Wittern v Amaca Pty Ltd
[2016] VSC 40
•10 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST AND DISEASES LIST
S CI 2015 06214
| WOLFGANG WITTERN | Plaintiff |
| v | |
| AMACA PTY LTD (FORMERLY JAMES HARDIE AND COY LTD LTD) (ACN 000 035 512) AND ORS | Defendant |
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| JUDGE: | ZAMMIT J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 February 2016 |
| DATE OF JUDGMENT: | 10 February 2016 |
| CASE MAY BE CITED AS: | Wittern v Amaca Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2016] VSC 40 |
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PRACTICE AND PROCEDURE – Cross vesting – Claim for damages and personal injuries – Application to transfer proceedings to Supreme Court of South Australia – Whether South Australia is more appropriate – Section 5(2)(iii) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) – Case involving a seriously ill plaintiff – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gordon | Slater & Gordon |
| For the First Defendant | Mr K O’Brien | DLA Piper |
| For the Second Defendant | Mr Morell | Colin Biggers & Paisley |
| For the Third Defendant | Mr P Coats | Minter Ellison |
| For the Fourth Defendant | Mr D McWilliams | Rosey Batt & Associates |
HER HONOUR:
Pursuant to a summons dated 3 February 2016, the first defendant, Amaca Pty Ltd (‘Amaca’) (formerly James Hardie), seeks an order that the proceeding be transferred to the Supreme Court of South Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts Cross-Vesting Act 1987 (Vic) (‘Cross Vesting Act’).
Amaca’s application is supported by the second, third and fourth defendants. It is opposed by the plaintiff, Wolfgang Wittern.
Amaca relies on the affidavits of Kieran John O’Brien, sworn 2 February 2016 and Caroline Mary Knight, affirmed 5 February 2016.
The fourth defendant, FW Hercus Pty Ltd (‘Hercus’) relies on the affidavits of: Rosemary Joy Batt sworn 5 February 2016 and Rebekah Griffith sworn 5 February 2016.
Mr Wittern relies on the affidavit of Michael Magazanik affirmed 5 February 2016.
Amaca and Mr Wittern also rely on written submissions.
Setting of background
Mr Wittern filed a writ on 7 December 2015 and a statement of claim on 29 January 2016.
Mr Wittern has also filed and served a summons dated 29 January 2016 in which he seeks amongst other things a speedy trial. The parties agreed that the cross-vesting application should be determined first. However, there was no issue raised by the defendants in relation to Mr Wittern suffering from mesothelioma and having a significantly reduced life expectancy.
Mr Wittern sues the defendants for damages for personal injury. Mr Wittern, a former electrician, alleges he contracted mesothelioma from inhaling asbestos dust and fibres when handling asbestos products manufactured by Amaca and Seltsam Pty Ltd, formerly Wunderlich, the second defendant (‘Seltsam’), in the course of his employment with the third defendant, Fleet Forge Pty Ltd (‘Fleet Forge’), and Hercus.
Between paragraphs [7] and [20] of Mr Wittern’s statement of claim, it is alleged that:
(a) between 1955 and 1957 Mr Wittern worked as an electrician for Fleet Forge in the State of Victoria (‘Fleet Forge work’);
(b) between 1959 and 1964 Mr Wittern worked as a builders labourer for Owen Gillings, a builder in Cleve in the State of South Australia, assisting in the construction of homes (‘Gillings work’);
(c) between 1969 and 1987 Mr Wittern worked as an electrician for Hercus, at its factory in Adelaide in the State of South Australia (‘the Hercus work’);
(d) performing the Fleet Forge work, the Gillings work and the Hercus work he was exposed to, and inhaled, asbestos dust from products manufactured by Amaca and Seltsam; and
(e) as a consequence of these exposures, he has suffered various injuries, including mesothelioma.
Mr O’Brien deposes to the following:
(a) Mr Wittern resides in South Australia in an aged care facility;
(b) proof of Mr Wittern’s alleged exposure to dust and asbestos fibres will more likely involve the calling of predominantly South Australian witnesses and evidence including but not limited to the collection of evidence from some of Mr Wittern’s former employers;
(c) Fleet Forge to the best of Mr O’Brien’s knowledge is a deregistered company and has no active presence within Victoria;
(d) it is Mr O’Brien’s belief that Hercus remains an active trading enterprise and is based in South Australia;
(e) as far as it is known Mr Wittern’s treating physicians and specialists who may be called by any party are likely to be exclusively located in South Australia;
(f) the Supreme Court of South Australia has expertise to deal with asbestos matters and specific reference is made by Mr O’Brien to the Dust Diseases Act 2005 (SA); and
(g) it is Mr O’Brien’s belief that the proceeding will not be unduly delayed by the transfer to South Australia. No timetable has been ordered by this Court in the form of any interlocutory steps.
