Supreme Court New South Wales

• Medium Neutral Citation: Amaca Pty Limited v Cecilia Morrison [2013] NSWSC 1706
• Hearing dates: 18 November 2013
• Decision date: 19 November 2013
• Before: Harrison J

Decision

1. An order that proceedings no 379 of 2013 in the Dust Diseases Tribunal of NSW be removed into the Common Law Division of the Supreme Court of NSW pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 and, or alternatively, pursuant to Part 9 of the Civil Procedure Act 2005 and Part 44, Division 2 of the Uniform Civil Procedure Rules 2005.

2. An order that the proceedings referred to in paragraph 1 above be transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

• Catchwords: CROSS VESTING - Jurisdiction of Courts (Cross-Vesting) Act 1987 - s 5(2)(b)(iii) and s 8(1)(a) - application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to the Supreme Court of Queensland - whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state - whether Queensland is the forum with the most real and substantial connection to the proceedings - whether transfer would cause delay - whether transfer will create additional costs - whether the Dust Diseases Tribunal provides experiential and procedural advantages
• Legislation Cited: Dust and Diseases Tribunal Regulation 2007; Jurisdiction of Courts (Cross-Vesting) Act 1987
• Cases Cited: B I (Contracting) Pty Limited v Haylock [2005] NSWSC 592; Bale v Seltsam Pty Ltd [1996] HCAtrans 470; British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83; James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357; Joyce Barbara Bale v Seltsam Pty Ltd [1996] QCA 288
• Category: Principal judgment
• Parties: Amaca Pty Limited (Plaintiff); Cecilia Maria Morrison as litigation guardian for Lorna Violet Stevens (First Defendant); Seltsam Pty Limited (Second Defendant)
• Representation: Counsel: J Sheller (Plaintiff); D J Russell SC with A Giurtalis (First Defendant); Solicitors: DLA Piper (Plaintiff); Maurice Blackburn (First Defendant); Colin Biggers & Paisley (Second Defendant)
• File Number(s): 2013/345902
• Publication restriction: Nil

Judgment

1 HIS HONOUR: By its summons filed on 15 November 2013, Amaca seeks the following orders:

1. An order that proceedings no 379 of 2013 in the Dust Diseases Tribunal of NSW be removed into the Common Law Division of the Supreme Court of NSW pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 and, or alternatively, pursuant to Part 9 of the Civil Procedure Act 2005 and Part 44, Division 2 of the Uniform Civil Procedure Rules 2005.

2. An order that the proceedings referred to in paragraph 1 above be transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

2 The orders are opposed by Ms Morrison but are consented to by Seltsam. They are sought in the following circumstances.

Background

3 Violet Stevens sues by her litigation guardian Cecilia Morrison. Her proceedings were commenced by statement of claim filed in the Dust Diseases Tribunal of New South Wales on 1 November 2013. Mrs Stevens alleges that during the period between 1966 and August 1973 she operated RM & LV Fleming trading as Fleming's Carrying Service based in Monto, Queensland. During this period Fleming's Carrying Service performed local deliveries of mail and parcels as well as general carrying of hardware and building supplies around the Monto and Bundaberg areas of Queensland.

4 During this same period Mrs Stevens' husband Roger Fleming regularly loaded and transported building products containing asbestos, manufactured or supplied by the defendants, on behalf of Ryland & Co, Hardware Merchants, and Pinkerton & Mearns Hardware, Plumbing and Building Supplies respectively. Roger Fleming also delivered these products to their customers. Between December 1966 and about early 1968 Roger Fleming would be assisted in this work by their son Gregory Fleming. He joined the partnership in 1973. This work continued until October 1974 when Roger Fleming died. Thereafter Mrs Stevens and Gregory Fleming continued to operate the business together. Mrs Stevens laundered her husband and son's work clothing over the entire period that they worked transporting asbestos products in this way.

5 As a consequence of their handling these products, Roger Fleming and Gregory Fleming were exposed to asbestos dust and fibres and to particles of asbestos liberated from the building materials that contained asbestos. Mrs Stevens' exposure to their work clothing also exposed her to asbestos, which she inhaled or ingested. She alleges that the pleural mesothelioma from which she now suffers was contracted in this way.

