AMACA PTY. LIMITED v. HARRIS [2005] NSWSC 622

(d) The specialisation and expertise of the Dust Diseases Tribunal.

(e) Typical case management issues, including convenience and cost factors such as:-

(ii) the expense or costs of litigating in one forum or the other (including legal fees, travelling and accommodation expenses). 36 In James Hardie & Co. Pty. Limited v. Barry (2000) 50 NSWLR 357, Mason, P. observed that the general provisions contained in s.5(2)(b)(iii), do not use the language in categories (i) and (ii), in particular, the expression "more appropriate" but that matters falling solely in category (iii) are, like the other two categories, to be approached on the basis of determining which forum is "more appropriate" in the sense discussed in Spiliada Maritime Corporation v. Cansulex Limited (1987) AC 460, where, Lord Goff stated:- "The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie., in which the case may be tried more suitably for the interests of all the parties and the ends of justice." 37 Mason, P. in Barry (supra) also cited dicta of Wilcox, J. in Bourke v. State Bank of New South Wales (1988) 22 FCR 378 at 394 on the broad approach to the "interests of justice" where he said:- "… in my opinion, this phrase ought to be read widely. Under the rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in 'the interests of justice' to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation." 38 In Barry (supra), Spigelman, CJ. at 361 [7] also observed:- "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." 39 In Barry, Spigelman, CJ. at 362 again emphasised the importance of the place of the tort in determining the interests of justice:- "It is not necessary to determine on a final basis what is the place of the tort. For the relevant purpose of exercising the power under s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987, this Court should proceed on the basis that Queensland was the place of the tort. If the issue were to arise in the course of the litigation, the evidence could be quite different to that presented in this Court for purposes of the applications before the Court. When combined with the residence of Mr. Barry, the location of the tort strongly suggests that the appropriate court is the Supreme Court of Queensland." 40 The Chief Justice then turned to the countervailing circumstances identified by Mason, P. (p.363 [18]) including in particular the diminution in the delay of and the costs of the proceedings having regard to the fact that causation would not be an issue litigated, by reason of the concession made by the defendant that s.25B had application. 41 The significance of the place of the tort, it has observed, is considerably reduced when it is recognised that the common law of Australia will (by definition) be the same in Queensland as in New South Wales: Barry (supra, per Mason, P. at [101]; see also [108]). Mason, P. (at p.383) stated:- "The High Court had declared that the common law in New South Wales is at all times the same as Queensland, so nothing turns upon where the tort or torts occurred as regards the parties' substantive rights or the ability of either court system to determine that fairly." 42 In the present case, the application to transfer the proceedings would need to be supported by other factors than the fact that Queensland was the place of the tort in order to establish that the Supreme Court of that State was the more appropriate forum. In this respect:-

• Factors of cost and convenience do not play a significant role as the Tribunal Is intending to convene in Brisbane for the taking of evidence from witnesses in the proceedings.

• The plaintiff's submissions, undertakings and concessions regarding s.23 materials in large part have neutralised the evidentiary advantages of proceeding in the Tribunal under the Dust Diseases Tribunal Act.

• The plaintiff has undertaken to co-operate in achieving the earliest possible hearing in the Supreme Court of Queensland.

• Mr. Harris' residence is in Queensland. The plaintiff's registered office is in New South Wales. 43 In Barry, Spigelman, CJ. concurred with the orders proposed by Mason, P. which provided for the application under s.5 to be dismissed. The judgment of Mason, P. identifies the relevant countervailing factors that underpinned the refusal of an order transferring the proceedings.

Concessions and undertakings 44 A factor to be brought into account is the fact that, given that liability (subject to proof of exposure) is not in issue, Mr. Harris does not require to the same extent as in a case where liability is a full contest, the evidentiary and procedures, facilities and advantages available under the Dust Diseases Tribunal Act. Accordingly, that factor which was a prominent one in Barry (supra), does not apply here. 45 Mr. Sheller of counsel who appeared on behalf of the plaintiff, stated that he was instructed that in the event that the proceedings were transferred to the Supreme Court of Queensland, the plaintiff would not object to Mr. Harris relying upon s.25(3) material that has been identified in correspondence and as intended to be used as part of his case before the Tribunal. That concession was made following a submission that, causation having become virtually "a non-issue", the s.25(3) material, in any event, will have no role to play in the proceedings. In Bourke v. State Bank (supra), Wilcox, J. at 63 stated that undertakings given may be considered on a transfer application:- "There may be occasions upon which a party seeking a transfer will offer to the court to whom the application is made that some undertaking as to the future conduct of the case, for example, as to expeditious actions. It may be open to the court considering the transfer application to take that undertaking into account, as going to 'the interests of justice' …" 46 Wilcox, J. there noted that although the content of an undertaking may relate to the conduct of the proceedings in the transferee court, if the matter is transferred, any such undertaking is given to, and accepted by, the transferor court at a time when the matter is still in the latter court. By its very nature, Wilcox, J. observed, the undertaking operates "inter partes". 47 The effect of the undertaking offered by the plaintiff is, as I have earlier stated, to effectively neutralise, as a relevant factor, the evidentiary advantage that s.25(3) otherwise would provides.

