Thompson v Amaca Pty Ltd

[2014] VSC 169

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

COMMON LAW DIVISION

No. S CI 2013 04436

JAMES BARRIE THOMPSON (by his litigation guardian WYNEFRED JEANETTE THOMPSON)	Plaintiff
v
AMACA PTY LTD (under NSW ADMINISTERED WINDING UP)	First Defendant
and
SELTSAM PTY LTD	Second Defendant

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2014
DATE OF JUDGMENT:	15 April 2014
CASE MAY BE CITED AS:	Thompson v Amaca Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 169

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PRACTICE AND PROCEDURE – Cross-vesting – Claim for damages for personal injuries – application to transfer proceedings to Supreme Court of Queensland – whether Queensland is the more appropriate forum – s 5(2)(b)(iii) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) – expedited trial date already fixed in Victoria for case involving a seriously ill plaintiff – application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Over	Maurice Blackburn
For the First Defendant For the Second Defendant	Mr M Clarke Mr J Griffin, solicitor	DLA Piper Moray Agnew

HIS HONOUR:

1. James Thompson, the plaintiff, sued Amaca Pty Ltd (formerly James Hardie) and Seltsam Pty Ltd (formerly Wunderlich) for damages for personal injuries.  Mr Thompson, a former carpenter, alleges that he contracted asbestosis from inhaling asbestos dust and fibres when handling asbestos cement products manufactured by Amaca and Seltsam.

1. The proceeding was issued in this court on 28 August 2013. Amaca has applied to have the matter transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic). That provision confers jurisdiction on a court to order the transfer if it is ‘otherwise in the interests of justice to do so’.

1. The High Court has explained[1] that if it appears to the court where the case was issued that it is in the interests of justice that the proceedings be determined by another designated court, then the first court shall transfer the proceedings to that other court.  It is in the interests of justice if the second court is the more appropriate forum.

   [1]BHP Billiton v Schultz (2004) 221 CLR 400, [14].

1. In Irwin v State of Queensland[2], Robson J summarised the law relating to transfers of proceedings.  His Honour’s summary has been adopted in a number of cases since.[3]

   [2][2011] VSC 291 (‘Irwin’)

   [3]Eg. Bob Jane Corp Pty Ltd v Jane [2014] VSC 27; Tamaresis v CSR Ltd [2013] VSC 613; Bateman & Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd [2013] ASTSC 72;  O'Donnell v Nage Holdings Pty Ltd [2013] VSC 115;   

1. His Honour said[4] that the appropriate court is the natural forum as determined by connecting factors to that forum.  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.[5]

   [4]Irwin [2011] VSC 291, [14].

   [5]Ibid [14](h), (i).

1. Further, his Honour listed factors commonly relevant to a tortious action, as this one is.  They include:

•where the wrong occurred;

•the residence of the parties;

•the convenience of the parties and witnesses;

•the law governing the proceeding;

•the experience of a particular court and its ability to provide an efficient and speedy trial;

•the condition of a party — for example, the life expectancy of a plaintiff being limited, thereby requiring a speedy trial.[6]

[6]Ibid [14](l).

1. Mr Thompson is seriously ill.  On 5 February 2014, the parties consented to orders for an expedited hearing in the Supreme Court of Victoria.  Since then, most interlocutory steps have been completed.  The case is listed for a pre‑trial conference on 5 May 2014 (three weeks from now, with Easter intervening) and for trial on 28 May 2014 on an estimate of five to seven days for hearing.  In other words, there is already a fixed date for hearing in Victoria ensuring a speedy trial for a very ill plaintiff. 

1. Although the Supreme Court of Queensland also has procedures in place to accommodate seriously ill plaintiffs and may be able to list Mr Thompson’s case for a speedy trial if asked to do so, that court has not yet been asked to indicate when it could hear a five to seven day trial.  Except for potentially being able to list Mr Thompson’s case on a more urgent basis, the evidence indicates that, currently, the first available date for a five to seven day trial in the Civil List in Queensland is 18 August 2014.  So, the present capacity of the Queensland Supreme Court to hear Mr Thompson’s case in a similar timeframe to the trial date already set in the Victorian Supreme Court has not yet been tested.  It remains an uncertainty. 

1. In my opinion, it is a singularly important consideration in this cross-vesting application, which arises out of litigation involving a seriously ill plaintiff, that one court is able to offer the relative certainty of a speedy trial.  In the present circumstances, because of what has already transpired, that factor favours Victoria as being the more appropriate forum.  Other than that consideration, most of the other factors to be weighed are relatively evenly balanced between one court or the other being the more appropriate forum.

