in the approach that the cases pending in that state should be case managed jointly, with Povey going ahead of the others as a lead case. It further appears that what is to be done about other cases in the meantime will be kept under review. It goes without saying, that parties in other cases, to the extent that they have not been heard, would be given an opportunity to be heard if they are dissatisfied with arrangements made in their absence. It appears that no such application has been made.

The legislation

23 Section 5(2) of the Act provides as follows.

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 -
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(ii) … … …
(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.

24 Initial reliance on subparagraph (i) was abandoned in argument (and properly so). The claim for a transfer order was confined to subparagraph (iii).

The law

25 The meaning and scope of the phrase “in the interests of justice” was discussed by Rogers AJA in Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 728-9. [Emphasis added.]

The questions posed by Spiliada [ Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460] and the legislation are the same. What court is more appropriate and what court is pointed to by the interests of justice. This appears clearly from the following statement by Lord Goff (at 476):
"... a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interests of all the parties and the ends of justice ." (Emphasis added.)

I am not suggesting that the draftsman had the speech available when drafting the Act. However, quite obviously, both the House of Lords in Spiliada and the Parliaments enacting the cross-vesting legislation were responding to the same needs. In Spiliada his Lordship gave consideration to the meaning to be ascribed to the word "conveniens" in the Latin tag. Lord Goff, having quoted Lord Dunedin, to a similar effect in Société du Gaz de Paris v Société Anonyme de Navigation "Les Armateurs Francais" 1926 SC (HL) 13 at 18 said (at 475):

"...In the light of these authoritative statements of the Scottish doctrine, I cannot help thinking that it is wiser to avoid use of the word 'convenience' and to refer rather, as Lord Dunedin did, to the appropriate forum ." (Emphasis added.)

As Lord Goff said earlier "the question is not one of convenience but of the suitability or appropriateness of the relevant jurisdiction". As the minority pointed out in Oceanic [ Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389; 79 ALR 9] (at 396; 21): "... to focus the search on the appropriate forum supplies a broader frame of reference than a concentration on convenience and expense."
In my opinion, initially , the search under the Act as in the English courts is for the "natural forum". As Deane J pointed out in Oceanic (at 412; 48), the term "natural" in the context simply means "more appropriate". The expression "natural forum" is given content by Lord Goff (at 478):
"... being 'that with which the action had the most real and substantial connection'. So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Crédit Chimique v James Scott Engineering Group Ltd, 1982 SLT 131), and the places where the parties respectively reside or carry on business."
The expression was probably first used in the context by Lord Keith in MacShannon v Rockware Glass Ltd [1978] AC 795 at 829.
In Spiliada (at 465) Lord Templeman said:
"The factors which the court is entitled to take into account in considering whether one forum is more appropriate are legion. The authorities do not, perhaps cannot, give any clear guidance as to how these factors are to be weighed in any particular case."
In Oceanic (at 412;48) Deane J was prepared to accept the relevance of the connecting factors described by Lord Goff in the Spiliada .

26 Bankinvest was decided in relation to s5(2)(b)(ii), but what was said by Rogers AJA was intended by him to apply also to s5(2)(b)(iii). Of the latter clause, he said (at 730):

Self-evidently, this subclause was designed to provide a basis for a transfer in circumstances where the requirements of subcl (i) and subcl (ii) are not satisfied. Thus, where there are no related proceedings pending in the other Supreme Courts, the dispute does not involve matters of inter-State law, in relation to which jurisdiction is acquired only by reason of the cross-vesting legislation, nonetheless, the court may effect a transfer. What then are the “interests of justice” which the legislature considers should be taken into account in this process? To my mind, the relevant matters and considerations are essentially the same as were specified by the House of Lords in the Spiliada .
… … …
Absent the presence of related proceedings or inter-State law, the inquiry directed by consideration of the “interests of justice” encompass all the matters that determine which is the more appropriate forum that I have already discussed. The two considerations of “more appropriate” and the “ends” or “interests” of justice are used in the same sense by Lord Goff in the passage I have already cited (at 727). I would be going over ground I have already covered if I were to discuss the contents of “interests of justice” further.