Ms Knight is a director of the firm DW Fox Tucker Lawyers located in Adelaide South Australia. Ms Knight deposes that she has been conducting asbestos litigation in South Australia on behalf of Amaca for some eight to nine years. On 2 February 2016 Ms Knight telephoned the Deputy President of the South Australian Employment Tribunal (‘SAET’), Judge Hannon, to make enquiries about the Court’s ability to accommodate this proceeding, including an urgent trial. Ms Knight exhibits a file note of her telephone attendance dated 2 February 2016. Judge Hannon’s associate, Ms Winterford, informed Ms Knight, having spoken to Judge Hannon, that if a dust disease matter is cross-vested to South Australia from another jurisdiction it is referred to the District Court Registry and sent to the SAET on the same day. The SAET can provide a hearing date urgently. If required a directions hearing can be set for the following day. Once the matter is received the judge will determine when a hearing is required and set that date. Ms Winterford informed Ms Knight that Judge Hannon advised the process can be arranged very quickly if required and the Court could accommodate a hearing if necessary.[1]
[1]Affidavit of Caroline Mary Knight affirmed 5 February 2016, Exhibit CMK-01.
In summary Ms Batt deposes that a law clerk employed by her had spoken to a current director of Hercus, Mr Durden. Mr Durden was an apprentice employed by Hercus at the time when Mr Wittern, known as ‘Wally’, was employed by Hercus. Mr Durden told the law clerk that current and former employees were employed by Hercus as was the plaintiff and who lived predominantly in and around Adelaide South Australia. Hercus had a factory in Thebarton, South Australia, for the entire time Mr Wittern was working with Hercus. Hercus contends it now trades from a factory in Regency Park, South Australia. If the proceeding is to continue in Victoria the current employees would be required to take time off work and travel to Victoria to give evidence.
Mr Magazanik deposes that:
(a) Mr Wittern has advanced mesothelioma and is in exceptionally poor health. Mr Wittern’s general practitioner estimates that barring any catastrophic event he has little more than a couple of months to live. In the event of a catastrophic event given Mr Wittern’s frail condition, his prognosis will be a couple of days;
(b) Mr Wittern is likely to call fewer South Australian witnesses. Based on Mr Maganzanik’s experience and after assessing the defence and the defences filed, Mr Magazanik considers that if all matters of liability are contested and at the trial of this matter Mr Wittern would call the following expert witnesses:
· Dr James Leigh, medical expert resident in Sydney;
· Dr Peter Russell, former employee of James Hardie and resident in Queensland;
· Prof Roger Sinclair, pathologist resident in Melbourne; and
· Mr Michael Kottek, an industrial hygienist resident in Victoria.
(c) if necessary Mr Wittern may call one or two lay witnesses as to his South Australian exposure. In relation to the Fleet Forge work, Mr Wittern’s lawyers are conducting searches of past records of where witnesses are located. It is Mr Magazanik’s belief that they are unlikely to be resident in South Australia;
(d) it is likely that Amaca will call non-South Australian resident witnesses and Mr Magazanik deposes to this on the basis of his experience in previous asbestos trials where Amaca has frequently called witnesses from outside the State of the trial;
(e) Amaca themselves are a Sydney headquartered company and Fleet Forge is a de-registered former Victorian company;
(f) Mr Wittern’s solicitors and barrister are experienced in asbestos litigation and are resident and practice in Victoria.
(g) Mr Wittern’s first exposure to asbestos was in Victoria while an employee of Fleet Forge where he suffered substantial exposure often in confined areas; and
(h) until recently claims in South Australia were heard in the District Court. Dust disease claims are now to be heard by judges of the SAET. Mr Magazanik is not aware that any asbestos claim has yet been heard and determined by that Court.
The Law
Section 5(2)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) states that where it is otherwise in the ‘interests of justice’ that the relevant proceedings be determined by the Supreme Court of another State, the first court shall transfer the relevant proceeding to that other Supreme Court.