6 Mrs Stevens is now 84 years old and is in frail health. Although there is no expert evidence before me dealing with her current condition or her life expectancy, all parties accept that there is a need for her claim to be dealt with as a matter of urgency. To that end Mrs Stevens' proceedings in the Tribunal were removed from the Claims Resolution Process pursuant to Part 21(1)(a) of the Dust Diseases Tribunal Regulation 2007. Then, on 15 November 2012, Hidden J made an order expediting the proceedings in this Court. Accordingly, when the matter came before me yesterday, I made orders 1 and 2 as asked but indicated that I would publish my reasons as soon as possible thereafter. These are my reasons for making those orders.

Consideration

7 Amaca's application under s 8(1)(a) of the Jurisdiction of Courts (Cross-Vesting) Act depends upon whether it is "in the interests of justice" within the meaning of s 5(2)(b)(iii) of the Act that the Tribunal proceedings be determined in the Supreme Court of Queensland. I dealt with a not dissimilar application in British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83. I referred there to the authorities at [23], [25]-[27] as follows:

"[23] BATAS's application under s 8(1)(a) of the Act depends on whether it is 'in the interests of justice' within the meaning of s 5(2)(b)(iii) of the Act that the DDT proceedings be determined in the Supreme Court of Victoria. If, and only if, it is in the 'interests of justice' for those proceedings to be transferred to Victoria will the Court make the orders sought under s 8(1)(b)(ii) transferring the proceedings from the Dust Diseases Tribunal into this Court: see Volkswagen Financial Services Australia Ltd v City Prestige Service Centre Pty Limited [2007] NSWSC 203 at [10]; see also Amaca Pty Limited v Mundy [2008] NSWSC 604.

...

[25] The determination of whether it is in the 'interests of justice' under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state depends on what is the 'more appropriate' forum for those proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161] - [169] per Kirby J. Another way of putting the same inquiry is to ask which is the 'natural forum' for the proceedings: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44], Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69].

[26] In Spilliada Maritime Corp v Cansulex Limited [1987] 1 AC 460 at 478 Lord Goff identified some of the 'connecting factors' which were of importance in the application of the principle of forum non conveniens in England:

'So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business.'

[27] Those factors have been considered relevant in the assessment of the "interests of justice" in the application of s 5(2)(b)(iii) of the Act: see Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730E, Barry (supra) at [95] per Mason P; Schultz (supra) at [18] per Gleeson CJ, McHugh and Heydon JJ and at [163] per Kirby J. The location of the place of the wrong and the governing law of the wrong are also matters of prime importance in the exercise of the power of transfer under s 5(2)(b)(iii): see Barry (supra) at [7] per Spigelman CJ (a passage which was quoted with approval by Kirby J in Schultz (supra) at [165]). A further matter of importance in considering the "interests of justice" is whether the assessment of any questions arising in the litigation is dependent on a degree of local knowledge: see Bankinvest (supra) at 729D per Rogers AJA. There is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz (supra) at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J."

8 Amaca submits that it is "in the interest of justice" within the meaning of s 5(2)(b)(iii) that the Tribunal proceedings be determined in the Supreme Court of Queensland because Queensland is the Australian jurisdiction which has the most real and substantial connection to Mrs Stevens and her claims. This is said to be for the following reasons.

9 With two exceptions, every physical fact associated with Mrs Stevens' claim is connected with Queensland. For example, Mrs Stevens resides in Bundaberg. Her medical practitioners and treating specialists all reside and practise there. The events giving rise to the pleaded case all arose in Queensland. The physical activities surrounding Roger Fleming's transport business all took place around Monto, a town that is approximately 500km north west of Brisbane. The customers that were supplied by Roger Fleming at both the wholesale and retail levels were all situated in that area. As far as it is known, all witnesses who may be called by Mrs Stevens, whether lay or expert, are, or are likely to be, exclusively located in Queensland.

10 At a legal level, the tortious conduct, and the associated claim, both arise out of events that occurred exclusively in Queensland. The damage alleged by Mrs Stevens was all sustained or suffered there. Amaca contended that Queensland was overwhelmingly the natural forum. The two exceptions to that proposition are that Amaca and Seltsam are each legally resident in New South Wales.

11 Understandably in these circumstances, Mrs Stevens mounted her opposition to the present application upon the basis that the Tribunal was to be preferred by reason of the experiential and procedural advantages that this type of litigation is likely to receive there, and that by implication cannot be obtained, or cannot completely be obtained, from the Queensland Supreme Court. This general submission had a number of themes.