27 Street CJ said in Bankinvest (at 714):

[I] t can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. Consideration of textured principle and deep learning – in particular principles of international law such as forum non conveniens – have no place in a cross-vesting adjudication. There is, in substance, no principle to be enunciated other than the necessity of applying the specific considerations stated in the cross-vesting legislation, primary amongst which is the pursuit of the interests of justice. Internal administrative decisions within a court as to where particular proceedings should best go forward in the interests of justice are in many ways akin to the making or refusing of transfer orders under the cross-vesting legislation. The two provisions I have mentioned, namely the power of a court to make a transfer order on its own motion and the denial of any appeal from an order in relation to a transfer, are clear pointers towards this view.

… … …

The reasons prepared by Rogers A-JA will henceforth be definitive of the law and practice on this topic in this State. As I have said at the outset I agree with what he has written and the orders he proposes.

28 I have emphasised the word “initially” in the first passage quoted from Rogers AJA’s judgment. The “initial” inquiry is for the “natural forum”, that is, “the more appropriate forum”. The concept of “[the forum] with which the action has the most real and substantial connection”, and the elaboration of that concept as involving connecting factors of a particular kind, are part of the “initial” inquiry.

29 The word “initial” denotes a first step and implies a second one, or at least that other considerations may then be relevant. When one couples that with the quote from Lord Templeman, I would not regard Rogers AJA’s judgment as intended to be exhaustive of the factors which might be relevant in the interests of justice.

30 A moment’s thought shows that this must be so. The legislation propounds only one test in s5(2)(b)(iii). That is “the interests of justice”. It cannot have been intended by the legislature or by Rogers AJA to confine attention only to relevant factors of a particular kind, notwithstanding that other factors might exist which are relevant to the interests of justice in the circumstances of the particular case.

31 The word “initial” has a historical context which confirms this approach to Rogers AJA’s judgment. In Spiliada v Maritime Corporation v Cansulex [1987] AC 460 (at 476-478), Lord Goff propounded a two stage exercise. First, the court would inquire as to whether some other court was the natural, ie the more appropriate forum for the trial of the action. That was the forum with which the action had the most real and substantial connection. That, in turn, involved connecting factors of the kind to which reference has been made. If it was not established that some other court was more appropriate in this way, the application for a stay would fail. If there was some such court, the application would “ordinarily” be granted, unless there was some other factor (or factors) “by reason of which justice requires that a stay should nevertheless be granted”.

32 Rogers AJA did not adopt this two stage approach. To do so would have meant that a transfer order should be refused if a substantial connection with the other forum was not made out, even if it was in the interests of justice to make the order for some other reason. He chose to adopt only the first stage of Lord Goff’s two stage exercise as an “initial” inquiry, leaving open what other considerations might be brought to bear in the interests of justice and in the circumstances of the case.

33 By not adopting the balance of Lord Goff’s approach, including recourse to a broader consideration of the interests of justice, Rogers AJA cannot have intended to promulgate a more restrictive protocol than that propounded by Lord Goff, precluding consideration of the interests of justice beyond the scope of the connecting factors specified in the first part of Lord Goff’s approach.

34 In determining how to receive and apply Bankinvest it is also important to bear in mind the kind of case that would have been in contemplation by that court. As was stated by the Earl of Halsbury in Quinn v Leatham [1901] AC 495, 506:

[E] very judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of case in which such expressions are to be found.

(This passage has been applied here by Priestley and Handley JJA in Production Spray Painting & Panel Beating Pty Limited & Ors v Newnham & Ors (1991) 27 NSWLR 644 at 654.)

35 Spiliada was a forum non conveniens case. An application for a stay of proceedings on that ground is always made by a defendant, and by a defendant contending – to put it neutrally – that it would be better if the case were tried somewhere else. Applications for a transfer order under the cross-vesting legislation are usually made by a defendant, and by a defendant contending that it would be better if the case were tried elsewhere. In transfer applications, that is usually the case because a plaintiff will rarely be dissatisfied with the jurisdiction he or she has chosen. The defendant, on the other hand, is more likely to have reasons to be dissatisfied.

