Amaca Pty Limited v Brisbane City Council

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J

11059/03 AMACA PTY LIMITED (FORMERLY KNOWN AS JAMES HARDIE & COY PTY LIMITED) v BRISBANE CITY COUNCIL

JUDGMENT 1 HIS HONOUR: This is a summons in which the plaintiff, Amaca Pty Limited (formerly known as James Hardie & Coy Pty Limited) ("Amaca") claims orders under the New South Wales Jurisdiction of Courts (Cross-Vesting) Act for the transfer of certain proceedings in which it is the defendant from the District Court of New South Wales to this Court and from this Court to the Supreme Court of Queensland. 2 The plaintiff in the District Court, Brisbane City Council ("the Council"), was between 1962 and 2001 the employer of Mr Peter John Nolan. Mr Nolan was at all times a "worker" within the meaning of that term as used in relevant Workers Compensation and industrial legislation. He was a surveyor and ultimately a surveyor-planner. During the course of his employment with the Council, and particularly between 1962 and 1969, Mr Nolan regularly handled and cut asbestos cement fibro sheeting. The Council asserts that that sheeting was manufactured by Amaca, some of it in New South Wales. 3 In December 2001 Mr Nolan was diagnosed with malignant mesothelioma and became entitled to recover compensation from the Council. It paid him the sum of $300,000 to compensate him for his injury. 4 The Council's case is that Amaca was negligent in a number of respects in its supply of the sheeting used by Mr Nolan. It sues to recover from Amaca the compensation money paid. By common consent it has the right to bring these proceedings, but in order to succeed it will have to prove what Mr Nolan would have had to prove if he had been the plaintiff. Amaca has filed a defence, putting in issue matters the Council must prove, and a cross-claim seeking contribution from the Council towards any damages it is held liable to pay. The cross-claim asserts that the Council was in breach of its duty to Mr Nolan as his employer in failing to provide him with a safe system of work and in its breach of certain statutory obligations. 5 The summons is brought under ss8 and 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). Relevantly, s8 provides as follows- 8. Orders by Supreme Court (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 subsection 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. 5. Transfer of Proceedings … (2) Where: ( a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court (in this subsection referred to as the first court ), and (b) it appears to the first court that: … (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. 6 In deciding, for the purposes of s 5(2), where the interests of justice lie instruction is found in the judgments of the Court of Appeal in James Hardie & Coy Pty Limited v Barry and Anor (2000) 50 NSWLR 357. Applications like this one, as where a defendant perceives that a matter, duly instituted, is in a forum other than the one it would prefer, are to be dealt with by determining which forum is more appropriate. See the judgments of Spigelman CJ at [4], [5] and of Mason P at [87]. 7 As Sully J observed in Broken Hill Proprietary Co Limited v Zunic [2001] NSWSC 561 at [12], the interests of justice are appropriately approached as a very broadly based and flexible concept. I note the observations of Street CJ in Bankinvest AG v Seabrook (1998) 14 NSWLR 711 at 714- It can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. Consideration of textured principle and deep learning - in particular principles of international law such as forum non conveniens - have no place in a cross-vesting adjudication. 8 In Dawson v Baker (1994) 120 ACTR 11 Higgins J identified certain matters likely to be significant in determining whether it is in the interests of justice to order a transfer of proceedings under cross-vesting legislation. The list may not be exhaustive, of course, but I shall adopt it because it is useful, as a number of courts have said.

