AMACA PTY LIMITED v MUNDY & ORS

Supreme Court of NSW|2008-06-05|Before: Hall J

The application for a cross-vesting order 41 The order sought in the summons was that the proceedings No. 167 of 2004 be removed from the Dust Diseases Tribunal of New South Wales into this Court pursuant to s.8 of the Cross-Vesting Act (order 3) and that the proceedings be transferred to the Supreme Court of South Australia (order 4). 42 Mr D J Hooke, of counsel, who appeared on behalf of the plaintiff, contended that an order should be made, notwithstanding the lateness in the application and the fact that the proceedings have been set down for hearing in Adelaide before the Tribunal commencing 17 June 2008. In that respect, Mr Prentice, in his affidavit frankly conceded that there had been extensive delay, but that it was only in the light of the advice of senior counsel's advice recently received that the summons was filed. 43 Mr Hooke submitted that, whilst delay is an important matter for the Court to assess, the real question is whether or not material prejudice would arise to the first defendant should the proceedings be transferred to the Supreme Court of South Australia. I will return to this aspect shortly. 44 The provisions of s.5(2)(b)(iii) of the Cross-Vesting Act provide as follows:- "5(2) Where:- (a) a proceeding (in this sub-section referred to as the 'relevant proceeding') is pending in the Supreme Court (in this sub-section referred to as the 'first court'); and (b) it appears to the first court that:- (i) … (ii) … (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." 45 The identification of the interests of justice referred to in this provision requires a consideration of connecting factors so as to enable the Court to identify the "natural forum" for the resolution of the proceedings. In Valceski v Valceski [2007] NSWSC 440 at [69], Brereton J, in relation to the basis upon which s.5 of that Act was to be applied, observed:- "69. That leads to the third factor, the interests of justice. The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so - for which purpose it is both necessary and sufficient that the transferee court be the 'more appropriate' forum [ BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 421 [14], 434-5 [63]]. In identifying the 'more appropriate forum', relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions, and the 'connecting factors' described by Lord Goff in Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460 at 478 - including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction [ BHP v Schultz , 422 [18]]. Consideration of relevant connecting factors may identify a 'natural forum' [ BHP v Schultz , 423 [19]; cf British American Tobacco Australia Limited v Gordon [2007] NSWSC 230, [44]]. As Schultz makes clear, the interests of justice concern those of both parties, … rather than the selection of the most advantageous, or at least disadvantageous forum for one of them, the 'interests of justice' are to be judged by more objective factors, such as facilitate identification of the 'natural forum', in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be [cf British American Tobacco v Gordon , [47]]." 46 In James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357, Spigelman CJ at 361, [7] 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." 47 As the Chief Justice went on to observe in Barry, the test of location of a tort is one of substance (at p.361). In the present case, the location of the alleged tort was, of course, South Australia. 48 In relation to the provisions of s.5(2)(b)(iii) of the Cross-Vesting Act, the Chief Justice in Barry also observed at 361, [3]:- "This power does not confer a discretion, in the sense that the Court exercises a power of choice. The Court makes a judgment as to what 'the interests of justice' require and, having made the judgment that the proceedings ought be determined in another court, the Court is obliged to transfer the proceedings …" 49 An exception may arise where it is clear that "substantial justice" cannot be done to a plaintiff in what is otherwise "the appropriate" forum: Goldamere v Metso Minerals [2007] NSWSC 980 per McDougall J at [10]. In the present case, no-one submitted that substantial justice could not be done to the first defendant, either in the Tribunal or in the Supreme Court of South Australia. 50 In BHP Billiton Limited v Schultz (2004) 221 CLR 400, Kirby J observed:- "161. The key purpose of the residual criterion expressed by the legislatures of Australia in the common form of the Cross-Vesting Acts has been, for this purpose, to follow the approach of Lord Goff (in Spiliada Maritime Corporation v Cansulex Limited (supra) …

… 163. … This was to the effect that the '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' … … 170. Normally, 'the interests of justice' of all parties within Australia will require the transfer of proceedings to be determined by the Supreme Court of another State or of a Territory where that Court, rather than the court of the forum selected by the plaintiff, is the 'natural forum' being that 'with which the action has the most real and substantial connection'." 51 The plaintiff, in support of the present application under the Cross-Vesting Act, relied upon the following matters:-

(1) The first defendant's employment and alleged exposure to asbestos occurred in South Australia.