36 It is to be expected that the principles stated in Bankinvest were propounded in contemplation of a defendant applicant. One has, therefore, to be alert to the possibility that there may be relevant considerations where a plaintiff is the applicant which might not usually arise in cases involving a defendant applicant. One would be slow to read Bankinvest as excluding any such considerations. A plaintiff’s application for transfer based on the wish to pool a large number of similar cases in another court for joint case management, with a view to minimising costs, would be such an instance. To apply the Bankinvest approach against such a case might be to give the decision an operation as precedent which it was never intended to have.

37 In James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357, Mason P endorsed the Rogers AJA approach in Bankinvest. He said, at [87]:

Matters falling solely in category (iii) … are … to be approached on the basis of determining which forum is “more appropriate”, in the sense discussed in Spiliada Maritime Corporation Ltd v Cansulex Ltd [1987] AC 460 as distinct from applying the High Court’s learning about forum non conveniens in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 and later cases.

38 That contrasted the Spiliada approach with the Oceanic approach. It did not imply an adoption from Spiliada of more than Rogers AJA took from it.

39 The limited adoption of the Spiliada principles by Mason P, as by Rogers AJA in Bankinvest, is borne out by other passages in Mason P’s judgment. His Honour, at [91], quoted at length from the speech of Lord Bingham in Lubbe v Cape Plc [2000] 1 WLR 1545. In that case, proceedings were commenced in England on behalf of a large number of South African residents, for damages for injury allegedly resulting from exposure to asbestos in South Africa. The defendant sought a stay of the proceedings on the ground of forum non conveniens, claiming that the South African courts were the appropriate forum. The House of Lords held that a stay should be refused. That was because the proceedings could only be handled efficiently, cost-effectively and expeditiously on a group basis in England (at 1556, 1557, 1558, 1559, 1562 and 1567). The subsidiary reason as to why that was so – lack of funding for such litigation in South Africa – has no application to the present case. But the decision illustrates how a consideration other than a connecting factor of the kind specified in Spiliada may satisfy the interests of justice.

40 Then, at [95], Mason P referred to the judgment of Higgins J in Dawson v Baker (1994) 120 ACTR 11. He said that the judgment provided a useful checklist of factors relevant to “the interests of justice”. These were as follows:

a) application of substantive law;
b) forensic advantage or detriment conferred by procedural law;
c) the choice made by a plaintiff of a forum and reasons for that choice;
d) substantive connections with the forum;
e) balance of convenience to parties and witnesses; and
f) convenience to the court system.

41 It was not suggested that such considerations should be weighted in any particular way. Of them, items (b), (c) and (f) are outside the scope of connecting factors of the kind specified in Spiliada.

42 It is also instructive to note what Higgins J had in mind under item (c) in Dawson (at 25):

The more cogent the reasons for a choice of forum the more weight can be afforded that choice whether or not the procedural laws are relevantly different. For example, the desire in Baffsky of the plaintiff to avoid possible unfair prejudice from a “home town” jury was of some weight.

That is a long way from factors connecting the proceedings to the proposed court.

43 Mason P went on to say, at [96]:

Other decisions support this broad approach to the "interests of justice" inquiry. Thus, in Bourke v State Bank of New South Wales (1988) 22 FCR 378, Wilcox J said (at 394):

In my opinion this phrase ought to be read widely. Under that rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in "the interests of justice" to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation. [Emphasis added.]

44 The cost of conducting similar litigation in more than one court, when the totality of the litigation can be jointly managed in one court, with potential saving in costs is capable of being regarded as an “unnecessary burden”. Holding back the bulk of the cases pending determination of a lead case or cases with a view to saving costs, is not an “unnecessary delay”.

