Vernon v Kaefer Integrated Services Pty Ltd
[2023] VSC 667
•20 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST
S ECI 2023 04838
| PETER VERNON | Plaintiff |
| v | |
| KAEFER INTEGRATED SERVICES PTY LTD (FORMERLY BAINS HARDING INDUSTRIES PTY LTD) (ACN 009 046 191) | First Defendant |
| - and - | |
| ALCOA OF AUSTRALIA LIMITED (ACN 004 879 298) | Second Defendant |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 November 2023 |
DATE OF RULING: | 20 November 2023 |
CASE MAY BE CITED AS: | Vernon v Kaefer Integrated Services Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 667 |
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PRACTICE AND PROCEDURE – Cross-vesting – Claim for damages for personal injury – Mesothelioma – Application to transfer proceedings to Supreme Court of Western Australia – Whether Western Australia is the more appropriate forum – Section 5(2)(b)(iii) Jurisdiction of Courts (Cross-Vesting) Act 1987 – What is in the interests of justice – Where the location of the tort is in Western Australia but the plaintiff resides in Victoria.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Magazanki, solicitor appearing | Rightside Legal |
| For the First Defendant | M Clarke | Kingston Reid |
| For the Second Defendant | J Sheller SC | Moray & Agnew |
HER HONOUR:
The plaintiff was diagnosed with mesothelioma in May 2023. He initiated proceedings in this Court on 17 October 2023. The Court granted the plaintiff’s application for an expedited trial which is presently listed on 6 March 2024.
Alcoa, the second defendant in this proceeding, has applied to have the proceeding transferred to the Supreme Court of Western Australia pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic).
The first defendant consents to this application. The plaintiff opposes the application.
The application is supported by an affidavit of Brian Bolton dated 24 October 2023 and an affidavit of Stephen Taylor-Jones dated 10 November 2023. The second defendant also provided advertising material in relation to the plaintiff’s solicitors, Rightside Legal’s, presence in Perth. The plaintiff relies on four affidavits of Sharon Mudge: one dated 26 October 2023, two dated 2 November 2023 and one 15 November 2023. Both the second defendant and the plaintiff have provided the written submissions.
Background
The plaintiff alleges exposure to asbestos between 1982 and 1987, while employed by the first defendant to work at the aluminium refineries owned and operated by the second defendant at Kwinana and Pinjarra in the state of Western Australia. The plaintiff was initially employed as a lagger for a period of about three months, and then as a sheet-metal worker. For about 12 months he worked at the Alcoa Kwinana Refinery, and thereafter at the Alcoa Pinjarra Refinery, though he continued to return to the Kwinana Refinery about four times a year.
Each defendant has filed a conditional appearance which by operation of r 8.08(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) has become unconditional. Defences are not yet due.
Legal Principles
The application is for an order pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic). The provision provides relevantly:
(2)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)…
(ii)…or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory –
the first court shall transfer the relevant proceeding to that other Supreme Court.
The wording of this clause is mandatory. That is, if I am relevantly satisfied that it is in the interests of justice to transfer the proceeding to the Supreme Court of Western Australia, I must do so.
In BHP Billiton Limited v Schultz (‘Schultz’),[1] the High Court clarified the meaning of the words ‘interests of justice’ in the context of cross-vesting legislation. The Court said:
There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.[2]
[1](2004) 221 CLR 400.
[2]Ibid [14].
The majority in various ways identified that the plaintiff’s choice of forum is given no specific emphasis in the evaluation of the various factors that connect an action to a jurisdiction:
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 in some respects might be common (as for example cost and efficiency), and in other respects, conflicting, will arise for consideration.[3]
[3]Ibid [15].
The High Court outlined a number of relevant factors in determining which court is the more appropriate forum.
Proving the other court is the more appropriate forum does not require the first court to be shown to be clearly inappropriate. The starting point is the court in the place where the tort occurred. From the starting point, the court considers the relevant connecting factors to the first court and those of another court. Where there is a coincidence between the location of the tort and the residence of the parties, then the court of that place will generally be the more appropriate or natural forum. However, where there is not such a coincidence, the Court will consider and place appropriate weight on the various connecting factors to arrive at the more appropriate court. Different places of residence of the parties may cancel each other out as connecting factors to one or other forum. In Irwin v State of Queensland,[4] Robson J summarised these factors in a tortious action such as in this proceeding as including: the place where the wrong occurred, the residence of the parties (and for a corporation the place where it carries on business), the convenience of parties and witnesses, the law governing the proceeding, the experience of a particular court and its ability to provide an efficient and speedy trial, and the health condition of a party.
