Supreme Court New South Wales

• Medium Neutral Citation: BHP BILLITON v HARWOOD [2011] NSWSC 680
• Hearing dates: 29 June 2011
• Decision date: 06 July 2011
• Before: HOEBEN J

Decision

(1) I order pursuant to s8 of the Jurisdiction of Courts (Cross-Vesting) Act that proceedings No 74/2011 pending in the Dust Diseases Tribunal of New South Wales between BHP Billiton Limited (the plaintiff) as the defendant and Raymond Harwood (the defendant) as the plaintiff ("the DDT proceedings") be removed into the Common Law Division of this Court.

(2) I order that pursuant to s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act that the DDT proceedings when removed into this Court be transferred to the Supreme Court of South Australia.

(3) I reserve the question of costs.

• Catchwords: CROSS-VESTING APPLICATION - proceedings commenced in Dust Diseases Tribunal of NSW - plaintiff in those proceedings suffering from mesothelioma - application to transfer proceedings to Supreme Court of South Australia - interests of justice - special procedures to facilitate hearing available in both jurisdictions - importance of coincidence of lex loci delicti and lex fori - natural forum is South Australia - proceedings should be transferred.
• Legislation Cited: Dust Diseases Tribunal Act (NSW); Industrial Code 1967 (SA); Industrial Safety Health and Welfare Act 1972 (SA); Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
• Cases Cited: Abel v Amaca Pty Limited [2010] SADC 98; Amaca v Harris [2005] NSWSC 622; BHP Billiton Limited v Schultz & Ors [2004] HCA 61, (2004) 221 CLR 400; BHP Billiton Limited v Utting & Anor [2005] NSWSC 260; Caltex Refineries (Queensland) Pty Limited v Stavar & Ors [2008] NSWSC 223; James Hardie & Co Pty Limited v Barry [2000] NSWCA 353, (2000) 50 NSWLR 357; Spiliada Maritime Corporation v Cansulex Limited (1987) AC 460; Sullivan v Gordon (1999) 47 NSWLR 319
• Category: Principal judgment
• Parties: BHP BILLITON LIMITED - Plaintiff; Raymond HARWOOD - Defendant
• Representation: Counsel: TGR Parker SC/D Anderson - Plaintiff; PCB Semmler QC/S Tzouganatos - Defendant; Solicitors: Piper Alderman Lawyers - Plaintiff
• File Number(s): 2011/00063214

Judgment

1 HIS HONOUR:

Nature of proceedings

BHP Billiton Limited (BHPB) (a company registered in Victoria and having places of business throughout Australia) seeks an order pursuant to s8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("the Cross-Vesting Act") removing into the Common Law Division of the Supreme Court of New South Wales proceedings in the Dust Diseases Tribunal of NSW ("the Tribunal") being matter No 74 of 2011 ("the DDT proceedings"). In the DDT proceedings the defendant, Raymond Harwood, is the plaintiff and BHPB is the defendant.

2 Should such a removal be ordered, BHPB seeks an order pursuant to s5(2)(b)(iii) of the Cross-Vesting Act for the transfer of the removed proceedings from the Supreme Court of New South Wales to the Supreme Court of South Australia.

3 Sections 5 and 8 of the Cross-Vesting Act relevantly provide:

"8(1) Where:

(a) a proceeding (in this subsection referred to as the " relevant proceeding" ) is pending in:

...

(ii) a Tribunal established by or under an Act, and

(b) it appears to the Supreme Court that:

...

(ii) an order should be made under this sub-section in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court,

the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court."

Section 5(2):

"5(2) Where:

(a) a proceeding (in this sub-section 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:

...

(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."

Factual background

4 Mr Harwood was born in October 1940 in Portsmouth in the United Kingdom and is now aged 70. Between 1955 and 1967 he was employed at the Portsmouth Dockyards and was regularly exposed to asbestos dust and fibre. Between January 1968 and April 1971 he was employed by BHPB as a welder at the Whyalla Shipbuilding Dockyard in South Australia. He says that during this period he was regularly exposed to asbestos dust and fibre. Between 1971 and 1999 Mr Harwood worked for other employers and except for a brief occasion in Tasmania, was not exposed to asbestos. Mr Harwood's assessment of his levels of exposure to asbestos is 70 percent whilst employed at the dockyards in Portsmouth and 30 percent whilst employed at Whyalla.

5 Since 1985 Mr Harwood has resided at Toormina in New South Wales. He began feeling short of breath in November 2010. He sought medical treatment. Following a series of tests he was admitted to the John Hunter Hospital in Newcastle. On 16 February 2011 he was diagnosed with mesothelioma by Dr Singh, his treating thoracic surgeon. Dr McEvoy, a respiratory physician, has provided an estimate of life expectancy for Mr Harwood of 18 months from the date of diagnosis.

6 Mr Harwood's treating doctors are located as follows: Dr Bruce, consultant physician, at Coffs Harbour; Dr Singh, thoracic surgeon at Gateshead; Dr McEvoy, respiratory physician, at Brisbane.