B I Contracting Pty. Limited v. Haylock 48 Subsequent to the oral submissions of the parties, I was provided by the plaintiff's solicitors with a copy of the decision of this Court (Bell, J.) in BI Contracting Pty. Limited v. Haylock [2005] NSWSC 592. In that case, Bell, J. ordered that proceedings in the Dust Diseases Tribunal be removed into this Court and be transferred to the Supreme Court of South Australia. 49 The outcome in BI (Contracting) Pty. Limited v. Haylock (supra) can be appreciated when regard is paid to (a) the particular "connecting factors" in that case; (b) the evidence; (c) the nature of the discrete liability issues between Mrs. Haylock and BIC and St. George Limited; (d) the substantive versus procedural question surrounding the provisions of s.25B and (e) questions of interpretation that existed concerning a number of South Australian Acts and regulations relevant to certain liability issues arising on one of the defences in the case. Specifically, these matters may be identified and summarised as follows:-

(a) Connecting factors • The torts were each alleged to have occurred in South Australia. • Mrs. Haylock was a resident of South Australia. • BIC was incorporated in South Australia. It had only ever conducted business in South Australia. • St. George Bank was a corporation with its registered office in New South Wales, but was acting as successor to the liability of the Bank of South Australia.

(b) Specific liability issues • BIC, St. George (and Amaca) put in issue each of the elements of Mrs. Haylock's causes of action. • St. George denied Mrs. Haylock was exposed to and inhaled asbestos fibres in the course of her employment with the Bank of South Australia. • BIC challenged exposure on the basis that low levels of exposure could not satisfy the "Helsinki criteria" . This provided a basis for challenging the application of s.25B of the Dust Diseases Act. • Of the twenty s.25B causation findings upon which Mrs. Haylock proposed to rely, only one finding was not in issue. 50 Bell, J. in this latter respect observed that Gummow and Callinan, JJ. in BHP Billiton Limited v. Schultz (supra) (with whose reasons Hayne, J. agreed) considered the ambiguity with respect to the characterisation of various of the provisions of the Dust Diseases Tribunal Act as either substantive or procedural to be a factor favouring an order for transfer such that the lex fori and lex loci delicti coincided: per Gummow, J. at 366 [99] and Callinan, J. at 392 [242]. 51 St. George proposed to defend Mrs. Haylock's claim upon the basis that it did not succeed to the liabilities of the entity which employed her in 1963. That question turned on the interpretation of South Australian Acts and Regulations. 52 Finally, interlocutory steps (including the administration of interrogatories) were still outstanding and, unlike in the present application, no hearing date had been allocated. The Tribunal had indicated that it would not do so until all parties had given discovery.