[4][2011] VSC 291.
The task is to ensure that cases are heard in the forum dictated by the interests of justice.[5] While often the consideration of ‘connecting factors’ with a particular jurisdiction can readily identify the most appropriate or ‘natural’ form, the connecting factors may be more evenly balanced between two or more forums. The joint judgment of Gleeson CJ, McHugh and Heydon JJ in Schultz refers to the case of SpiliadaMaritime Corp v Cansulex Ltd,[6] where the convenience of the parties and witnesses favoured Canada but a single decisive factor led to the conclusion that England was no less appropriate a forum. In their joint judgment, the minority (as to relief but not as to principle) cautioned an approach that sought to identify a natural forum. Rather, the Court emphasised that the importance and range of factors that govern appropriateness must be fairly balanced in each case as to the more appropriate forum.[7]
[5]BHP Billiton Limited v Schultz (n 1) [14].
[6][1987] AC 460.
[7]BHP Billiton Limited v Schultz (n 1) [18].
Submissions
The second defendant did not dispute Mr Vernon’s diagnosis and limited life expectancy.
The parties agreed that the tort occurred in Western Australia and that accordingly the applicable law is that of Western Australia.
The second defendant submitted that the more appropriate forum for this proceeding is the Supreme Court of Western Australia for the following reasons:
(a) The entirety of Mr Vernon’s exposure to asbestos was in Western Australia, and its law will govern the action.
(b) Two particular elements of the Western Australian law are relevant: first, the rights to contribution between the defendants should a cross-claim be brought; and secondly, the cause of action pleaded as breach of a statutory duty, being a breach of WA regulations. Given these elements of law, the second defendant says that it is more appropriate that a Western Australian court hear the proceeding.
(c) The second defendant has witnesses who are in Western Australia.
(d) While acknowledging that the plaintiff’s witnesses are all in Victoria, the second defendant indicates it would consent to all those witnesses appearing by audio-visual link, eliminating any need to travel to Perth.
(e) As to the plaintiff himself, the second defendant submits that the process of de bene esse taking of evidence is available in Western Australia as in Victoria so that the plaintiff would not be required to travel to Perth to give his evidence at or before trial.
(f) The Supreme Court of Western Australia is equally capable of listing a trial in March 2024 and would manage the case in an expedited way in the Commercial and Managed Cases List, likely to be managed by the Honourable Justice Strk.
The second defendant says there is inconvenience to witnesses whether the trial runs in either Victoria or Western Australia and the availability of audio-visual links to take evidence makes this factor a neutral one.
The second defendant submits that any submissions on the impact of whether the trial is run as judge-alone (as it would be in Western Australia) or with a jury (as it would be in Victoria) is speculative. It says that there is no inevitability that a judge-alone trial will have a deleterious impact on the plaintiff, because though a judge would not deliver a verdict as instantaneously as a jury, the trial judge would seek to deliver reasons as expeditiously as possible.
Accordingly, the second defendant submits that, of the relevant factors that inform a court’s decision as to the more appropriate forum, they weigh in favour of Western Australia.
The plaintiff submitted that Western Australia is not a more appropriate forum because:
(a) The plaintiff resides in Victoria.
(b) The plaintiff intends, if medically able, to attend his trial and give his evidence in person. His wife also wishes to attend in person and support her husband. The plaintiff is not simply a witness in this proceeding but a party to the proceeding and seeks to be present for the entire duration of his trial.
(c) In addition to calling the plaintiff’s wife, there are five lay witnesses as to loss and damage all of whom reside in Victoria.
(d) All of the plaintiff’s treating medical practitioners – his general practitioner, cardio-thoracic surgeon and oncologist – are in Victoria. Three medico-legal experts have been retained – one on liability and two on loss and damage. Two are in Victoria and one in Sydney. It is anticipated that the Sydney witness will travel to Melbourne to give evidence in person.