7 Mr Harwood commenced proceedings by way of Statement of Claim in the Tribunal on 22 March 2011. The solicitors for BHPB were notified on 25 March 2011. By letter dated 7 April 2011 the solicitors for BHPB foreshadowed to the solicitors for Mr Harwood their intention to make a Cross-Vesting application. On 5 May 2011 the Statement of Claim and Form 1 were served on the solicitors for BHPB, who had agreed to accept service. On 10 May 2011 the Summons seeking to cross-vest the proceedings in the Tribunal was filed in the Supreme Court of New South Wales.

8 In the DDT proceedings Mr Harwood alleges that between January 1968 and April 1971 while employed by BHPB at Whyalla, he inhaled asbestos dust and fibre as a result of his use of asbestos blankets and his proximity to other tradesmen who handled, cut, removed and applied insulation materials containing asbestos. He alleges that his injuries were caused by BHPB's negligence and its breaches of contractual and statutory duties owed to him. The statutory duties are said to arise from provisions of the Industrial Code 1967 (SA), the Industrial Safety Health and Welfare Act 1972 (SA ) , and Regulations made thereunder.

9 The Form 1 document comprises 37 pages and is in the form of a statutory declaration. This document is required to be filed as part of the Claims Resolution Process (CRP) which plaintiffs before the Tribunal are required to complete before any hearing before the Tribunal can take place. The Form 1 contains Mr Harwood's personal details, the medical evidence, a summary of his work history, a detailed statement of his exposure history and particulars of his claim for damages.

10 In accordance with the CRP, the DDT proceedings are subject to a timetable. This timetable provides for the exchange of medical reports and culminates in a compulsory mediation which in Mr Harwood's case has been fixed for 8 July 2011. A mediator has been appointed for that mediation. If the mediation is unsuccessful, the matter will be listed before the Tribunal shortly thereafter for directions.

11 It was common ground that the Tribunal has not heard a contested case against BHPB relating to asbestos exposure at Whyalla. Before the decision of the High Court in BHP Billiton Limited v Schultz & Ors [2004] HCA 61, (2004) 221 CLR 400, hundreds of claims were apparently brought in the Tribunal against BHP relating to asbestos exposure at Whyalla but all of these settled. Since 2004 there have been four matters heard by the South Australian District Court in which BHPB was a defendant and which involved claims by plaintiffs arising from exposure to asbestos, dust and fibre at Whyalla. No judgment has yet been handed down in those matters but the Court was advised that in the matter of Parker , judgment is to be handed down on 18 July 2011.

12 Details of those claims are:

"Kenneth John Cadoo (as legal personal representative of the Estate of the late William John Cadoo) v BHP Billiton (exposure 1961 - 1963) - judgment reserved 16 December 2009, but supplementary written submissions were received on 17 December 2010.

William James v Parker v BHP Billiton (exposure 1964 - 1966, 1970 - 1977) - judgment reserved 16 December 2009 but supplementary written submissions were received on 17 December 2010.

Lynette Shaw (as legal personal representative of the late Rodney King) v BHP Billiton (exposure 1967 - 1972) - judgment reserved on 24 December 2010.

Margaret Hamilton (as executrix of the Estate of the late Raymond Charles Hamilton) v BHP Billiton (exposure 1964 - 1965) - judgment reserved 24 February 2011.

13 The Parker and Cadoo cases were heard together. It is apparent that each of those matters involved hard fought litigation. The Parker and Cadoo matters occupied 24 sitting days. The Shaw matter occupied 16 sitting days and the Hamilton matter occupied almost three weeks of hearing time.

14 Some understanding of why these cases occupied so much time can be seen from the evidence of Mr Hay, solicitor for BHPB, under cross-examination:

"HAY: ... throughout the actual course of the running of Mr Parker's case the particulars from the plaintiff were expanded upon, the expert evidence that the plaintiff sought to call was expanded upon, the witnesses that they were due to call was expanded upon. There was an application to amend the statement of claim in the middle of it. So there was a lot going on in that particular case in the Parker case.

...Including the tendering of over something like 40 or 45 ring binders of materials said to be relevant.

...

Q. And I would suggest to you, Mr Hay, that based on that extensive experience you would agree that the cases like the Parker, Cadoo proceedings would have been dealt with in significantly less time in the DDT than it took the South Australian court to hear the evidence, correct?

...

HAY: I'm not so sure that that is necessarily the case because of the way the matter was run. I cannot really answer that question because I've never been involved in, in a Tribunal case which has had so many twists and turns and so much documentary evidence sought to be tendered, the amount of witnesses that were called and the objections in relation to the expert evidence et cetera.

Q. Could I respectfully suggest to you when you talk about the way it was run your client took every point in that litigation, in the Cadoo litigation, didn't it?

A. I don't understand what "every point" means. If you want to talk about the way the matter was conducted there were over 45 binders of materials tendered by the plaintiff. In light of the decision of the Court of Appeal in the Riley case, if those documents were not objected to then they would be accepted into the court.

So it was a matter, the matter, the way it was run was basically dictated by the amount of material sought to be tendered, the fact that the particulars changed midway through the case, the fact that they wanted to amend the pleadings in the middle of the case, call an extra witness, Mrs Becklake. So she, I think she is in her 90s and she gave evidence without a report so it was necessary to attempt to cross-examine without a report from Mrs Becklake." (T.11-12)

15 In the course of those hearings, the plaintiffs called 10 lay witnesses who had been employed at Whyalla by BHPB as insulation contractors. Their evidence covered the period relevant to the present matter, i.e. 1968 - 1971, or described practices which they said were the same as those described by Mr Harwood in his Form 1 statement.