The High Court of Australia determined the principles relevant to deciding whether transferring proceedings to another State is in the ‘interests of justice’ in BHP Billiton Ltd v Schultz.[2] The principles were also examined by Robson J in Queensland in Irwin v Queensland.[3] Robson J determined that the relevant principles could be summarised as follows:
[2](2004) 221 CLR 400 (‘Schultz’).
[3][2011] VSC 291 [14] (‘Irwin v Queensland’).
(a)The Act requires that the [first] court should exercise the power of transfer whenever ‘it appears’ that it is in the interests of justice that it should be exercised.
(b)It is not necessary that it should appear that the first court is a ‘clearly inappropriate’ forum. It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.
(c)The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.
(d)The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.
(e)The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.
(f)It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. Rather the jurisdiction must be exercised when ‘it appears’ to the court that ‘it is in the interests of justice’ that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued. Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.
(g)The court should adopt what has been described as a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.
(h)The appropriate court is the natural forum as determined by connecting factors to that forum.
(i)Relevant connecting factors include matters of convenience and expense[4] such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.
[4]Preamble to the Act “Whereas inconvenience and expense have”.
(j)In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.
(k)If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.
(l)Factors which may be relevant to a tortious action are:
(i) The place where the wrong occurred.
(ii)Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.
(iii)The convenience of the parties and witnesses. However in this day and age this factor may not carry substantial weight because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because the provision of evidence by audio visual link.
(iv)The law governing the proceeding.
(v)The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with a particular evidentiary and procedural rules hearing particular types of cases.
(vi)The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.
(m)As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort. Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.
(n)A relevant factor is whether the coincidence of the lex fori and the lex loci delicti will avoid debates concerning substantive and procedural law.
(o)The plaintiff’s choice of forum by itself is not a relevant connecting factor.
(p)Each case depends on its own particular facts.
(q)The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.
[Footnotes omitted]
Defendants’ Submissions
The defendants submit that Mr Wittern’s case has a lack of connecting factors to Victoria. The defendants refer to Mr Wittern’s use to asbestos in Victoria being for a limited period, two years, as compared to the periods of exposure in South Australia in the Gillings work which was approximately five years and the Hercus work which was approximately 17 years, totalling almost 25 years of alleged exposure to asbestos products in the course of employment in South Australia. The defendants submit that in relation to the alleged period of exposure to asbestos in Victoria for two years, the alleged employer, Fleet Forge, is a de-registered company and therefore has no meaningful connection to the Victorian jurisdiction. It is submitted that Mr Wittern will not be able to draw on business records or witnesses located in Victoria.
The defendants’ solicitors submit that the following factors demonstrate connecting factors to South Australia:
(a) Mr Wittern resides in South Australia with his wife in an aged care facility in a suburb of Adelaide;
(b) the significant portion of exposure to asbestos occurred in South Australia;
(c) Mr Wittern’s treating medical practitioners are based in South Australia;
(d) no medical evidence has been obtained or served by any party from a Victorian based medical practitioner; and
(e) Hercus currently trades in South Australia and is a defendant likely to hold relevant business records and other material that may need to be tendered into evidence. Hercus may also wish to call witnesses that will be located in South Australia.
The defendants submit that the substantive common law of Australia referable to South Australia would apply for the overwhelming majority of the plaintiff’s exposure in South Australia to Dust Diseases Act 2005 that provides to how dust diseases claims are handled in South Australia.
The defendants refer to the decision of Thompson v Amaca Pty Ltd & Anor.[5]In that case, Justice Macaulay refused a cross-vesting application made by Amaca. At paragraph [9] of his judgment Justice Macaulay noted that a singularly important consideration in a proceeding involving a seriously ill plaintiff is that one court can offer the certainty of a speedy trial. Justice Macaulay was persuaded to keep the proceeding in Victoria because the plaintiff in that proceeding had already been granted a speedy trial date. The defendants note that this is not yet the case in the present proceeding, but accept that an application for a speedy trial is on foot and awaiting determination.
[5][2014] VSC 169.
The defendants submit that Mr Wittern’s claim for damages can be determined just as expeditiously if transferred to the Supreme Court of South Australia and they rely on the affidavit of Ms Caroline Knight sworn 5 February 2016.
The defendants submit that taking into account the above factors, the Court should order the proceeding be transferred from the Supreme Court of Victoria to the Supreme Court of South Australia for ultimate remission to the SAET.