(e) Dr Markman, the plaintiff’s oncologist, has provided a report dated 24 August 2023 indicating, at that time, that treatment was deferred and from the point of view of the mesothelioma diagnosis the plaintiff was in good clinical health. His life expectancy was anticipated at 12-18 months from diagnosis in May 2023. On this basis the trial date of 6 March 2024 was fixed. By an updated report dated 26 October 2023 Dr Markman indicated that the decision to maintain surveillance only continued. In a report dated 14 November 2023 addressing prospective treatment, Dr Markman anticipated that immunotherapy treatment would likely commence in the new year. There are potential severe toxicities and side effects associated with the treatment such that it is advisable that he remain in Victoria for management of any problems arising and to receive the treatment. Travel to Perth at that time is inadvisable.
(f) A jury trial will give an immediate verdict and there will be no additional time needed awaiting a judge’s reasons for decision. The likelihood of the plaintiff receiving a decision in his lifetime – which at the time of trial, will be a matter of months – is a highly relevant factor.
(g) The case is being managed in a specialist Dust Diseases List.
(h) Although his solicitors maintain an office in Perth, the office specialises in historical sexual abuse litigation, and not dust diseases litigation.
Consideration
The law of Western Australia applies, so the starting point is that a Western Australian Court would ordinarily apply that law. However, relevantly the common law applicable to a claim in negligence is not appreciably different between Victoria and Western Australia and it is unlikely that a trial judge in Victoria would face any great difficulty in applying the common law, or charging a jury as to the law. While it is true that the breach of statutory duty claim relates to Western Australian regulations and not the equivalent Victorian regulations, it is not suggested that there is any difficulty in principle that would arise. Similarly, if contribution is an issue as between defendants, it is not suggested that Western Australian law is in substance different to the determination of contribution on a ‘just and reasonable’ test that appears in the Wrongs Act 1958 (Vic).
Equally both the Western Australian Court and this Court have a capacity to manage expedited cases. The second defendant submits that, if the case is transferred, the present timetabling orders, sought by consent although not yet pronounced, would remain in place on any transfer. Apart from the difference in the timing of a decision following a trial arising from whether it is heard by judge alone or with a jury, the capacity of the court to manage the urgency of the case does not powerfully favour one court over the other in this case. It is not necessary in this case to consider whether the availability of a jury in Victoria and the immediate outcome being known by a jury verdict weighs against Western Australia being a more appropriate forum, because, without reference to the mode of trial, I have formed the view that Western Australia is not a more appropriate forum.
Although both defendants operate in Western Australia, they are companies with a business presence beyond that state. The first defendant has retained Melbourne solicitors, the second defendant, Sydney solicitors. The plaintiff’s solicitors maintain a Perth office. The ability of the lawyers to conduct litigation in either forum is a neutral factor. No particular difficulty is identified by the second defendant in participating in the litigation if it remained in Victoria, other than the location of their likely witnesses.
Those witnesses potentially to be called by the second defendant are identified as Perth-based in-house legal counsel and an employed occupational hygienist, together with other, as yet unidentified, employees or former employees. Dr Barry Chesson, a Perth-based occupational hygienist who was engaged by the second defendant at the time of the alleged exposure, is also identified as a witness. Other unidentified expert witnesses are mentioned. They are likely to be liability witnesses. I would anticipate that any medical witness, if the second defendant wishes to obtain its own medical opinion, would likely be a Melbourne-based expert who could examine the plaintiff for the purpose of providing a report, regardless of where the trial might be held.
The issue of witness location being potentially spread between Western Australia and Victoria demonstrates that in either location, some witnesses will be inconvenienced if it is necessary to give evidence in person. To some extent that can be ameliorated by the use of audio-visual link. The second defendant’s indication that it would consent to all of the plaintiff’s witnesses giving evidence by audio-visual link would suggest that it would equally be prepared for all of its witnesses to give evidence by audio-visual link if the matter is to proceed in Victoria. However, in my view the interests of justice ought reflect the fact that, where possible, the Court ought hear the best evidence by hearing from witnesses in person. Health, substantial travel or other circumstances will require departure from this position in respect of particular witnesses and, even where both parties consent, leave of the Court to take evidence in this fashion is necessary.[8] It does not follow that a court would accommodate a course of action permitting all witnesses to give evidence by audio-visual link for their convenience, even if by consent, unless good reason for not calling the witness in person was demonstrated. That does not reduce the question to one simply of numbers of witnesses at one or other location but also the nature of those witnesses and the importance of their evidence to the issues in dispute. Defences have not yet been filed. The potential witnesses of the defendant have not yet been identified and so their importance, apart from Dr Chesson, is difficult to assess. Whilst it is no doubt inconvenient to travel to Victoria to give evidence, it was not said that, if necessary, they would be unable to do so.