16 In those matters, evidence was given by experts on the issues of foreseeability and causation. Those experts included Gordon Stewart, Margaret Becklake, Professor Douglas Henderson, Michael Kottek, Alan Rodgers, Dr Ral Antic and Associate Professor Brian Smith. Some of that evidence is still the subject of final rulings as to admissibility.

17 The District Court of South Australia has set up a special Dust Diseases List and has procedures which will allow for the rapid hearing of matters, particularly where the deterioration of a plaintiff's health is involved. In his affidavit of 27 May 2011 Mr Hay gave the example of a matter involving John Raymond Matters in which BHPB was joined as a third party in February 2011. In March 2011 BHPB made an application seeking that the plaintiff's evidence be taken on commission as soon as practicable. That evidence was in fact taken on 15 April 2011 and the trial commenced on 2 May 2011. Mr Hay said that the evidence could have been taken earlier and the trial could have commenced earlier had counsel been available.

18 Evidence was given of a conversation between a solicitor for the defendant and Mr Adam Wilson, Senior Associate of the Industrial Relations Court of South Australia. Matters in the Dust Diseases List have been allocated to the Industrial Relations Court whose judges hold commissions as District Court Judges. This evidence was as follows:

"JD: My name is JD. I am calling from Piper Alderman Lawyers. I have been advised by the District Court Registry to speak with you regarding inquiries relating to the Dust Diseases List. There is a matter where the plaintiff lives in Coffs Harbour (NSW) and has mesothelioma. If the claim was filed in the District Court of South Australia, how quickly could it be dealt with? Specifically, how quickly could the plaintiff's evidence be taken? If his condition deteriorates could his evidence be taken in Coffs Harbour? Assuming a two to three week hearing how soon could the matter be listed?

AW: The plaintiff's evidence could be taken at a day's notice or even potentially the same day a request is made. We can start making these arrangements even if proceedings have not yet been filed.

A Judge has recently flown to Sydney to take evidence of a plaintiff at short notice so this type of thing has been done before.

If a plaintiff resides in Coffs Harbour, as much notice as possible should be provided to arrange flights. A few days' notice should be sufficient.

You should contact the Registry as soon as possible so that arrangements can be made.

If necessary a trial could be scheduled within a few weeks of the parties being ready to proceed. It is the practice of the Court to reschedule other matters and give priority to urgent cases. A trial could proceed very quickly after the parties notify the Court they are ready to proceed."

19 It was Mr Hay's evidence that BHPB was prepared to take the evidence of Mr Harwood on commission forthwith if necessary.

20 The following legislation is relevant to the application and was referred to in submissions:

Section 25 of the Dust Diseases Tribunal Act (NSW) (DDTA) relevantly provides:

" 25 Evidence in proceedings before the Tribunal

...

(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties."

Section 25B of the DDTA provides:

" 25B General issues already determined

(1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.

(2) In deciding whether to grant leave for the purposes of subsection (1), the Tribunal is to have regard to:

(a) the availability of new evidence (whether or not previously available), and

(b) the manner in which the other proceedings referred to in that subsection were conducted, and

(c) such other matters as the Tribunal considers to be relevant.

(3) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances or (without limitation) in relation to specified kinds of issues.

(4) This section does not affect any other law relating to matters of which judicial notice can be taken or about which proof is not required."

21 Sections 8 and 9 of the Dust Diseases Act 2005 (SA) (DDA) relevantly provide:

"8 Evidentiary presumptions and special rules of evidence and procedure

(1) If it is established in a dust disease action that a person (the injured person ) -

(a) suffers or suffered from a dust disease; and

(b) was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,

it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease.

(2) A person who, at a particular time, carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed, in the absence of proof to the contrary, to have known at the relevant time that exposure to asbestos dust could result in a dust disease.

(3) The following rules apply in a dust disease action:

(a) the Court may admit evidence admitted in an earlier dust disease action against the same defendant (including in a dust disease action brought in a court of the Commonwealth or another State or Territory);

(b) the Court may dispense with proof of any matter that appears to the Court to be not seriously in dispute;

(c) the Court may invite a party to admit facts of a formal nature, or facts that are peripheral to the major issues in dispute, and may, if the party declines to do so, award the costs of proving those facts against the party.

(4) If -

(a) a finding of fact has been made in a dust disease action by a court of this State, the Commonwealth or another State or Territory; and

(b) the finding is, in the Court's opinion, of relevance to a dust disease action before the court,

the Court may admit the finding into evidence and indicate to the parties that it proposes to make a corresponding finding in the case presently before the Court unless the party who would be adversely affected satisfies the Court that such a finding is inappropriate to the circumstances of the present case.

9 Damages

...

(2) The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant -

(a) knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person's exposure to asbestos dust; and

(b) knew, at the time of the injured person's exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.

(3) Despite any other Act or law, the Court must, when determining damages in a dust disease action, compensate, as a separate head of damage, any loss or impairment of the injured person's capacity to perform domestic services for another person.