45 His Honour then said, at [97] and [98]:

See also Pegasus Leasing Ltd v Tieco International (Australia) Pty Ltd (1993) 61 SASR 195 and Bissett v Goliath Portland Cement Co [1999] VSC 145.
There remains a liberality about the Australian decisions under the Cross-Vesting Act compared to the recent English cases on forum non conveniens. However, to a considerable degree the Australian cases reflect the relative ease of transport and communication within Australia. There is also recognition that legal and cultural differences in the practice of law from law area to law area within Australia are relatively insignificant (see Pegasus Leasing at 199-200 per Debelle J).

46 In order to appreciate the thrust of Mason P’s judgment in JamesHardie, it is instructive to note what was decided in that case and why. The plaintiffs had commenced proceedings in New South Wales, in the Dust Diseases Tribunal. The defendants sought to have the proceedings transferred to the Supreme Court of Queensland. There were connecting factors with Queensland as the proposed forum, including that the plaintiffs suffered the alleged exposure there, that they resided there, that they had received medical treatment there and that medical practitioners, whose evidence was likely to be relevant, were located there. The advantages of the Dust Diseases Tribunal were purely procedural. In particular, the Tribunal had a rule allowing the tender of historical and general medical evidence which had been tendered in other proceedings, subject to necessary procedural safeguards. Mason P found, at [111], that this rule would “dramatically shorten the proceedings”. Another rule required leave to relitigate issues of a general nature, and there was a decision of the Tribunal determining such an issue against the defendants.

47 It will be noted that these were not connecting factors making the Tribunal the appropriate court in the Spiliada sense.

48 In this regard, Mason P said, at [110]:

I shall of course weigh on the side of the balance such Queensland "advantages" as are established to my satisfaction by the evidence. These include avoidable costs now attributable to the need to prepare for trial in Sydney and probably in Brisbane in circumstances where there is a Brisbane predominance of witnesses involved specifically with the plaintiff, such as the plaintiff's treating doctors.

49 Then, after referring to the rule mentioned above, Mason P said, at [112]:

In my view, 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 not mere forensic advantages to one party that represent a comparable disadvantage to the other party (cf Spiliada at 482ff). They are also 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.

50 Finally, at [116], Mason P said:

Sections 25(3), 25A and 25B of the DDT Act are therefore very relevant to the interests of justice. They offer a significant possibility that substantial savings of time and cost would ensue if the proceeding remains in the Tribunal. In my view, they more than neutralise the countervailing factors of disruption to Queensland witnesses and additional expense which favour the defendants (only slightly, in view of the Tribunal's practice of hearing evidence in Brisbane regularly).

51 Spigelman CJ agreed with Mason P, saying, at [20], that “the interests of justice lie with the efficient and expeditious disposal of the proceedings”. Priestley JA also agreed with Mason P.

52 As to burden of proof, Mason P said (at [100]):

One aspect of Bankinvest which has puzzled later courts is the statement by Rogers AJA (with which Street CJ definitely agreed and Kirby P probably agreed) that it is inapt to speak of any onus resting upon the applicant for transfer (see at 726-7). Such a sentiment may be understandable where transfer is ordered on the Court's own motion. However, like others I find it elusive in the context of a contested proceeding inter partes. If one views the exercise as one of judicial discretion according to proper principle, then it is natural to regard the applicant for particular relief as carrying at least the persuasive onus (see Bourke at 395-6, Chapman v Jansen (1990) 100 FLR 66 at 94, Dawson at 18, Hoddell v Hoddell Pty Ltd [1999] WASC 156 at [18], Nygh, op cit p92). Fortunately, "onus" will seldom if ever be determinative at the end of the day.

53 Having weighed up the relevant considerations, the court was not satisfied in Hardie that a transfer order would be in the interests of justice. In the present case, the plaintiffs must satisfy the court affirmatively that a transfer order would be in the interests of justice. But that is beside the point. Hardie stands as authority for the proposition that a procedural advantage which is likely to contribute to a saving in costs qualifies as a relevant consideration to be put into the balance with or against Spiliada-type connecting factors. That will be so irrespective of where the burden of proof lies.