1. Put differently, given there is otherwise no forum more obviously appropriate than the other, the relative certainty of a speedy trial in Victoria, involving a seriously ill litigant, means that the interests of justice are best served in maintaining the trial in the Victorian court.

1. I need only briefly mention the other factors which, in my view, more or less balance one another out in terms of which court is the more appropriate forum:

(a)Mr Thompson’s exposure to asbestos occurred between 1951 and 1985.  For 20 of those years he was working as a carpenter in Victoria, and for 14 years he was working in Queensland.  Analysed differently, of the 10 discrete pleaded timeframes making up the total of 34 years, 7 were in Queensland and only 3 in Victoria.  But analysed differently again, 66 per cent of the total period of actual exposure to asbestos while working as a carpenter occurred in Victoria, whilst only 33 per cent of that exposure time occurred in Queensland.  In short, there was substantial potential exposure to asbestos in each state.

(b)The applicable law, the common law of Australia, is the same in each state.  Neither party pointed to any different locally applicable law.

(c)It is not suggested that either court has better procedures for, or is more capable of, conducting a matter of this kind.  But, as mentioned, because a pre‑trial conference and trial date have already been scheduled in Victoria and there is no certainty surrounding when a trial could be heard in Queensland, there is a distinct advantage for speed of resolution of the matter in having it heard in Victoria.

(d)Mr Thompson resides in Queensland.  But the evidence reveals that, because of his current state of health and his prognosis, wherever the trial takes place it is most likely he will give his evidence by de bene esse examination.  Leave has already been given in Victoria for him to give his evidence in that fashion, and a similar procedure exists for it to be done in Queensland.

(e)Apart from Mr Thompson, there are likely to be four other lay witnesses.  They are his wife, Mrs Thompson, and three witnesses to his actual asbestos exposure.  Mrs Thompson, of course, resides in Queensland, but is able to travel to Victoria to give her evidence.  One of the three asbestos-exposure witnesses lives in Queensland, but two live in Victoria.

(f)Mr Thompson’s two treating doctors (who are expected to give evidence) are in Queensland, a medico‑legal specialist witness is in New South Wales, and he has two non‑medical specialist witnesses who reside in Victoria. 

(g)Accordingly, in terms of convenience to lay and specialist witnesses in attending one court or the other, that factor is relatively evenly balanced.  In any event, the parties did not seem to be concerned that some or all of the witnesses, other than Mr and Mrs Thomson themselves, might give evidence by video link should the trial occur in a state other than the state in which they reside or conduct their business.  So the convenience factor is a modest one.

(h)Amaca did not point to any inconvenience or added expense to it should the case be heard in Victoria rather than in Queensland.  Curiously, it relied upon the inconvenience to the plaintiff — who opposes the transfer application — if the case were to be heard in a state other than where he resides.  Mr Thompson himself does not claim he will be inconvenienced. 

(i)Amaca did argue, however, that it would be prejudiced in a contested jury trial, as this trial will be, to have to cross‑examine Mr Thompson by video link if that is how his evidence is to be given.  But, as I understand the evidence, it is not proposed that Mr Thompson will give his evidence by video link;  as I have said, it is proposed that he give evidence by de bene esse examination in whichever State the trial is held.

1. In conclusion, the determinative factor in this case is the relative certainty that this  seriously ill plaintiff can have his tort claim heard in a short space of time in Victoria compared to the lower degree of certainty that it can be accommodated in Queensland in an equivalent time frame. 

1. Amaca’s application will therefore be dismissed.

1. Before leaving the matter, I should say something about the second defendant’s position.  Amaca had not made the second defendant a respondent to its application.  It should have been.  I understand it was an oversight on Amaca’s behalf.  Seltsam was not served with the application or supporting material until last Friday, 11 April 2014. 

1. Mr Griffin, solicitor for Seltsam, kindly appeared before the court to explain that, although he had not had time to get final instructions on the application, it was almost certain that were he to have more time his instructions would be to neither oppose nor consent to the application.  Rather than hold up the hearing of the application, in the circumstances of urgency that exist, Mr Griffin indicated that the court could safely proceed on the basis that any consideration of Seltsam’s position would have a neutral effect:  that is, a consideration of its position would neither favour nor be adverse to the transfer application.

1. The orders I propose to make are:

1.The first defendant’s application by summons filed 4 March 2014 be dismissed.

2.The first defendant pay the costs of the plaintiff, and (if any) the costs of the second defendant, of and incidental to the application, including reserved costs, to be taxed in default of agreement.