Note -

This subsection is intended to restore the effect of Sullivan v Gordon (1999) 47 NSWLR 319."

22 Mr Hay identified the following issues as likely to arise in Mr Harwood's claim:

(i) The extent of his exposure while employed at Whyalla.

(ii) The reasonable foreseeability of risk.

(iii) Breach of duty, i.e. what measures were reasonably available at the time to eliminate or reduce exposure to asbestos.

(iv) Causation, i.e. if any such measures had been taken would they have avoided the harm to Mr Harwood in view of his extensive exposure to asbestos in the United Kingdom.

(v) The quantum of compensatory damages.

(vi) The interpretation of the South Australian Occupational Health and Safety Legislation, as pleaded by Mr Harwood.

(vii) The interpretation of s9(2) DDA regarding exemplary damages.

(viii) The interpretation of s8(1) and 8(2) DDA regarding evidentiary presumptions and special rules of evidence.

(ix) The interpretation of s9(3) DDA regarding Sullivan v Gordon damages.

23 In an affidavit sworn 3 June 2011 Mr Blundell, the solicitor acting on behalf of Mr Harwood, said:

"26 I am instructed by Mr Harwood that he cannot travel by airplane as a result of his condition of mesothelioma. From my experience I know that the DDT has conducted hearings in the Coffs Harbour area of New South Wales and Mr Harwood's evidence could be taken at his home or at an available court in Coffs Harbour. The evidence of Mr Harwood's doctor could also be taken by the DDT in the Coffs Harbour area."

24 By letter dated 3 June 2011 the solicitors for Mr Harwood advised the solicitors for BHPB as follows:

"We are instructed by the plaintiff that at the hearing of his proceedings in the Dust Diseases Tribunal of NSW he will consent to the tender of relevant evidence admitted in proceedings BHP Billiton Limited v Kenneth Cadoo (as legal personal representative of the Estate of the late William John Cadoo) (829/2007), BHP Billiton Limited v William James Parker (1570/2006), BHP Billiton Limited v Lynette Shaw (as legal personal representative of the late Rodney King) (1168/2006) and BHP Billiton Limited v Margaret Hamilton (as executrix of the late Raymond Charles Hamilton) & Anor (743/2007) in the District Court of South Australia. Of course, this consent is subject to the plaintiff being provided with copies of the relevant evidence your client intends to rely upon."

Submissions

25 BHPB submits that the High Court decision in Schultz provides significant guidance as to how the Cross-Vesting Act should be applied and in particular, as to how the phrase "in the interests of justice" should be interpreted. BHPB submits that any advantage flowing to a plaintiff from the law of the State from which the transfer is sought should not be given any weight. BHPB makes that submission because the Court was told from the bar table that general damages awarded for mesothelioma in South Australia are approximately $100,000 whereas in the Tribunal they usually exceed $200,000.

26 In making that submission BHPB relies upon the following observation from the minority in Schultz (Gleeson CJ, McHugh and Heydon JJ) where their Honours said:

" 16 On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party."

BHPB also relies upon statements to similar effect by Gummow J at [69], Kirby J at [169] at Callinan J at [258].

27 BHPB submits that the majority judgments in Schultz demonstrate a preference for the case to be determined in the courts of the State whose law governs the claim. It relies upon the following statement of principle by Gummow J (with whom Hayne J agreed):

"99 This is not a case where there is any difficulty in locating the lex loci delicti of the tort action by Mr Schultz. It is South Australia and the courts of that State provide the forum which "gives effect to the reasonable expectation of parties" and to the policy manifested in the transfer provisions of the Cross-Vesting Act. That has the advantage for the ready resolution of the litigation that the lex fori and the lex loci delicti coincide, and debates as to classification of statutory provisions as substantive or procedural in nature cannot arise. ..."

28 At [248] Callinan J said:

"... In general it is better that the laws of a State be construed by the Supreme Court of that State for the obvious reason that that Court will be more familiar with, and will construe such laws on a frequent and consistent basis."

See also Kirby J at [170].

29 BHPB submits that there is no issue that the relevant law is the law of South Australia. If the proceedings continue before the Tribunal, it is inevitable that argument would take place as to whether DDA s8(1), s8(2), s9(2) and s9(3) are procedural or substantive. Such argument, it submits, could take a considerable amount of time and may involve appellate review before it is resolved. That argument will be avoided if the proceedings are transferred to South Australia. BHPB also submits that the interpretation of those sections and of the South Australian Occupational Health and Safety legislation should be carried out by a South Australian Court for the reasons enunciated by Callinan J.

30 BHPB submits that the location of the plaintiff in New South Wales is largely neutral. It submits that he is represented by solicitors who have an office in South Australia and substantial experience of dust litigation there, having been the solicitors on the record in the matters of Cadoo, Parker and Shaw. BHPB submits that whichever court hears Mr Harwood's case it will be necessary for that court to travel to Mr Harwood. Both the Tribunal and the South Australian District Court are able to do this.

31 It submits that if it becomes necessary to call further witnesses on liability, or if witnesses called in other cases need to be called again, those witnesses reside in South Australia. In relation to the location of medical and expert witnesses, BHPB submits that they can readily travel or give evidence by videolink. Given their location in New South Wales, the need for those medical witnesses to travel would be similar whether the matter were heard by the Tribunal or in South Australia.