54 I was referred to Wilson v Nattrass [1993] SASC 3945. The plaintiff and his parents were injured in a motor accident which occurred in South Australia. The plaintiff’s parents commenced proceedings in Victoria in March 1992. The plaintiff commenced proceedings in South Australia on 21 September 1992. An application by the plaintiff to transfer his proceedings to Victoria was heard by Debelle J on 30 March 1993, six months after the plaintiff’s proceedings were commenced. The plaintiff resided with his parents in Victoria. Obviously enough, the three cases involved common issues relating to liability and, in the same jurisdiction, would likely have been heard together as to liability.

55 His Honour recognised “the desirability of avoiding unnecessary cost” as a relevant consideration. However, having regard to where the witnesses respectively resided or carried on business, it was, his Honour found, plainly more convenient and far less expensive for the plaintiff’s proceedings to be heard in South Australia rather than Victoria. His Honour refused the application to transfer the proceedings.

56 Concerning the plaintiff’s choice of jurisdiction, his Honour said, at [12]:

There is another relevant factor. It is unusual for a plaintiff who has instituted an action in one court to seek to transfer his action to another. I am not aware of any reported decision where a cross-vesting application has been made by a plaintiff. Having selected the forum, the plaintiff should, as a general rule, be required to continue the action in that forum. The cross-vesting legislation was intended to be a means by which courts could avoid inconvenience and expense caused by jurisdictional limits of federal, State and Territory courts. The preamble to the Act expresses the intention that it is not intended to detract from the existing jurisdiction of any court and that, so far as practicable, proceedings concerning matters which, apart from the Act, would be entirely or substantially within the jurisdiction of a court should be finally determined in that court. The Act was not intended to provide a means by which a plaintiff could, if he chooses, transfer his action from one jurisdiction to another. It will only be in special circumstances that a plaintiff should be permitted to transfer his action particularly where, as here, the defendant has prepared his defence on the footing that the action will be heard in this Court.

57 In Wilson, considerations relating to convenience and cost favoured the jurisdiction initially chosen by the plaintiff. In that regard, it was significant that the defendant had prepared a defence on the footing that the action would be heard in South Australia. That is an important distinction from the present case where the defendants have done nothing except file appearances.

58 I do not disagree with the result in that case in view of the facts. But, for myself, I do not see why – all else being equal – a plaintiff should not, as a matter of common justice, have a second choice of forum, if there is a good reason for the second choice, an explanation for why the second choice was not made in the first place and no prejudice to the defendant. What interest is served by denying such an application? The plaintiff secures a benefit. The defendant loses nothing except the tactical advantage of detriment to the plaintiff.

59 It is not necessary, however, to go so far in the present case because of the joint case management factor and its significance to the interests of justice.

60 Other cases cited in argument add nothing of legal principle.

Relevant considerations

61 The New South Wales proceedings have no connecting factor in the Spiliada sense making the Supreme Court of Victoria a more appropriate forum. The only factor to support the claim for transfer is the existence of the cohort of similar cases instituted in Victoria, and the way in which those cases are being jointly managed.

62 CASA’s opposition to the plaintiffs’ application for a transfer order was supported by the affidavit of Mr NJ Topfer, solicitor for CASA. The main submissions made on CASA’s behalf, in the affidavit and orally, were as follows:

a) The major consideration was whether any connecting factors with the Victorian Supreme Court or with Victoria were established, and there were none.

b) Potential saving in cost was a relevant consideration, but of less importance. A saving in costs by transfer to Victoria was problematic in this case because of doubts as to whether determination in Povey would contribute to the resolution of other cases.

c) Any saving of that kind could as readily be achieved by staying the New South Wales cases (although counsel did not have instructions to oppose or consent to that).

d) There were connecting factors with New South Wales in all but one of the New South Wales cases: place of residence, some damage presumably suffered here, medical treatment presumably given here and any alleged breach of duty by CASA in failing to warn presumably committed here. In the one case, where the plaintiff is resident in Queensland, the connecting factors were with that state.