Plaintiff’s submissions
It is submitted on behalf of Mr Wittern, that the matters relied upon by the defendants demonstrate, that it is far too early to make any informed decision on the facts or issues to determine if it is a matter in the interests of justice that this case should be cross-vested to the Supreme Court of South Australia. It is not yet known whether any, and if so which, parties will seek to contest liability issues. It is quite possible and in fact highly likely that the claim might ultimately proceed as an assessment of damages and that the Court should not assume any matter to be in issue about the likely course the litigation might take and what evidence and witnesses may need to be called.
Mr Wittern submits that the law to be applied in the determination of this claim is the substantive law of Victoria and that it was in Victoria that Mr Wittern was first substantially exposed to asbestos and the cause of action thus arises in Victoria.[6]
[6]Alcan Gove v Zabic [2015] HCA 33.
It is submitted that the Supreme Court of Victoria has jurisdiction to hear the claim.
Mr Wittern relies on the Supreme Court of Victoria’s record of bringing claims to resolution at the earliest possible time. That is, it has a dedicated list of Judges and Associate Judges experienced in ensuring claims are brought on and determined.
Mr Wittern has a dire prognosis and seeks to avail himself of the appropriateness of a court with the jurisdiction and have it determined before he dies. Mr Wittern has elected trial by jury as this will limit the prospect for appeals on factual issues and further increase the prospect of resolving the claim in his lifetime. Mr Wittern referred to the decision of Mutch v BHP Billiton Ltd & Ors.[7]
[7][2015] VSC 253 [66].
It is submitted that Mr Wittern has retained lawyers in Victoria with vast experience of claims of this sort including claims against Amaca, Seltsam and Forge. Amaca, Seltsam and Forge have all retained solicitors in Victoria who have experience in litigating claims such as this and it is submitted that this will assist in the expedited resolution of the claim. It is noted that Amaca and Seltsam are companies based in New South Wales and have in the past dealt without difficulty claims involving plaintiffs who live elsewhere.
Mr Wittern’s condition is such that he will likely give evidence from his home by de bene esse. It is submitted that if he can, Mr Wittern will travel to Victoria to give evidence. In any event it is submitted that this matter will not inconvenience any other party.
It is submitted that depending on the matters that are pleaded and put into issue, Mr Wittern is likely to call witnesses from Melbourne including a pathologist, if diagnosis is disputed, and an industrial hygienist. Mr Wittern will endeavour to call evidence of other workers who worked at Fleet Forge if the parties contest liability and such witnesses are most likely to be in Victoria. It is submitted that if Amaca disputes foreseeability of witnesses from Queensland, Mr Russell Peters will be called and if expert evidence of causation is required, that is if it is put into issue, Dr James Leigh from New South Wales will be called.
It is also submitted that if Mr Wittern’s treating doctors are called, they are likely to give video-linked evidence and that it is too early to say whether any other evidence from South Australia is required for Mr Wittern’s case. It was noted that a request had been made by Fleet Forge to have Mr Wittern medically examined by Professor Richard Fox who practices in Melbourne. However, from the Bar table Mr Coats on behalf of Fleet Forge, indicated that if the matter is transferred to South Australia Professor Fox will not be required to examine Mr Wittern.
It was submitted that Mr O’Brien has not nominated any witness in Adelaide that Amaca will call in the event that it contests foreseeability, duty or breach. The Australian manager of Amaca at the relevant time was John B Reid and he resides in New South Wales.
Mr Wittern refers to the matter of King v Amaca,[8] a claim involving exposure in Western Australia heard in the Supreme Court of Victoria. In that matter Amaca called witnesses only from New South Wales. No witness that might be called by any other party is nominated by Mr O’Brien. Mr Wittern submits that therefore subject to what matters are in issue, the potential witness list is witnesses from Victoria, New South Wales, Queensland and South Australia.
[8][2011] VSC 433.
It is also submitted on behalf of Mr Wittern that the SAET has no experience in dealing with these claims and that it will be a new process for that court. At the very least, if the claim is cross-vested to South Australia, there will need to be a stay even if briefly. The claim will need to be cross-vested to the South Australian Supreme Court, then remitted to the SAET which will include a further procedural step which will complicate and delay the claim. This is compared to the proceeding which currently has a speedy trial application which can and will be heard forthwith and an experienced court dealing with speedy trials.
Mr Wittern submits that the interests of justice compel the matter proceed as expeditiously as possible in this Court and that the parties should engage their time and energy accomplishing a swift resolution in this Court.
Decision
Mr Wittern is seriously ill. A speedy trial application was issued on 29 January 2015 and, if the current application is unsuccessful, the speedy trial application will be determined immediately. There was no submission by any of the defendants that they would oppose Mr Wittern’s application for a speedy trial or the orders sought.