32 BHPB submits that the District Court in South Australia has a special Dust Diseases List. It submits that the District Court of South Australia is just as able to conduct hearings at short notice as the Tribunal. It submits that a significant difference between a hearing in the District Court of South Australia and a hearing in the Tribunal, is that a judgment of the District Court carries full appeal rights which the majority in Schultz regarded as a relevant matter by comparison with the appeal rights from the Tribunal which are limited to point of law.

33 BHPB submits that DDA s8(4) provides a mechanism to limit re-litigation of issues already decided in other cases. This applies to decisions not only in South Australia but to decisions of other courts in "dust diseases actions" in Australia. It submits that the findings in Abel v Amaca Pty Limited [2010] SADC 98 and Parker when it is handed down would be available together with any relevant findings by the Tribunal or in any other Australian jurisdiction.

34 Similarly, BHPB submits that s8(3)(a) DDA provides a mechanism for the tender of evidence which has been previously tendered against the same defendant in any other "dust disease action". This means that all of the evidence tendered in Parker, Cadoo, King and Hamilton would be available (subject to admissibility) under this provision.

35 Those provisions are to be contrasted with s25(3) and s25B DDTA. BHPB submits that s25B restricts litigation of issues already decided in other Tribunal proceedings only and so would not apply to decisions in the District Court of South Australia. BHPB submits that s25B is, in any event, a substantive provision and could not apply to Mr Harwood's claim.

36 In relation to s25(3) DDTA, BHPB submits that it only provides a mechanism for the tender of evidence which has been previously tendered in other Tribunal proceedings. Accordingly, the evidence in Parker, Cadoo, King and Hamilton would not be available under this provision. The admission of such evidence in the Tribunal could only occur with the agreement of the parties (see [24] hereof). No other evidence from prior Tribunal proceedings has been identified as relevant to Mr Harwood's claim.

37 In summary, BHPB submits that South Australia is the natural forum for Mr Harwood's claim in that the lex fori and the lex loci delicti coincide and there are significantly more connecting features. The procedural advantages which in the past enabled proceedings in the Tribunal to progress more rapidly than proceedings in a non-specialist court, no longer provide that advantage for litigants, at least when compared with proceedings in the Dust Diseases List of the District Court of South Australia.

38 Mr Harwood submits that there would be significant costs savings in the matter continuing in the Tribunal rather than being transferred to South Australia. The basis for this submission is that proceedings in the Tribunal would be much shorter than if the matter proceeded in South Australia. He submits that over the years the Judges of the Tribunal have built up considerable expertise in dealing with asbestos-related matters, and accordingly less time would be needed by them to understand complex evidence relating to asbestos matters and less time would be required by them to hand down judgment. In that regard, reliance was placed upon the substantial amount of time over which judgments had been reserved in the matters against BHPB which had proceeded as full contests in South Australia.

39 Mr Harwood relies upon the observations of Hall J in Amaca v Harris [2005] NSWSC 622 which was a cross-vesting application to remove a matter from the Tribunal into the Supreme Court of Queensland. There his Honour said:

"59 By any measure, Mr. Harris' life expectancy must be regarded as a very short one. When so regarded, there is a need to bring into account, subject to any stronger countervailing considerations, that Mr. Harris should, prima facie, be regarded as a litigant who is entitled to the earliest possible hearing.

60 That is not to say that a deferral for a short period, say a few weeks, to permit a hearing in the Supreme Court of Queensland is not an option. But is it the preferable, appropriate or best option? In deciding whether such a course should be followed, courts are not blind to the reality that mesothelioma sufferers, given their condition and the prospects that lie ahead of them, naturally would wish to have their legal affairs attended to and put to one side as quickly as possible. It is in accordance with human understanding and compassion that they would wish to spend their last days with loved ones and friends without either the prolongation or the distraction that arises in having to deal with lawyers and legal proceedings. The point cannot, in my respectful submission, be better expressed than did Sully, J. in Zunic , a point unaffected by the point with which the High Court was concerned Schultz :-

"In those circumstances, a reasonable sense of fairness and a reasonable compassion point in the same direction; that is to say, in the direction of the taking of every proper step to ensure that Mr. Zunic has his day in Court as quickly, as simply and as efficiently as practicable ." "

40 Mr Harwood submits that there are significant connections with New South Wales. He resides in New South Wales. He receives treatment in New South Wales. All of his treating doctors, who will give evidence at trial practise in New South Wales. His wife and possibly other family members, who reside in New South Wales, will also give evidence. He says that he has no plans to call additional lay evidence from any witness currently residing in South Australia.

41 Mr Harwood submits that there is no evidence of any saving of costs if the matter were to be transferred to South Australia, rather than continue in the Tribunal. On the contrary, he submits that traditionally proceedings in the Tribunal are much shorter than in other courts so that a significant costs saving generally can be achieved if the matter is allowed to remain in the Tribunal. Mr Harwood relies upon the extent of experience and unique powers and procedures in the Tribunal which facilitate the timely and cheap resolution of dust disease claims.