Life expectancy - a relevant factor 53 There are two aspects of the disease of mesothelioma that are uncontroversial. The first is that from the point when a diagnosis is made, the life expectancy of a patient is regarded as severely curtailed - 12 months from the date of diagnosis being a commonly accepted life expectancy period (on that basis and the diagnosis in this case having been made on 29 March, Mr. Harris would have a residual life expectancy of about 9 months). The second is that the disease can be unpredictable and a sudden deterioration of a patient's health is possible and may bring about death in a shorter period than the estimated 12 months. Mr. Sharpe of counsel for Mr. Harris submitted in the context of transfer applications, that it is not possible to safely divide mesothelioma suffers into sub-categories of urgent and not so urgent cases. 54 In Bi Contracting (supra), it was noted that Mrs. Haylock's mesothelioma was of the epithelial type which Bell, J. observed at [13] carries a slightly better diagnosis. I note that unfortunately for Mr. Harris, Dr. Scott stated in his report of 3 June 2005, that one of his poor prognostic markers was his non-epithelial cell type of tumour. Dr. Scott added that specially the tumour had both epitheloid and sarcomatous histological features (p.2). Of course, one of the other distinguishing facts as to prognosis, is, as Dr. Scott has stated, that the plaintiff in these proceedings is male, a fact associated with relatively poor prognosis. 55 I accept that the inherent uncertainty with the disease, at least in a case such as the present, renders it difficult to proceed upon the basis that cases of malignant mesothelioma may, with a sufficient level of certainty and safety, be categorised as urgent and less urgent. In other words, it is difficult in many cases to say other than that a person diagnosed with the disease has a considerably shortened life expectancy based on the 12 months estimate without a great deal of further refinement or definition. 56 In the joint judgment of Gleeson, CJ., McHugh and Heydon, JJ. in Schultz (supra at [23]), their Honours stated:- "In particular, the plaintiff in Zunic was an elderly man with a short life expectancy." 57 This statement was apparently based on Sully, J.'s judgment in The Broken Hill Proprietary Co. Limited v. Zunic [2001] NSWSC 561which recorded that the available evidence did not establish an estimated life expectancy defined by qualified expert opinion in terms of some more or less closed period of days, weeks or months. Sully, J. stated, however:- "It is, in my opinion, clear nevertheless that Mr. Zunic is a very sick and frail old man whose life expectancy is likely to be shorter rather than longer." (at [15]) 58 In Barry (supra), Mason, P., there apparently being no more precise evidence on the point, recorded than that Mr. Barry was likely to die from lung cancer within six to 12 months (at [42]). Delay, of course, is a significant factor in a case where a plaintiff is expected to die within 12 months or some lesser period as is now the case with Mr. Harris. The issue of delay (expressed in terms of a significant diminution in delay which would arise from the availability of s.25B of the Dust Diseases Tribunal Act) was given particular weight in Barry by Spigelman, CJ. at [18]. 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 suffers, given their condition and the prospects that life 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." 61 On the timetable set for the proceedings in the Tribunal by O'Meally, J., there is, as certain as things can ever be in a mesothelioma case, the relatively sure prospect of a hearing, next week, on 6 July 2005. That date was objected to by the plaintiff's solicitor, Ms. Sheehan, who was then acting properly in her client's interests in relation to the present application. Had that date, for example, been obtained by Mr. Harris' solicitors, by some means, so to speak, "jumping the gun" in order to obtain an unfair advantage over the plaintiff, then the setting of the hearing date would not carry the significance which I believe it has in this case. The hearing date was set by O'Meally, J. during a programmed directions hearing as an incident of the Tribunal's efficient procedures. Delay in court processes, of course, is often inevitable and unavoidable. Delay is a matter that can, on occasions, attract community comment and sometimes criticism. In the language of Spiliada, "the ends of justice" can only be but well-served by proceedings that, subject to the requirements of due process, are heard and disposed of expeditiously. Especially is this so in the class of proceedings with which this application is concerned. 62 In discussing the broad approach to the "interests of justice" inquiry, Wilcox, J. in Bourke v. State Bank (supra at 394) stated, inter alia, that:- "It is not 'in the interests of justice' to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation." 63 I have had to consider the benefit and disadvantages of an expedited hearing available in the Tribunal from both parties' respective positions as well as to the possible disadvantage or burden to Mr. Harris from effectively cancelling the hearing of the proceedings next week, even if only for a short period, whilst the proceedings are transferred.

Striking the required balance 64 I propose setting out the required considerations which I regard as potentially or actually relevant in the present case and to make comment on each. I will then consider how the final balance of the interests of justice should be struck, having regard to the principles to be derived from the authorities to which I have referred.

I have earlier referred to the work performed and Mr. Harris' exposure to asbestos dust and fibre from working with various products manufactured by Amaca then known as James Hardie & Co. Pty. Limited. On the basis of James Hardie & Co. Pty. Limited v. Hall, as administrator ad litem of the Estate of Putt (deceased) (1988) BC 980 2005 (NSWCA), the place of the alleged tort in the present proceedings was the State of Queensland In accordance with the observations of Callinan, J. in Schultz (at [259]) and Spigelman, CJ. in Barry (at [7]), this is a significant matter in determining which court, in the interests of justice, is the appropriate forum. That matter established, it is then necessary to assess the remaining factors in the process of determining the issue under s.5(2)(b)(iii) of the Cross-Vesting Act.

(b) The residence or place of business of the parties/connections with the forum

Mr. Harris' residence is Queensland, whereas Amaca, an asbestos manufacturer and supplier (in New South Wales and Queensland), is resident in New South Wales (Sydney).