Application of Substantive Law 9 The Council's action is in tort: it is unnecessary to set out the various ways in which negligence or breach of duty is pleaded. There is a single law of tort for the whole of Australia. That law can be ascertained and applied equally easily by the District Court of New South Wales and the Supreme Court of Queensland. 10 It was submitted by Amaca that the cross claim depended in part on an asserted breach by the Council of rules and regulations under the Factories and Shops Act, Queensland, particularly a rule called the Asbestos Rule, which required employers to ventilate workplaces, provide protective equipment, maintain clean plant and the like and which governed storage and distribution of materials. It was submitted that the ascertainment of the applicable standard of care would raise a peculiar issue of Queensland law and that prevailing standards of safety were the standards of Queensland, with which the Supreme Court of Queensland would be familiar and the District Court of New South Wales unfamiliar. I think that the differences are more apparent than real. I can accept that the Supreme Court of Queensland would be well used to dealing with such questions, but the District Court of New South Wales is well used to applying standards set by statutory rules governing the conduct of works and the maintenance of workplaces. 11 In my opinion the need to apply the substantive law does not favour either of the tribunals on offer. Forensic Advantage or Detriment Conferred by Procedural Law 12 This is a case in which it may become necessary to call eleven lay witnesses and a handful of expert witnesses. It may last four or five days. There was evidence about the availability of case management and interlocutory forensic procedures in the Supreme Court of Queensland and the District Court of New South Wales. Case management is available in the District Court, in fact standard directions were automatically made upon the filing by Amaca of its defence. Case management is also available in Queensland if required. Interrogatories are available in both courts. 13 However, neither side demonstrated that the procedures available in one court were superior enough to those available in the other to have any significant weight in the determination of the question whether to move the case. 14 Of course, no pleadings have been filed in the Supreme Court of Queensland, but if an order is made they will be able to be filed within a short time. Nothing has been done in the District Court other than the filing of the pleadings I have mentioned because of the existence of this summons. None of the directions made upon the filing of the defence has been complied with. 15 There was evidence about how long it might take to get a hearing date in either court but I thought it all somewhat assumptive and unimpressive. There is no reason to believe that the parties will get a quicker hearing in either place. 16 It was submitted by the Council that the District Court of New South Wales had three incidental advantages. The first was that under the New South Wales Legal Profession Act a solicitor who prepares pleadings is obliged to certify that there are reasonable grounds for believing that the pleading has reasonable prospects of success based on provable facts and on a reasonably arguable view of the law. There is no such requirement in Queensland. 17 I would not infer from the absence of any like requirement in Queensland that solicitors in that State should be taken to go about their work irresponsibly. 18 Secondly, it was asserted that New South Wales had the benefit of the Evidence Act 1995, which brought with it certain advantages in proving hearsay evidence and the like, whereas Queensland did not. However, no attempt was made to analyse the evidence likely to be offered at the trial and I am unable to conclude that New South Wales would offer any relevant advantage. 19 Thirdly, it was submitted that recoverable costs were more generous in New South Wales. Perhaps they are, but I would take sums recoverable for costs as reflecting the cost of litigating cases in the places where those costs are incurred. 20 A consideration of the likely applicable procedural law does not suggest to me that there would be any demonstrable advantage or detriment in maintaining this action in either court.

The Choice Made by the Plaintiff of a Forum and the Reasons for that Choice 21 It never did become clear why the Council had decided to commence these proceedings in the District Court of New South Wales. In written submissions all that was said was- Brisbane City Council has a lawful and bona fide entitlement to have this matter heard in the District Court of New South Wales, and there is a genuine and proper connection (eg. place of manufacture, supply, control) with New South Wales. 22 It was implied in submissions that New South Wales courts had a particular familiarity with mesothelioma cases. That may well be so, but I apprehend that the Court that ordinarily deals with such cases is the Dust Diseases Tribunal. It was also submitted that the Supreme Court of Queensland had no experience dealing with mesothelioma cases. That, however, is not to say that the District Court of New South Wales has any more experience, and I doubt whether it has. 23 Council referred to the judgments of Gleeson CJ in Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 at 417- If a claim is made in respect of a tort committed in another State, or another country, it is no more a matter of surprise to find such a claim being pursued in the Tribunal than it would have been to find such a claim being pursued in the Supreme Court. If, for example, a defendant were an individual who resided in this State, who could readily be served with process here, and whose assets were all here, then New South Wales may well be the very forum in which one would expect proceedings to be commenced; especially if the plaintiff were also a resident of New South Wales. Presence of the defendant within the jurisdiction is the traditional basis for the exercise of jurisdiction. The common law view was that the primary, or proper, jurisdiction of a court is over persons who are served with process within the jurisdiction: John Russell and Co, Ltd v Cayzer, Irvine and Co, Ltd [1916] 2 AC 298 at 302. The capacity to compel the defendant to submit to the decree of the court was what mattered. The principles relating to forum non conveniens must now be taken into account, but in dealing with the first issue in the appeal it is important to bear in mind that the jurisdiction of common law courts has not, as a matter of history, been confined, or even primarily related, to causes of action arising within the jurisdiction. 24 As counsel observed, Amaca is present in New South Wales because it is registered in that State. So must be the fund that it administers. 25 Accordingly, weight must be given to the regular commencement of the proceedings, in the circumstances of this case, in New South Wales.