42 By reference to the decision of the Court of Appeal in James Hardie & Co Pty Limited v Barry [2000] NSWCA 353, (2000) 50 NSWLR 357 Mr Harwood submits that a decisive consideration is the special procedural powers possessed by the Tribunal which will assist both plaintiffs and defendants in the efficient and economical conduct of proceedings and therefore serve the public interest. In that regard, he refers to the considerable time between the conclusion of the hearings in South Australia and the delivery of judgment when compared with the speed with which such judgments are regularly handed down in the Tribunal in relation to mesothelioma matters.

43 Mr Harwood submits that he is unable to fly, and should he wish to hear the evidence in his case, it would be necessary for him to travel by road to Adelaide, a distance of approximately 2000 kms from his place of residence near Coffs Harbour. The distance by road between Coffs Harbour and Sydney is significantly shorter, i.e. 550 kms and would be much more easily managed by him. He submits that he would be better able to instruct his solicitors if he were present at the hearing.

Consideration

44 While the decision in Schultz was based on the particular facts of that case, I agree with BHPB that it provides valuable guidance as to how the Cross-Vesting Act should be applied. In reaching their conclusions, both the majority and the minority judgments provided statements of principle which this Court should follow even if, strictly speaking, some of those observations were obiter. It follows that earlier authorities should be read by reference to what has now been authoritatively stated by the High Court in Schultz.

45 It is not without significance that the facts in Schultz are similar to the facts before the Court in this matter. The finding of the majority as to the "interests of justice" were based on the facts before them. The significant differences in the facts in Schultz and the facts in Mr Harwood's case are that Mr Harwood resides in New South Wales, as do his family and his two treating doctors. Unlike Mr Schultz, Mr Harwood suffers from mesothelioma and has a life expectancy of approximately 14 months. On the other hand, a special regime has been set in place for the hearing of dust disease cases in South Australia. That regime appears to be as flexible in its ability to hear cases urgently as the Tribunal and the regime is supported by significant legislative changes in the DDA. Four cases have now been heard in South Australia pursuant to that regime and to which the DDA applies which involve claims for dust diseases brought by plaintiffs against BHPB with respect to its activities at the Whyalla shipyards.

46 The basis for the application by BHPB is the significant weight given by the majority in Schultz to the place of the tortious wrong in a personal injury claim. Gummow and Callinan JJ each referred to the avoidance of debate as to the applicable law and as to the sometimes difficult question of whether the law is substantive or procedural where the lex fori and the lex loci delicti coincide. Given the issues which have been identified in Mr Harwood's matter, that is a significant consideration.

47 Gummow J identified the following considerations in Schultz , which required the transfer of the proceedings to South Australia:

(i) The place of the tort was South Australia.

(ii) The courts of that State provided the forum which gave effect to the reasonable expectation of the parties.

(iii) The coincidence of the lex fori and the lex loci delicti would avoid debates concerning substantive and procedural law.

(iv) To a significant degree the witnesses at trial would come from South Australia and in any event, audio-visual could avoid inconvenience to others.

48 It is useful to ask to what extent those considerations should be modified to have regard to the particular facts associated with Mr Harwood's claim? The only consideration which is directly affected is (iv). Even then, the effect is relatively minor. This is a mesothelioma case so it is difficult to see why oral evidence would be needed from Mr Harwood's treating doctors. Evidence as to the symptoms of mesothelioma as it progresses have been given in many cases. In the case of Dr McEvoy, the specialist qualified on behalf of Mr Harwood, he practises from Brisbane and would have been obliged to travel to court, either in Sydney or Adelaide, in any event. Alternatively, his evidence could be taken by videolink at either location.

49 In relation to the evidence of Mr Harwood's family, this could be taken at the same time as the evidence of Mr Harwood at his home or at a court in Coffs Harbour. Again, because this is a mesothelioma case the need for such oral evidence is unlikely except on the s9(3) DDA issue, i.e. Sullivan v Gordon damages. Such evidence, if required to be called orally from a family member, would of its nature be narrow in compass and short.

50 The force of consideration (iii) identified by Gummow J is significantly increased because of the provisions of the DDA, the effect and character of which would have to be extensively argued if the matter were to continue in the Tribunal.

51 Callinan J set out his reasoning in Schultz as follows:

"259 ...In some of the cases the expression "natural forum" has been used. I would take the expression to mean in most cases the forum of the jurisdiction in which the tort was committed. It seems to me to be only logical that at least prima facie that forum will be better equipped to deal with the issues. The events have taken place there. Some, if not most of the parties have had, and are likely to continue to have a presence there. Proximity to the courts there is likely to lead to both expedition, and savings in expense. But of at least equal importance to all of these is the fact that the events giving rise to the claim were at the time subject to, and regulated by the law of the jurisdiction where they occurred, and in respect of the evaluation of which the court of that place should be the most experienced and efficient. One relevant law will usually be the law relating to insurance. Policies are likely to have been implemented on the basis of the law there relating to damages, remedies, court and appeals. In other ways also, with respect, for example, to relations between employers and employees, the revenue laws and commercial laws, and compliance with safety and environmental standards, it may be assumed that the parties have organised their affairs with an eye to the State laws governing them. The parties' reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the court of that State. ..."