This Court has the experience and the resources to accommodate Mr Wittern with a speedy trial, including a pre-trial conference, in a very short period of time. As the judge in charge of the Dust and Diseases List in the Supreme Court of Victoria, I routinely hear speedy trial applications such as Mr Wittern’s pending application, and there is no reason why an interlocutory timetable and hearing date would not be provided: forthwith accommodating a very short interlocutory timetable and trial date. Thus, even though the speedy trial application has not been heard and tested, it does not create any uncertainty for this matter in this jurisdiction. Equally, the affidavit of Ms Knight, indicates that if the matter is transferred to South Australia, all steps will be taken to ensure the matter is heard expeditiously and that the SAET would be able to accommodate it urgently.
As deposed to, it has recently been determined that the dust claims in South Australia are heard in the SAET. The SAET will therefore be in a period where the processes for dealing with dust diseases claims is relatively new. This does not mean that the SAET will not accommodate Mr Wittern’s claim or that there is not the relevant judicial experience within the jurisdiction. There will, of course, be some delay, albeit minimal, just in the process of transferring the claim if the defendants are successful.
The evidence before the Court is that Mr Wittern’s life expectancy could be as little as days in the event of a catastrophic event, given his frail condition.[9] As such, any delay would cause significant prejudice and inconvenience to Mr Wittern’s claim.
[9]Affidavit of Michael Magazanik sworn 5 February 2016 at [4] and Exhibit MM1.
There is an issue as to the law governing the proceeding. That ultimately is an issue for trial, and not one that needs to be determined for the purpose of this application. In this case, Victoria and South Australia are places where the alleged wrongs occurred. The first exposure was in Victoria, while the two significant longer periods of exposure were in South Australia.
I accept that South Australia has specific legislation dealing with dust diseases, namely, the Dust Diseases Act 2005 (SA). However, I do not consider that the hearing of the determination of a proceeding in Victoria would lead to any difficult choice of law issue. Further, one of the main causes of action in this proceeding is based solely on common law negligence. There is only one common law of Australia[10] and, accordingly, there is no material significant difference between the law of Victoria and the law of South Australia that would apply to the cause of action. I note that Mr Wittern pleads breach of statutory duty, that is, breaches of the Health Act 1935 (SA) and Health Regulations 1968 (SA) and Industrial Code 1967 (SA) against Hercus.
[10]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 203 CLR 89, 152, [135].
There was no submission by the defendants that there is any material or significant difference between the law of Victoria and the law of South Australia, in relation to the causes of actions relied upon in this case. Furthermore, even if the relevant laws are the laws of South Australia, this would be no barrier to the proper administration of justice in this case. Judges of the Supreme Court of Victoria are practised in applying the laws of other jurisdictions, including South Australia. Other than naming the relevant South Australian statutes in relation to personal injuries litigation, no submissions were made by the defendant as to how the choice of laws would have a particular bearing on the conduct and determination of the proceeding.
For the reasons I have mentioned, the choice of law issues appears limited. Even if I regard as the starting point the place of the alleged wrong to be South Australia (which I have not formed the view), and I do not give it considerable weight, I do not consider that the choice of law issues are so significant as to be determinative or decisive in this case.
Contending affidavits reflect that the District Court (of South Australia) and the SAET and the Victorian Supreme Court have practices and provisions that can aid in having an expedited hearing for people with shortened life expectancies like Mr Wittern. The capability of this Court to hear and determine the case with substantial expedition is a relevant consideration to be taken into account in determining whether the interests of justice require a transfer as sought in this case. Even if the connecting factors to Victoria are slight, I do not accept that it was otherwise in the interests of justice that this case be transferred to South Australia.
This is a jury action. One advantage for both parties of a jury action is that the parties get a quick decision. The jury does not give reasons. By contrast, dust disease claims in the SAET are heard by judge alone. As noted by Cavanough J in Mutch v BHP Billiton Ltd & Ors:[11]
66.… By contrast, dust disease claims in the District Court of South Australia are heard by judge alone. In the case of Shaw referred to above, which was decided earlier this year, the reasons for judgment extended to some 887 paragraphs. Earlier dust disease claims in that Court have also resulted in lengthy judgments.
[Footnotes omitted]
[11][2015] VSC 253, [66]–[67].