[8]In Victoria see s 42E of the Evidence (Miscellaneous Provisions) Act 1958.
In recent times, by necessity, audio-visual links have been used to take all evidence. There is a continuing place for the use of technology where the cost and efficiency is gained and where vulnerable, remote and unwell witnesses give evidence. However, the use of technology should in my view remain simply a tool that has an appropriate place in a trial, but not a default manner to conduct a trial. It lacks the dynamic interaction of people in an actual courtroom. In my experience receiving evidence given in person is generally more satisfactory than that received by audio-visual link.
In Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3),[9] Buchanan J said:
…the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. I do not share the view expressed by Katz J. My own view and, I think, the weight of authority, is to the contrary.
In my opinion, these are powerful considerations. A trial is, in fact, a public event in which witnesses are confronted by their cross-examiners and in which they give evidence in front of the very people who are involved in the case. The giving of evidence by video link is unsatisfactory in a number of ways. That is not to say that in some cases it is not appropriate.[10]
[9](2009) 181 FCR 152.
[10]Ibid [45]–[46].
The plaintiff’s residence in Victoria is a relevant factor of significant weight in determining the appropriate forum. The fact of his residence in Victoria is not the same thing as his choice of forum, although in this instance the two coincide. While his choice of forum is not given any particular weight, his residence clearly should be. His position can be contrasted with that of the plaintiff in Schultz for example whose residence was in South Australia but who chose to issue in NSW.
In some circumstances the residence of a plaintiff will carry less weight where by the time of trial their medical condition will be so precarious that they will be unable to attend court to give their evidence. Such was the case in Eden v Amaca Pty Ltd & Ors,[11] where a plaintiff resident in Tasmania issued in Victoria and faced an application to transfer to the Supreme Court of Queensland. In that case Kaye J said:
The plaintiff resides in north-west Tasmania. The debate whether the Supreme Court of Victoria or the Supreme Court of Tasmania would be more accessible to him is, regrettably, probably academic. I doubt that the plaintiff would be able to make the trip to either Court, given his parlous medical state.[12]
[11][2007] VSC 374.
[12]Ibid [17].
Similarly in Thompson v Amaca Pty Ltd & Anor,[13] relied on by the second defendant, the plaintiff was in such poor health that his evidence was most likely to be taken de bene esse and as such his ability to participate in the eventual trial was not a significant consideration.
[13][2014] VSC 169.
The plaintiff lives in Victoria and is approaching significant medical treatment in Melbourne. In my view the plaintiff’s wish to participate in his own trial, both in giving his evidence and being present in court for as much of the duration of the trial as he is able, is a weighty factor. The medical reports would suggest that this may well be possible at a trial starting on 6 March 2024. This is obviously subject to whether the immunotherapy treatment has commenced and his ability to tolerate it, or other substantial deterioration in his health between now and then. It is clear from Dr Markman’s report that if the plaintiff was required to travel to Perth in order to be present for his case, this would risk substantial medical complications. The need to take evidence de bene esse is essentially a precautionary matter to preserve evidence for trial where a person will be unable to give evidence, whether in person or by audio-visual link, at a later time. If it is needed, it will be because the plaintiff will be unable to give evidence at the time of his trial no matter where it is held. On the present medical evidence the plaintiff may well be able to give evidence in person in Melbourne at trial.
A trial in Western Australia will have the effect of depriving the plaintiff of this ability to participate in his own trial in person, even if his health would otherwise permit him to do so, because of the travel commitment involved and the risk to his health and life expectancy that such travel would present. In those circumstances his ability to participate, and therefore the quality of his access to justice, would be diminished by a transfer of the case. This is a powerful factor telling against Western Australia as a more appropriate forum in the interests of justice. His ability to access justice should permit him to place his evidence before the decision-maker, and to hear the evidence challenging the relief that he seeks, whether that be judge or jury, in person if he is medically able to. He should not be deprived of this participation by the effect of a transfer.
Given the significant medical risk facing the plaintiff if he were required to travel to Perth in the new year for his trial, and the limitation on him participating in his own trial imposed by that risk, in my view this means that Western Australia is not a more appropriate forum and it is not otherwise in the interests of justice to transfer this proceeding to that Court.
The second defendant’s summons filed 26 October 2023 should be dismissed.
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