e) Trial in Sydney would be cheaper because most of the plaintiffs in the New South Wales proceedings were resident here and would have received treatment here. Trial in Victoria would involve the cost of the plaintiffs coming to Melbourne for medical examination or the cost of bringing Sydney doctors who examined on behalf of CASA to Melbourne for the trial.

f) A shorter limitation period in Victoria for joinder of any cross-defendant was a disadvantage to CASA.

g) Professional privilege for medical records under Victorian law was a disadvantage to CASA.

h) The availability of trial by jury in Victoria was a disadvantage to CASA because of the additional cost. This submission overlooked, however, that jury trial was available to the plaintiffs in New South Wales, notwithstanding a recent amendment to the contrary, because the proceedings were commenced before the commencement of the amendment.

63 GI’s opposition to a transfer order was supported by two affidavits of Mr MA Gray-Spencer, solicitor for GI. The affidavits show that GI is a defendant in ten of the Victorian cases. In three of them, the plaintiffs reside in New South Wales; in two, in Western Australia; and in two, the place of residence is unknown.

64 The ten cases have been adjourned sine die awaiting determination of the summons filed in Povey. No appearances have been filed in these ten cases. There was no evidence that GI has taken any step to disengage itself from the arrangements to hold back all Victorian cases pending determination of the Povey matter, notwithstanding that GI was not privy to those arrangements.

65 Mr Gray-Spencer’s affidavit contains the following sentence: “Garuda wishes the proceedings [that is, the New South Wales case in which it is a defendant] to be heard and prosecuted to finality as soon as possible”. I took from this that, unless the case were transferred or stayed, GI would move to bring the case on for determination here as soon as possible, notwithstanding what is on foot in Victoria and with the prospect of duplication in costs. That was confirmed in submissions, when counsel argued that a determination of the Convention point and of any appeal in that regard might be obtained more quickly in New South Wales than in Victoria. However, on further instructions, GI now consents to a stay of the New South Wales proceedings in which it is a defendant pending final determinations of the Povey case as to liability, including any appeals.

66 GI’s points in opposition to the transfer order were much the same as those advanced on behalf of CASA. In addition, GI’s central administration office is in Sydney.

67 The opposition by MA to the application for a transfer order was supported by two affidavits by Mr A Baykitch, solicitor for MA.

68 The points advanced on behalf of MA were substantially the same as those made on behalf of CASA. Additionally, it is stated on behalf of MA that, although the airline is a defendant in some of the other cases commenced in Victoria, it was not privy to the arrangements that are in place in relation to those matters. It is then to be noted, however, that it has done no more in those Victorian cases than filing an appearance or conditional appearance in some of them. It has not moved to disengage itself from the arrangements that have been made. As MA’s counsel fairly put it, MA has acquiesced in the arrangements.

69 One of the arguments advanced by Mr Baykitch in opposing a transfer of the New South Wales case in which MA is a defendant is that the Supreme Court of New South Wales has greater expertise in interpreting the Convention than the Supreme Court of Victoria. (The argument is based solely on the number of cases in which the Convention has been mentioned in judgments of the respective courts. The reasoning is invalid and I reject the submission. But that is beside the present point.) The argument advanced by Mr Baykitch necessarily implied, in this context, that, as in the case of GI, unless the New South Wales case were transferred or stayed, MA would seek to prosecute the New South Wales proceedings, notwithstanding the arrangements on foot in Victoria, at a cost which might ultimately prove to have been unnecessarily and wastefully incurred. Like GI, MA consents to a stay of the New South Wales proceedings in which it is a defendant, but only until delivery of the judgment reserved by Bongiorno J on 22 May 2002, and then on certain other conditions which it is unnecessary to record.

70 On behalf of MA, emphasis was placed on the argument that the utility of what has been arranged in Victoria is to be discounted because the cases will be different factually. Of course there will be differences in detail, but there will also be common factual issues of a broader kind. I give weight to Bongiorno J’s view that the scheme he has sponsored and implemented in Victoria has the prospect of minimising private and public cost. I also give weight to the opinion of other airlines to the same effect implicit in their support, or at least their acquiescence, in the arrangements in place in Victoria.