The only lay witnesses identified by the defendants are five current and former employees of Hercus.[12] It is not clear which medical witnesses, if any, will be required to give evidence. I accept that Mr Wittern’s treating doctors are located in South Australia. Amaca and Seltsam have not identified any witnesses they intend to call and the companies are Sydney-based. Mr Gordon indicated that, depending on the issues in dispute, Mr Wittern’s solicitors will endeavour, on his behalf, to locate witnesses that were employed in the Fleet Forge period of employment. They are most likely from Victoria.
[12]Affidavit Rosemary Batt sworn 5 February 2016 at 3(c).
In relation to the South Australian-based doctors, their evidence can be given by video link.
Based on the medical evidence of Mr Wittern’s general practitioner, Dr De Le Poidevin, it is likely that Mr Wittern will give any evidence from his home by de bene esse. If he can, it is submitted, Mr Wittern will travel to Victoria to give evidence. Ultimately, it is a matter for Mr Wittern if, in his condition, he is prepared to travel to Victoria. This factor does not inconvenience the defendants.
Depending on the issues in dispute, Mr Wittern may call a pathologist and an industrial hygienist, both from Melbourne. Mr Gordon submits that if Amaca disputes foreseeability, a witness from Queensland, Mr Peter Russell, will be called, and if expert evidence on causation is required, Dr Leigh James will be called on behalf of Mr Wittern. This was not disputed by the defendants. Amaca did not dispute Mr Magazanik’s evidence at paragraphs 7 and 8 of his affidavit sworn 5 February 2016, that at previous asbestos trials, Amaca has frequently called witnesses outside the State of the trial.
Finally, Mr Gordon submits that Amaca’s application is premature and that it is not known what issues will be in dispute and therefore what witnesses will be required. Conversely, the defendants note that Macaulay J in Thompson v Amaca Pty Ltd,[13] determined that the fact that the plaintiff in that case had been guaranteed a speedy trial and had a trial date as compared to the capacity of the Queensland Supreme Court’s ability to hear the case at the time remained uncertain was an important deciding factor for dismissing the application that the proceeding be cross-vested to the Queensland jurisdiction. As I have already said, I am satisfied that the SAET and this Court can and will accommodate Mr Wittern’s case to ensure it is heard urgently. Perhaps an area of less certainty is that this Court has, in addition to the judges, the ability to facilitate and expedite the pre-trial conference process, which will assist in the narrowing of issues in dispute between the parties, including any contribution dispute issues, and possibly assist the resolution of the claim. I consider this to be an important factor when considering what is in the interests of justice.
[13][2014] VSC 169, [8] and [9].
In conclusion, an important factor in this case is the relative certainty that this seriously ill gentleman can have his claim heard in a short space of time in Victoria and can be accommodated in relation to the pre-trial conferences. While I note that there is a high degree of certainty that it can be accommodated in the SAET in an equivalent timeframe, the SAET have only recently begun hearing such matters and there is no evidence in relation to expedition in relation to the pre-trial conference process.
The evidence reveals that, because of his current state of health and prognosis, wherever the trial takes place it is most likely he will give his evidence by de bene esse examination. Apart from Mr Wittern, there are, at this stage, four or five lay witnesses identified by Hercus. Given the timing of this application, it is also likely that the medical witnesses, that is, Mr Wittern’s treating doctors, will be based in South Australia. However, I accept that if all issues are in dispute, other witnesses called by the plaintiff are not located in South Australia. Accordingly, in terms of convenience to the lay and specialist witnesses in attending one Court or the other, the factor weighs slightly in favour of the defendants’ submissions. In any event, the parties did not seem to be concerned that some or all of the witnesses 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.
Amaca did not point to any inconvenience or added expense to it should the case be heard in Victoria, rather than South Australia. Curiously, it relied upon the inconvenience to Mr Wittern, who opposes the transfer application, if the case were to be heard in a State other than where he resides. Mr Wittern himself does not claim that he will be inconvenienced.
Taking into account all of the matters to which I have referred above, I am not satisfied that South Australia is a more appropriate forum for the hearing and determination of this proceeding. I am not satisfied that it is in the interests of justice to transfer this proceeding to South Australia. The Court should endeavour, where appropriate, to facilitate equal access to justice for all. The defendants did not suggest that the retention of this case in Victoria would inhibit their ability to obtain access to justice in any way.
The orders I propose to make are:
(1)The first defendant’s application by summons filed 29 January 2016 be dismissed.
(2)Subject to any submissions, the defendants pay the plaintiff’s costs, of and incidental to the application, to be taxed in default of agreement.
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