(2) The first defendant is a resident of South Australia.

(3) All witnesses, both lay and expert, are resident in South Australia.

(4) The employer, RESI Corporation, is a statutory corporation of South Australia created by the Electricity Trust of South Australia Act 1946 (SA). 52 The plaintiff contended that all these connecting factors (notwithstanding that the plaintiff was incorporated in New South Wales) indicated that South Australia is the natural forum for the first defendant's action. 53 Mr Hooke provided a copy of the Dust Diseases Act 2005 (SA), which commenced on 8 February 2006. That legislation provides, it was said, for the District Court of South Australia to have a similar capacity to deal with litigation as that possessed by the Tribunal. 54 Accordingly, it was submitted that, in the present case, it was difficult to conceive a case more closely related to the State of South Australia and more appropriate to be heard by a court of that State, in particular, having regard to the specialist procedure now available in the District Court of South Australia. 55 Mr Hooke additionally relied upon the fact that his client and RESI Corporation both made a concession as set out in paragraph 15 of the written outline submission on behalf of the plaintiff in the following terms:- "Of course, in the present case, subject to Mr Mundy's exposure to asbestos from the plaintiff's products, liability is otherwise not in issue and the only matter which will fall for determination is the assessment of damages, including any exemplary damages under s.9(2) of the Dust Diseases Act 2005 (SA)." 56 Mr G Rundle of counsel, who appeared for RESI, supported the plaintiff's application and adopted his submissions (transcript, p.32). Mr Rundle also there confirmed that his client made the same concession as set out in the preceding paragraph. 57 As noted earlier, the further amended statement of claim filed on 4 March 2008 includes a claim for "exemplary damages pursuant to s.9(2) of the Dust Diseases Act 2005 (SA)". 58 It appeared to be common ground between the parties that s.9(2) is a novel provision governing an injured person's entitlement to exemplary damages. I have been informed to date there has been no judicial consideration of its provisions. Section 9(2) is concerned, not with the quantum of damages, but to the circumstances in which exemplary damages may be awarded. Mr Hooke raised a number of issues which he said are relevant to the possible application of the provision. 59 I will return to the significance of the exemplary damages claim and s.9(2). Before doing so, I turn to the issues raised by Mr Semmler SC, on behalf of the first defendant, Mr Mundy. 60 Mr Semmler referred, in his oral submissions, to the Dust Diseases Act 2005 (SA), to the issue of delay, the issue of the distress and/or anxiety that would be occasioned to his client if the proceedings were not to be heard in accordance with the present schedule, that the exemplary damages claim under s.9(2) was equally capable of interpretation application by a New South Wales Court and that, so far as the specialist procedures available under the Dust Diseases Act 2005 (SA) and those available under the Dust Diseases Tribunal Act (NSW) the position was "neutral". 61 Mr Semmler made a submission that the provisions of s.5(2)(b)(iii) of the Cross-Vesting Act applied to a proceeding that would be "determined by the Supreme Court of another State or of a Territory" and that in this case, because the matter would almost certainly be heard in the District Court of South Australia, it would only be by a "tortured" construction of s.5(2)(b)(iii) that it could be said that the section applied. 62 I, with respect, disagree. The Cross-Vesting Act focuses upon the "jurisdiction" of federal, State and Territory courts and to the "cross-vesting of jurisdiction" between those courts. There is no issue, of course, but that the Supreme Court of South Australia does have "jurisdiction" to hear and determine the proceedings initiated by the first defendant should the proceedings be transferred to that court. 63 Where proceedings are properly brought in an Australian court, whether by the filing of originating process or by a transfer pursuant to an order made under s.5(2) of the Cross-Vesting Act, the Court in question is subject to a duty to exercise its jurisdiction. 64 The Supreme Court of South Australia has conferred upon it by the provisions of s.24 of the District Court Act 1991 (SA) a power to order the transfer of an action to another court. Section 24(1) provides that the Supreme Court of South Australia, or a Judge or Master of that Court, may order:- "(b) That civil or criminal proceedings in the Supreme Court that lie within the jurisdiction of the District Court be transferred to the District Court." 65 The fact that the Supreme Court of South Australia has a power in the nature of a statutory discretion to transfer an action in relation to which it has jurisdiction to another court and the fact that it may, at a subsequent time after the making of a cross-vesting order exercise that power, does not in any way lead to the conclusion that this Court is thereby prevented from making an order to transfer the relevant proceeding. 66 There may, of course, be cases that are transferred to the Supreme Court of South Australia in respect of which, by reason of particular matters, that Court determines that it should hear and determine the action. In other cases, perhaps, most cases, it may determine that the preferable course is for the action to be transferred so that it can be dealt with in accordance with the specialist jurisdiction now conferred upon the District Court of South Australia. 67 These are, however, matters for the Supreme Court of South Australia to determine at a later point in time as an incident of the jurisdiction vested in it. How that court may subsequently exercise its statutory discretion to transfer is not to the point. Up to that time, it undoubtedly has "jurisdiction". The fact that it also has the statutory power to which I have referred cannot detract from the application of s.5(2)(b)(iii) of the Cross-Vesting Act should this Court determine, as matters presently stand, that it is "in the interests of justice" to transfer the proceedings to the Supreme Court of South Australia. 68 Mr Hooke sought to rely upon s.8 of the Cross-Vesting Act as indicating that "the Act clearly envisages the transfer of proceedings between inferior courts or tribunals by means of or via the Supreme Court of a State …" (transcript, p.32). He observed that an order to that effect was sought in paragraph 3 of the Summons. The consequent submission was that it is then a matter for this Court to determine whether an order should be made under s.5(2)(b)(iii) of the Act. He submitted that "determined" in that provision meant "dealt with" and it was a matter for the Supreme Court as the transferor court to determine whether there should be a transfer order made. This latter submission has essentially been dealt with above and therefore I need not expound on what I have earlier written. 69 Accordingly, I do not consider that the submission made on behalf of the first defendant in relation to the provisions of s.5(2)(b)(iii) of the Cross-Vesting Act identifies or provides an obstacle or an impediment to the making of an order if this Court is otherwise satisfied that it is in the interests of justice to do so.