52 And at [262] his Honour said:

"262 ... It seems to me that this is a clear case for cross-vesting. The Supreme Court of South Australia is well equipped to handle the case. It can do equal justice between the parties. It can do it by applying South Australian substantive and procedural law without the necessity to distinguish between what is substantive and what is truly procedural in the unique, and far from unambiguous relevant provisions of the Tribunal Act. ..."

53 Those observations of Callinan J receive added force because of the special issues which arise in Mr Harwood's case. It was common ground that the substantive law of South Australia will have to be applied, whether the matter proceeds in the Tribunal or in the District Court of South Australia. If the matter were to continue in the Tribunal, it would have to characterise s8 and s9 DDA and decide their effect. It would also have to interpret provisions of the Industrial Code 1967 (SA) and the Industrial Safety Health and Welfare Act 1972 (SA) and Regulations made under those Acts. As Gummow and Callinan JJ make clear, those issues are best decided by the Courts of South Australia. While this consideration is not decisive, it does seem that the "natural forum" for this matter is the District Court of South Australia.

54 That, of course, does not end the matter. The Court was referred to such cases as James Hardie & Co Pty Limited v Barry [2000] NSWCA 353, (2000) 50 NSWLR 357 and to a number of first instance decisions of this Court such as BHP Billiton Limited v Utting & Anor [2005] NSWSC 260 (Simpson J); Amaca Pty Limited v Harris to which reference has already been made and Caltex Refineries (Queensland) Pty Limited v Stavar & Ors [2008] NSWSC 223 (Adams J). In all those cases, the application to cross-vest from the Tribunal was refused by this Court. The common theme in those cases and the basis for those decisions was the advantageous procedural provisions of the Tribunal, in particular s25(3) DDTA, which would not only allow a hearing to take place at short notice, but which would potentially reduce the length of the hearing thereby saving costs and enabling a result to be quickly achieved. The same submissions were made to the Court by Mr Harwood.

55 It was not disputed that the District Court of South Australia could provide a hearing date at short notice if a matter were urgent. In accordance with its guidelines, the District Court of South Australia regards a mesothelioma matter as urgent. It was not submitted that a hearing date could be obtained any more quickly in the Tribunal than it could in the District Court of South Australia.

56 Implicit in the submissions made on behalf of Mr Harwood, however, was this proposition. Because the CRP was almost complete, if a settlement were not achieved at mediation on 8 July, the matter would soon thereafter be listed for hearing in the Tribunal. It was also implicit in the submission that if the matter were transferred to the District Court of South Australia, there would be greater delay before a hearing date could be obtained than if the matter remained in the Tribunal.

57 I am not persuaded that these assumptions, which the Court was asked to make, have been made out. All that will occur is that following the conclusion of the CRP, if the matter has not settled, it will be listed before the Tribunal for directions. There is no indication and history would suggest otherwise, that this litigation will not be as hard fought in the Tribunal as that which has already taken place in South Australia. There may well be delays while interlocutory steps are taken to prepare the matter for hearing, even if the matter were to proceed in the Tribunal. Alternatively, if as was suggested, the matter is ready for hearing in the Tribunal and all that is required is the allocation of a hearing date by the Tribunal, the same ought be true if the matter were transferred to South Australia, i.e. all that would be required is the allocation of a hearing date.

58 In any event, the urgency of this matter is not so great that a hearing needs to take place within the next few weeks. While mesothelioma of its nature is an unpredictable condition and persons suffering from it can rapidly deteriorate, the evidence is that Mr Harwood has a life expectancy of approximately 14 months. If there were a rapid deterioration in Mr Harwood's condition, the evidence is that the District Court of South Australia would be just as able to conduct an urgent hearing at his bedside or in a court at Coffs Harbour as would the Tribunal.

59 Another assumption which was implicit in submissions by Mr Harwood was that any hearing in the Tribunal would be shorter than a hearing in the District Court of South Australia. The Court was invited to make that assumption by reference to the length of hearings which had taken place in South Australia in relation to Whyalla Shipyard matters when compared with the average length of hearings in the Tribunal which frequently conclude within a matter of days.

60 I am not prepared to make that assumption. It involves a proposition analogous to comparing apples with oranges. The four cases which have run in South Australia between plaintiffs and BHPB relating to the Whyalla Shipyards have all been hard fought. There was no indication that Mr Harwood's claim, whether it is run in the Tribunal or in the South Australian District Court, will be run any differently. On the contrary, Mr Hay in his affidavit indicated the points at issue in the matter and they are extensive. Their resolution will involve complex issues of law and fact, including expert evidence. For the reasons set out by BHPB, before the Tribunal, Mr Harwood cannot obtain assistance from s25(3) and there will be a significant argument as to whether, and to what extent, he can gain any benefit from the provisions of the DDA.

61 One thing is clear, any proceedings in the Tribunal will be lengthened by legal argument as to how the provisions of ss 8 and 9 DDA are to be characterised, i.e. whether they are procedural or substantive matters of law. That is an argument which will not take place if the matter proceeds in the District Court of South Australia. No cases involving BHPB and asbestos exposure at Whyalla have been run to conclusion in the Tribunal where liability has been in issue. Accordingly, it is not correct to say that if such a case were run in the Tribunal it would take any less time than a similar case run in the District Court of South Australia.