Conclusion

1) The principles applicable to the phrase “in the interests of justice” appearing in the Act will accommodate the advantages of pooling cases in the one court for joint case management, where the cases involve the same or similar issues of fact and/or law and where joint case management may minimise costs and court time.

2) Subject to consideration of factors working to the contrary, it is in the interests of justice that the New South Wales cases, which are the subject of the present applications, should be transferred to the Supreme Court of Victoria to be case managed along with the others, rather than that they should move forward to trial, with costs being incurred and with a considerable expenditure in court time which might ultimately prove to have been unnecessary and wasteful.

3) There is no other seriously material consideration either for or against transfer, certainly none that outweighs the benefits of joint case management in the one court.

4) The fact that the Supreme Court of Victoria has been chosen by the plaintiff’s solicitors appears to be pure happenstance. But the fact that it has been chosen, that the bulk of the cases are there and that they are being jointly case managed makes that court the appropriate court in which to pool all of the cases, including those commenced elsewhere before the pooling scheme was put in place.

5) There are over 200 cases in the pool pending in Victoria with plaintiffs resident outside of that state. Eight more hardly matters. The only serious point against the transfer relates to medical examination and medical witnesses. Interstate travel for any necessary medical examination on behalf of defendants is practicable. Video link is available for interstate medical witnesses. The need for such witnesses to give evidence is speculative. The prospect that the bulk of the cases will proceed to trial is speculative and, if experience is any guide, the bulk of them will never come to trial under the kind of joint case management that has been implemented .

6) I am persuaded that transfer orders should be made.

7) A stay of the New South Wales cases would not be a sufficient remedy. The initial duration of any such stay and the circumstances in which it might be extended or lifted are matters more cost-effectively and better dealt with as part of the joint case management of the totality of the cases. If any of the New South Wales cases come to trial, a trial would be more cost-effectively undertaken by the same legal team as is involved in the bulk of the cases, now located in Victoria, and in the same court and subject to the same procedural regime as the Povey case and any other case that might proceed as a lead case The possibility of a joint hearing or hearings on liability or of separate scientific issues is but one illustration.

8) There is no occasion to put the plaintiffs to the proffered undertaking not to claim privilege in relation to medical records. A broader view should be taken. These cases will be managed appropriately in the Supreme Court of Victoria and such of them as it is necessary to hear will be decided appropriately. In context, minor differences in procedural law are insignificant against the advantages of centralising the litigation.

9) Part 74 r 8 requires that an application of this kind be made as soon as practicable after the proceedings were commenced. That was not done. The occasion to do so did not arise until the decision was made to concentrate the cases in the Supreme Court of Victoria. That was in March 2001 and the present applications were not instituted until February 2002. There has been delay. However, where there are strong reasons for granting an application in the interests of justice, including a public interest, and where the respondents have suffered no prejudice as a result of the delay, non-compliance should be excused pursuant to Pt 1 r 12.

10) The respondents to the motions should pay the applicants’ costs, except for the respondents who consented. Consenting respondents should pay their own costs. No-one has been heard as to costs. There should be liberty to apply on two days notice within four weeks, for any reconsideration of the orders as to costs.

71 The orders will be as follows:

1) That, in each matter, the proceedings be transferred to the Supreme Court of Victoria;

2) That, in matters 20131/01, 20132/01, 20080/01, 20079/01, 20710/00 and 20009/01, the second defendant only to pay the plaintiff’s costs of the notice of motion;

3) In matter 20136/01, the second and third defendants only to pay the plaintiff’s costs of the notice of motion;

4) In matter 20711/00, the first and second defendants pay the plaintiff’s costs of the notice of motion;

5) Liberty to apply on two days notice within four weeks, for any reconsideration of the orders as to costs.

-oOo-

Last Modified: 09/09/2002