In the interests of justice 70 This is plainly a case in which there is such a preponderance of connecting factors with one forum (South Australia) that it can be readily identified as the most appropriate, or natural forum: Schultz (supra) at 423 per Gleeson CJ, McHugh and Heydon JJ. 71 There are, in addition, two other considerations. The provision of s.9(2) of the Dust Diseases Act 2005 (SA), generally speaking, is capable of being seen as a beneficial provision so far as an entitlement to exemplary damages is concerned when compared to rights under the common law to such damages. In circumstances where the provision is yet to be the subject of any judicial consideration, the question as to whether the courts of the State that has enacted such a provision should pronounce upon its interpretation and application is, in my opinion, a relevant consideration on the present application. In this respect, Mr Hooke placed reliance upon dicta in Pozniak v Smith (1982) 151 CLR 38. That case involved a question of remitter to a State Supreme Court in proceedings between residents of different states where issues as to the balance of convenience were considered. The joint judgment at 47, observed:- "… the only safe course, in a case where the relevant law and the competing jurisdictions is materially different in its effect on the rights of the parties, is to remit it to the State whose law has given rise to the cause of action. As Brennan J observed in Robinson v Shirley , the power 'is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff's rights or correspondingly alter a defendant's obligations'." 72 In Schultz (supra), Callinan J (at 490 to 491) referred to the comparison between substantive provisions in the legislation of different states on the law of limitations stating:- "… the limitations law of South Australia as substantive law, would, as the parties accept, apply. 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." 73 Although s.9(2) of the Dust Diseases Act 2005 (SA) is not, on what I have been informed from the bar table, as yet a provision that South Australian Courts have necessarily acquired a familiarity with, nonetheless, there remains, in my opinion, an "obvious reason" as to why it is preferable for the Courts of South Australia to construe and apply its own legislation especially as it may be called upon to do so in the future on a frequent and consistent basis. 74 In this respect, Gummow J in Schultz (supra) also observed (at 444):- "… it is South Australia and the Courts of that State that 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 …"