12 First, there was likely to be some delay in dealing with the matter if it were removed to Queensland, which would not be occasioned if the proceedings remained in the Tribunal. The evidence does not, however, support that contention. Without descending into the detail, there appears to be no impediment to an examiner in Queensland hearing Mrs Stevens' evidence next Thursday. That is the same day that Kearns J in the Tribunal has indicated to the parties that he would be able to take her evidence in Bundaberg if required. The evidence suggests that the Queensland Supreme Court would be in a position to commence to hear the matter by no later than next week.

13 To a similar effect, the evidence also indicates that Ross Stenson, a barrister-at-law, is available to act as an examiner to take Mrs Stevens' evidence this week. Indeed, Mr Stenson is available to attend Mrs Stevens' home in Bundaberg on Thursday. Mr Stenson is very experienced in matters of this type and has acted as an examiner previously. He regularly conducts mediations in asbestos related litigation. It is proposed that the evidence to be taken by him will be audio and video recorded, and that a transcript will also be produced. There are no significant delays, if any at all, associated with the appointment of an examiner in accordance with the Queensland practice that are not also associated with a judge of the Tribunal hearing Mrs Stevens' evidence.

14 Secondly, Mrs Stevens contends that the exercise proposed by Amaca will create additional and, by implication, unrecoverable expense. I have not been provided with a breakdown or comparison of the costs involved. Clearly all of the lawyers in this State will have to travel to Queensland if they are to remain in the case. Alternatively, lawyers may be appointed from that State to conduct the litigation. Legal costs are certain to be incurred by all parties wherever they come from. Travelling and accommodation costs are the only added cost if lawyers from this State are retained. On the other hand, the costs of transporting an as yet unexplained number of lay and expert witnesses from Queensland to New South Wales would appear more than likely to offset such costs. I have not been given any information about audiovisual assistance or the savings, if any, that such technology might generate, in the event that evidence were heard remotely in either case.

15 One cost that is associated with removal to Queensland is the $5,500 daily fee to be charged by the examiner together with the costs of audiovisual recording and transcribing of Mrs Stevens' evidence. However, Amaca has indicated that it and Seltsam will indemnify Mrs Stevens with respect to such costs so that it is no longer a consideration of any relevance.

16 Thirdly, Mrs Stevens emphasises that if her evidence is taken by an examiner, the judge of the Queensland Supreme Court who hears the case will not have had the benefit of personally seeing or hearing her, and will in those circumstances be at a disadvantage in assessing her reliability, both in terms of her memory and her truthfulness. However, this is not an issue that only favours one side or the other. It is correspondingly not something that causes disadvantage to only one side. Whether there is in truth any disadvantage at all is questionable, particularly having regard to the proposition that the trouble and expense entailed in recording her evidence rather suggests that the procedure carries some identifiable or perceived benefit. Because this issue is so patently two-edged, it operates as a neutral consideration in my view. As a matter of weight, and perhaps forensic common sense, it would also surprise me if the assessment of the credit of an 84 year old widow, dying of mesothelioma, and giving evidence from her hospital bed, would be likely in reality to achieve the significance that this submission hypothetically attributes to it.

17 Fourthly, Mrs Stevens suggests that the Tribunal is more experienced in this type of litigation than any other court or tribunal in the country and that it would be inimical to the interests of justice generally to disregard the benefits of retaining the assistance of a body with such a considerable knowledge and background in asbestos litigation. The authorities in this area of discourse suggest, not unreasonably, that the importance of this notion is liable to be overstated. This is referred to below. However, claims of this nature were considered and dealt with in Joyce Barbara Bale v Seltsam Pty Ltd [1996] QCA 288 and Bale v Seltsam Pty Ltd [1996] HCAtrans 470. This form of litigation is tragically widespread in Australia and is obviously far from unknown in Queensland.

18 Fifthly, and again in a related sense, Mrs Stevens complains that the regulatory regime and streamlined procedures utilised in the Tribunal may not be available in the Queensland Supreme Court, so that she may be liable to suffer procedural and potentially substantive prejudice in the presentation of her case. Rules permitting plaintiffs in the Tribunal to rely upon evidence from earlier proceedings are among the important provisions to which she draws attention. However, I am informed by Amaca and Seltsam that they will not oppose these provisions being utilised by Mrs Stevens or will not object to any attempt by her to rely on evidence of this type as if the rules applied. There would not appear to be any disadvantages of the sort anticipated by Mrs Stevens in such circumstances.