(c) The substantive law and its application to the case

The relevant substantive law is the common law of Australia. It has not been suggested in argument that the common law as it applies in this case to the assessment of damages, if the proceedings are heard in Mr. Harris' lifetime, will be qualified by Queensland statutory law. In contrast, in Schultz (supra) the law of South Australia concerning the assessment of damages in actions for personal injury was noted as being partly common law and partly statute (in particular s.30B of the Supreme Court Act 1935 (SA)): Shultz (at [25]). The fact that the common law applies whether the proceedings be heard by the Tribunal or by the Supreme Court of Queensland, in accordance with principle enunciated by Mason, P. in Barry , materially reduces the significance to be attached to the fact that the place of the alleged tort is Queensland.

This, as earlier observed, was the critical issue in Barry . By reason of the admissions made by the plaintiff and the concession made as to the ability of Mr. Harris to rely upon s.25(3) materials if the proceedings were transferred to Queensland, this factor does not have application as a countervailing consideration to the application for transfer as it did in Barry . Additionally, there has been no suggestion by the parties in this case that s.25B has any role or work to do in this matter. This is understandable given the admissions made.

(e) The balance of convenience to parties and witnesses

There is the prospect of Queensland medical and other witnesses relevant to damages being called. However, the fact that the Tribunal is travelling to Queensland to take evidence means has meant that there is no significant expense or cost advantage consideration in determining the appropriate forum.

I have earlier referred to Mr. Harris' medical diagnosis and prognosis. The evidence indicates that his condition has deteriorated since diagnosis and is deteriorating. I consider that his case should be regarded as an urgent one. On that basis I accept that should the matter be transferred, the Supreme Court of Queensland would order an expedited hearing. As to what that means in terms of actual timing, the evidence is a little imprecise. Mr. Victorsen's affidavit sworn on 20 May 2005 provides an example of the case of Clarke transferred from the Supreme Court of Victoria to the Supreme Court of Queensland, which illustrated that the latter court is prepared to act expeditiously in cases such as this one. 65 However, in weighing up all of the factors to which I have referred, I do not consider that there is such a preponderance of factors favouring transfer as, for example, existed and were identified by Bell, J. in Ms. Haylock's case (see above). The factors identified by members of the High Court in Schultz (including the fact that the South Australian common law on damages was qualified by statute, the significance in that case of the inconsistency between the substantive law of the lex loci delicti and the lex fori in terms of the provisions in s.25B, the South Australian residence of the plaintiff and of the place of business of the defendant and the absence of urgency having regard to the fact that the disease in Schultz was asbestosis and not malignant mesothelioma and therefore no imminent threat to life are distinguishing features), do not apply to the present case. 66 When one has regard to the fact that factors identified above, namely, factors (a), (b), (c), (d) (e) and (f) either are, for reasons discussed earlier, either neutral or do not weight heavily in favour of transfer (and two or three tend to favour the Tribunal), the question then is whether the absence of (d), procedural and evidentiary advantages, arising from the provisions of the Dust Diseases Tribunal Act, (due to the plaintiff's admissions and concession) tilt the balance in favour of transfer? 67 Subject to the exposure issue, these proceedings are essentially in the nature of a one day or perhaps a day plus assessment of damages case. The claim is essentially for treatment expenses, past and future loss of wages and general damages to be assessed on substantive law principles that are common to the two fori in question. Absent issues such as those present in the BIC case and given the ability and preparedness of the Tribunal to proceed to a hearing next week it is hard to see how the balance of relevant factors requires this case in the circumstances to be cross-vested/transferred in the interests of justice. 68 To permit the Tribunal to proceed with the hearing of the proceedings on 6 July next in circumstances in which Mr. Harris' health is deteriorating, is, it seems to me, both the most expeditious and preferable option. That conclusion does not, I consider, allow considerations of compassion or expediency to trump principle. Principle does, within limits, as earlier noted, indeed make provision for practical considerations to operate in response to the exigencies of a case such as this, provided that a fair balance throughout the evaluation is maintained in the inquiry and assessment of the overall interests of both parties and of the ends of justice. 69 The available hearing that has been scheduled by the Tribunal is a fact that cannot be ignored. A particular system of justice that is able in a principled way to provide, in urgent and grave cases, such a quick hearing is a factor, amongst others, to be properly considered. The opportunity to relieve a dying litigant of the distraction and concern associated with the pursuit of legal rights (often for the benefit of surviving defendant(s)) at the earliest possible time cannot, at least in terms of both practicality and efficiency on the facts of the present case, count in the assessment for nothing. It is in this case a factor together with others that tilts the balance in favour of refusing to transfer the proceedings. 70 I accordingly dismiss the application. The applicant is to pay the defendant's costs of the application. **********

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