Determination 75 It is apparent that the jurisdiction of the Supreme Court of South Australia (or in the event that that court determines, the District Court of South Australia) is the natural forum for the proceedings. Although there is some dispute on the evidence before me as to precisely how long it may take for a hearing to take place, the parties have indicated, as one would expect, that they would take advantage of all the work and processes that have already taken place in the Dust Diseases Tribunal and that that would assist in expediting a hearing if the proceedings are to be transferred to the Supreme Court of South Australia under the Cross-Vesting Act. 76 A matter of concern has been the issue of delay and whether or not there is any consequential disadvantage or other detriment to the first defendant such as would require in the interests of justice that the proceedings be heard and determined in the Tribunal on 17 June 2008. 77 In considering the present application, I have had specific regard to the medical condition of the first defendant. In applications made for a transfer of proceedings in what might be referred to as "asbestos litigation", courts have had specific regard to the medical condition of plaintiffs. Where a person suffering from an asbestos disease is in a critical condition, the urgency of the case has, in particular circumstances, been an important factor in determining where the interests of justice lie. 78 As earlier indicated, it was accepted by the parties that the asbestos conditions of the first defendant is not, on the evidence, critical in the sense of giving rise to urgency. I have also had regard to the psychological condition of the plaintiff, being the alleged adjustment or anxiety disorder. Mr Semmler referred to a diagnosis by a psychiatrist, Dr Ewers (transcript 5 June 2008, p.20). There is no report from that doctor in the evidence before me on this application. I raised this issue with the parties before making orders on Friday 13 June 2008 and Mr Semmler fairly stated, in effect, that he was not putting forward the psychological condition as one that could be said to be critical in the sense of giving rise to urgency. 79 The delay, although extensive, has been mitigated to some extent by two factors. The first is that the Dust Diseases Act 2005 (SA) only came into operation in February 2006. The second is that it was only recently that the statement of claim was amended to rely upon the new provisions of s.9(2) of that Act to claim exemplary damages. 80 I consider, in all the circumstances referred to above, that the delay itself, though substantial, is not in itself such as to warrant the refusal of the application. 81 I am of the opinion that, provided appropriate orders are made whereby the plaintiff bears the costs thrown away by an order being made under the Cross-Vesting Act, that delay is not of such weight as to tilt the balance in favour of the first defendant.

Orders 82 On 13 June 2008, I made orders in terms of paragraphs 3 and 4 of the summons. On Mr Semmler's application, I granted a stay on order 4 for a period of 28 days. 83 The orders made were made upon the condition that the plaintiff pay the first defendant's costs thrown away and I note that the plaintiff has given an undertaking to that effect.

Costs 84 Mr Hooke stated that his client did not seek an order for costs in its favour should it be successful on this application. Accordingly, no such order is made. 85 Mr Semmler contended that, regardless of the outcome of this application, his client should have an order for costs made in his favour. 86 On 13 June 2008, I granted leave to the first defendant to file any affidavit evidence in support of its application for costs. Accordingly, I will defer finally ruling on such costs until I have considered any further evidence and submissions. I will deal with that matter by way of separate judgment and order when the matter comes back before me at 2.15 on Monday 16 June 2008. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005(NSW)

Electricity Trust of South Australia Act 1946(SA)

Service and Execution of Process Act 1912(Cth)

CITATION : AMACA PTY LIMITED v MUNDY & ORS [2008] NSWSC 604

BHP Billiton Limited v Schultz (2004) 221 CLR 400 Goldamere v Metso Minerals [2007] NSWSC 980 CASES CITED : James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357 Pozniak v Smith (1982) 151 CLR 38 Valceski v Valceski [2007] NSWSC 440

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