19 It also seems to me that, in the particular circumstances of this case, the authorities significantly favour the application. Amaca contends that Queensland is the natural forum in which to hear this case. I have earlier referred to the decision of the High Court in Schultz. In that case Kirby J referred at [163]-[165] to the remarks of Spigelman CJ in James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [7] as follows:

"[163] In Spiliada Lord Goff endorsed a formula earlier used by Lord Keith of Kinkel in the resolution of the problems arising in The Abidin Daver. This was to the effect that 'more appropriate' forum was the 'natural forum' for the trial of the action. This was described as being 'that with which the action had the most real and substantial connection'. In judging the action by reference to such a criterion, Lord Goff said that courts would first look to the 'connecting factors' that point in the direction of the local or some other forum:

'[T]hese will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business.'

[164] Once it is clear that some 'more appropriate' forum exists, 'the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the [chosen] forum'. So too for the defendant. An exception is allowed where it is clear that 'substantial justice' cannot be done to the plaintiff in what is otherwise the 'appropriate' forum. However, whilst this may be a consideration that it is appropriate to take into account in inconvenient forum applications which seek orders that the proceedings be continued in another country, they scarcely apply to courts within the Australian Commonwealth. On the contrary, the suggestion that the first respondent could not obtain 'substantial justice' in the relevant court of South Australia (the Supreme Court of that State) is not only contrary to common experience. It is inconsistent with the hypothesis of the Constitution.

[165] I therefore agree with the remarks of Spigelman CJ in James Hardie & Coy Pty Ltd v Barry:

'To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross-vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of 'appropriate court', although other factors may need to be assessed in the process of determining where the interests of justice lie'."

20 It is also important to note the concise comments of Gummow J at [99] in that case as follows:

"[99]... The views expressed by the primary judge respecting the comparative speed and efficiency of the Tribunal and the Supreme Court of South Australia favoured the former, but did not proceed from the formation of any firm conclusion on the evidence. Nor did the views expressed as to comparative expense. It is true that the Tribunal is a specialised institution, but, notoriously, educated views differ as to the quality of results obtained in courts of general and of specialised jurisdiction..."

21 In B I (Contracting) Pty Limited v Haylock [2005] NSWSC 592, Bell J made the following observations at [45]:

"[45] Prominent to the determination of this case is the circumstance that Ms Haylock is terminally ill with a prognosis at best of twelve months and at worst of less than six. In the course of submissions her counsel contended that in mesothelioma cases the interests of justice would necessarily tend to be against orders for transfer given the aggressive nature of the condition. I am not persuaded that is so. In this case, notwithstanding the grim prognosis, it does not seem to me that Ms Haylock's situation is such that the South Australian Court will not be able to deal with her claim expeditiously and deliver judgment within her lifetime."

22 The only factor that suggests itself, as a theoretical proposition, favouring Mrs Stevens upon an assessment of the interests of justice, and the discrete question of "substantial justice", is the potential for delay, having regard to her medical condition and her life expectancy. Neither the evidence before me, nor quite properly in the light of that evidence, the submissions made on her behalf, suggests that there is a real prospect that Mrs Stevens would not survive the removal of the proceedings to Queensland if that were to occur. I am not satisfied that "substantial justice" cannot be done to Mrs Stevens in Queensland. There can be little doubt that it is otherwise the "appropriate" forum.

Conclusions and orders

23 The orders that I made on 18 November 2013 were as follows:

1. Order that proceedings no 379 of 2013 in the Dust Diseases Tribunal of NSW be removed into the Common Law Division of the Supreme Court of NSW pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 and, or alternatively, pursuant to Part 9 of the Civil Procedure Act 2005 and Part 44, Division 2 of the Uniform Civil Procedure Rules 2005.

2. Order that the proceedings referred to in paragraph 1 above be transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

24 To the extent that it is, or may become, necessary for this Court to deal with any further aspect of the proceedings, particularly having regard to the need to ensure that the matter is dealt with as expeditiously as possible both in this Court and in the Queensland Supreme Court, I will grant general liberty to the parties to approach my Associate in anticipation of an application to me in chambers without notice if so advised.

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Decision last updated: 20 November 2013