Substantive Connection with the Forum 26 It was put on the behalf of the Council that Amaca is in New South Wales and that its relevant documents also are in New South Wales, that the Litigation Management Group, the entity responsible for conducting the asbestos disease compensation litigation on behalf of Amaca, has its offices in Sydney and that mesothelioma claims have been routinely defended by Amaca in Sydney. It is asserted that asbestos cement products were manufactured in New South Wales and that the use of inadequate and misleading warnings and directions about the use of asbestos emanated from its Sydney head office. 27 Undoubtedly, there is a substantial connection with New South Wales. 28 For Amaca it was submitted that, at least from an evidentiary point of view, everything about this case happened in Queensland. Mr Nolan lived and worked in Queensland for the whole of his employment with the Council. All the work he did that gave rise to his injury was done in Queensland. The other lay witnesses whom Amaca wishes to call to give evidence lived and worked in Queensland and would give evidence only of events that happened in Queensland. The treatment of Mr Nolan took place in Queensland. The Council resided in Queensland and compensated Mr Nolan according to its obligations under Queensland law. It became subrogated to his rights against Amaca by reason of a Queensland law. This is to all intents and purposes a Queensland case. 29 It seems to me that the evidence demonstrates a more substantive connection with Queensland.

Balance of Convenience to Parties and Witnesses 30 Other than any expert witness whom it is desired to qualify in the future, all the expert witnesses carry on their practices in Queensland. They are Dr Brown, a pathologist, Dr McKeon, a thoracic physician, Dr McNally, a general practitioner, Dr Matar, a thoracic physician and Ms Stephenson, an occupational therapist. All lay witnesses, including Mr Nolan and his wife, reside in Queensland. The two sides have canvassed them about their attitude to travelling to Sydney to give evidence and the impression I have is that most of them would be prepared to travel to Sydney. I have no doubt that all would prefer to give evidence, if they had to, in Brisbane. 31 The continuation of the case in the District Court of New South Wales would produce a good deal of unnecessary cost and inconvenience because of the need to uproot witnesses from their practices, jobs and private lives, bring them to Sydney, accommodate them and take them home again. The additional costs of transporting medical witnesses would be particularly significant, I think. 32 It was suggested in correspondence between solicitors at about the time this summons was filed that arrangements might be made for witnesses to give evidence by telephone, but I consider that an impractical approach. 33 On the other hand, there would be no disadvantage to witnesses if the proceedings were moved to Queensland. As far as I can ascertain, no witness resident outside Queensland is likely to be called. The solicitors on both sides have offices in Queensland. The Council resides in Queensland. 34 The balance of convenience to parties and witnesses favours a hearing in Queensland.

Convenience to the Court System 35 It was submitted that having witnesses travelling from interstate would produce inconveniences for the District Court, but if it did it would not be a matter of great moment.

Other Matters 36 It was submitted on behalf of the Council that relief ought to be denied because of the way that Amaca conducted the District Court proceedings and then produced delay by bringing this summons. The records show that the statement of claim was filed on 23 July 2002 but not served until 27 February 2003. On 3 April 2003 the solicitor for Amaca wrote a letter to the solicitor for the Council informing him of the intention to move this Court for cross-vesting orders. The same solicitor filed the defence and cross-claim on 1 May 2003. The summons was filed on 15 June 2003. 37 As I have said, the filing of the defence triggered the issue by the District Court of directions for the conduct of the proceedings. It was submitted on behalf of the Council that by filing its defence and cross-claim Amaca consented to the jurisdiction of the District Court and produced unnecessary expense, followed by the delay occasioned by the filing of this summons. 38 I do not think that there is any substance in these submissions. The dates I have cited show that there was no delay. It was reasonable, I think, for Amaca to complete the pleadings before coming to this Court, so that this Court could understand the full nature of the proceedings it was being asked to transfer. No expense was occasioned to either side by the automatic issue of directions by the District Court.

Conclusion 39 Weighing all these matters up, I have reached the conclusion that the interests of justice favour the transfer of these proceedings to the Supreme Court of Queensland for hearing. I therefore make the following orders- 1. An order pursuant to Section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that proceedings numbered 6104 of 2002 pending in the District Court of New South Wales between Brisbane City Council (the defendant) as plaintiff and Amaca Pty Ltd (the plaintiff) as defendant be removed into the Common Law Division of this Court.

2. An order pursuant to Section 5(2)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that the District Court proceedings when removed into this Court be transferred to the Supreme Court of Queensland. 3. The defendant must pay the plaintiff's costs.

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