62 Mr Harwood in submissions relied upon the experience of the Judges of the Tribunal in dealing with matters involving asbestos exposure over 20 years. The experience of the particular Court or Tribunal is clearly a relevant matter and in Spiliada Maritime Corporation v Cansulex Limited (1987) AC 460 it was decisive. It is difficult to see, however, how that consideration significantly assists Mr Harwood in resisting BHPB's application.

63 Each case depends upon its own facts. While the Judges of the Tribunal undoubtedly have considerable expertise in dealing with asbestos exposure matters, it would be invidious to suggest that a Judge of the South Australian District Court would be unable to properly assess the evidence of asbestos exposure before him or her in Mr Harwood's claim. If anything, as BHPB said in its oral submissions, the District Court of South Australia may well have more expertise in dealing with asbestos exposure at Whyalla since four cases involving that issue have been heard by it and none by the Tribunal. It follows that I do not regard the undoubted experience of the Judges of the Tribunal as being a matter of significance in this application.

64 Mr Harwood's ability to attend the proceedings is an important consideration. Whilst it will be inconvenient for him to attend a hearing in Sydney, it would undoubtedly be more inconvenient for him to attend a hearing in Adelaide. Important as it is, I do not regard that consideration as decisive. To the extent that it is necessary for Mr Harwood to give instructions, these can be given on the basis of information communicated to him by others who have been able to attend the hearing. With the consent of the presiding Judge, it might even be possible for part or all of the proceedings to be video recorded and played to Mr Harwood. Preferable though it might be for a party to be able to attend a hearing, it often occurs that the extent of a plaintiff's injuries are such that this is not possible. A fair trial can and does proceed nonetheless. This Court is, after all, considering the concept of the "interests of justice".

65 As in Schultz's case, an important consideration is the applicable appeal provisions. The appeal provisions from a decision of the District Court of South Australia involve a rehearing as to matters of fact and law and as a result, are wider than those available in the Tribunal, which are restricted to the admission of evidence and point of law.

66 Because I am not persuaded that a hearing in the District Court of South Australia would be necessarily longer than a hearing before the Tribunal, I am not satisfied that the costs likely to be incurred by a hearing in South Australia would be substantially greater than those incurred by a hearing before the Tribunal in New South Wales. As Callinan J said in Schultz , a cost comparison is of little weight unless it is established that the costs of one jurisdiction would be grossly disproportionate to the costs in another.

67 Mr Harwood submitted, somewhat faintly, that a cross-vesting order should not be made because the Court in South Australia, which would hear the matter, is the District Court. He submitted that s5(2)(b)(iii) refers to the relevant proceeding being "determined by the Supreme Court of another State ...". He submitted that since the Supreme Court of South Australia would not be hearing the matter, the Cross-Vesting Act can have no application.

68 I do not agree. I would give s5(2) a broad interpretation. In my opinion, the word "determined" as used in subsection 5(2)(b)(iii) of the Cross-Vesting Act encompasses a situation where the Supreme Court allocates the hearing of the matter to another Court or Tribunal. It does not require that the Supreme Court of South Australia hear the case on its merits and deliver a judgment in respect of it.

69 It follows from the above that I have concluded that this matter should be transferred to the Supreme Court of South Australia. I have concluded that this is a South Australian case. The tort occurred there, the law which would apply would be South Australian law. There would be no debate about difficult questions of foreign law. Both the District Court of South Australia and the Tribunal have procedures which allow the proceedings to be prosecuted with a minimum of delay. The existence of full appeal rights in South Australia favours both parties. The DDA has scope to restrict the re-litigation of matters already decided, the DDTA does not. This may well be a matter of considerable significance when the judgment in Parker is handed down on 18 July 2011.

70 The residence of Mr Harwood in New South Wales is important but not decisive. Whichever court heard the matter, it would be necessary for that court to travel to Coffs Harbour. The additional evidence likely to be called as to damages from family members or treating doctors, if called at all, is likely to be short and narrow in compass, given that Mr Harwood is suffering from mesothelioma. There is no proper basis for the Court to conclude that a hearing in the South Australian District Court would be any longer or more expensive than a hearing before the Tribunal. The determinants of the length of the hearing are the issues agitated and the way in which the parties seek to present their cases. These will be the same wherever the case is brought. While I accept that the South Australian District Court does not yet have the proven track record of the Tribunal, I am satisfied that the Judges of that Court would be able to provide the same efficiency and expedition when hearing this matter. It would be quite unfair and speculative to suggest otherwise.

71 The order which I make is as follows:

(1) I order pursuant to s8 of the Jurisdiction of Courts (Cross-Vesting) Act that proceedings No 74/2011 pending in the Dust Diseases Tribunal of New South Wales between BHP Billiton Limited (the plaintiff) as the defendant and Raymond Harwood (the defendant) as the plaintiff ("the DDT proceedings") be removed into the Common Law Division of this Court.

(2) I order that pursuant to s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act that the DDT proceedings when removed into this Court be transferred to the Supreme Court of South Australia.

(3) I reserve the question of costs.

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Decision last updated: 08 July 2011