Amaca Pty Ltd (Under New South Wales Administered Winding Up) v Munro

Judgment 1By Summons filed on 9 October 2012 the Plaintiff, Amaca Pty Ltd apply for the following orders: (i) removing proceedings pending in the Dust Diseases Tribunal of New South Wales (the DDT) brought by the First Defendant Michael Munro, against Amaca and Comcare into this Court pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987; and (ii) transferring the proceedings to the Supreme Court of Western Australia pursuant to s 5(2) of the Act. 2On 6 February 2013 I dismissed the Summons and ordered the Plaintiff to pay the First Defendant's costs. I said that my reasons for so doing would be published at a later date. These are my reasons for those orders. 3 Mr Munro filed his Statement of Claim in the DDT on 2 August 2012. The Statement of Claim and the Plaintiff's Statement of Particulars were served on 19 September 2012. Mr Munro alleges that as a result of his exposure to asbestos in the course of his employment and otherwise he contracted asbestosis, asbestos-related pleural disease and pleural plaques. 4In his Statement of Claim Mr Munro alleges that he worked from about 1954 until about 1961 as an apprentice carpenter for the Department of Public Works in Western Australia. He claims that he was exposed to asbestos during that period. In the detailed Statement of Particulars he estimates that this period contributed about 50% of his overall exposure to asbestos. 5He claims further that from 22 July 1958 until about 20 March 1961 he served in the Royal Australian Navy Reserves as a reservist on RAN ships and at shore establishments including HMAS Leeuwin in Western Australia. He alleges that he was extensively exposed to asbestos at HMAS Leeuwin. In his particulars he also claims to have been exposed to asbestos whilst on board HMAS Diamantina. He estimates that his exposure to asbestos in this period contributed some 10% of his overall exposure. 6He alleges that from about 1961 until about 1965 he served in the Royal Australia Army in the Infantry and Water Transport Department at Holsworthy, Chowder Bay and Garden Island Naval Dockyard in New South Wales. He also spent time on board the RAN trooper ship HMAS Sydney. In his particulars he estimates that his exposure to asbestos during this period contributed 20% of his overall exposure. 7Finally, he alleges that from a date in about 1972 until about a date in about 1973 he was employed by the Western Australian Government railways as a carpenter carrying out building work in Narrogin in Western Australia. He estimated that this period of employment contributed about 15% of his overall exposure to asbestos. 8In his Particulars he further estimated that his non-occupational exposure to asbestos contributed about 5%. 9Insofar as his exposure to asbestos occurred in Western Australia Mr Munro claims damages, interest and costs. Insofar as his exposure occurred in New South Wales he claims provisional damages pursuant to s 11A Dust Diseases Tribunal Act 1989 for the conditions he claims now to suffer from together with an order pursuant to s 11A that he might bring any further claim should he develop any of asbestos-induced carcinoma, lung cancer or mesothelioma. Section 11A enables the Tribunal to award damages assessed on the assumption that the injured person will not develop another dust related condition and also to award further damages at a future date if the injured person does develop another dust related condition. Rule 5 of the Dust Diseases Tribunal Rules sets out the procedure in relation to such an application. 10Mr Munro opposes the orders sought by Amaca. Comcare did not appear at the hearing of the Summons but I was informed by Mr Sheller of Counsel who appeared for Amaca that Comcare neither consented to nor opposed the transfer. 11There was no evidence about whether Amaca had filed a Defence to Mr Munro's claim in the DDT nor about what was in issue in relation to his claim against Amaca. The inference I drew from Mr Munro's submissions was that liability was in issue with Amaca. Amaca did not submit otherwise. There was evidence that Comcare had not admitted liability nor his disabilities. 12There was evidence from Amaca's Sydney solicitor that she anticipated receiving instructions from Amaca to issue a cross-claim against the State of Western Australia in relation to Mr Munro's exposure to asbestos whilst working with the Western Australian Department of Public Works between 1954 and 1961 and when he was working for the Western Australian government between 1972 and 1973. The proceedings were, therefore, at a fairly early stage. 13Mr Munro lives at Dongara which is a town near Geraldton in Western Australia. His Statement of Particulars lists his various medical practitioners most of whom are in Perth and some of whom are in Dongara. 14Recent medical evidence on behalf of Mr Munro suggested that because of the conditions from which he suffers his life expectancy was in the order of 12 months. His respiratory physician said that Mr Munro was deteriorating with worsening oxygen concentrations and worsening comprehensive lung function. The doctor said that Mr Munro should be on oxygen 24 hours per day. 15The Jurisdiction of Courts (Cross-Vesting) Act 1987 relevantly provides: 5. (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. ... 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 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. (2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court. 16In BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 Gleeson CJ, McHugh and Heydon JJ said: [14] In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. [15] ... The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff's early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases. ... [18] ...Reference is sometimes made to one forum or another being the "natural forum". Such a description is usually based upon a consideration of "connecting factors", described by Lord Goff in Spiliada as 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. Lord Templeman described such factors as "legion", and said that it was difficult to find clear guidance as to how they are to be weighed in a particular case. Thus, New South Wales might well be the "natural forum" for an action for damages brought by a passenger in a motor vehicle against the driver if they were both residents of New South Wales, even though the injury resulted from a collision that occurred on the other side of the Queensland or Victorian border. 17Amaca submitted that the natural forum for the proceedings was Western Australia and drew attention to what was said in the various judgments in Schultz at [18], [109], [170] and [259] as well as what Spigelman CJ said in James Hardie & Coy Pty Ltd v Barry; Seltsam Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [7]: 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. 18Amaca submitted that Mr Munro resided in Western Australia, all his doctors were from Western Australia and it could be reasonably inferred that most or all of the witnesses as to liability and damages (particular reference was made to his claim for Griffiths v Kerkemeyer damages) would be from Western Australia. Accordingly, it was said that most of the connecting factors were with Western Australia. 19In relation to the claim against Amaca I accept that the place of the tort is Western Australia and that most factors point to Western Australia as the natural forum. 20However, the difficulty with identifying a natural forum generally in Mr Munro's proceedings is that part of the claim is against Comcare for work that was performed by Mr Munro on a ship and on land in New South Wales from 1961 to 1965. Amaca's answer to that is at least partly that, in the apportionment made by Mr Munro concerning his exposure to asbestos, this period of time was said to amount to 20% of his overall exposure as against the remainder which occurred in Western Australia. A further aspect of the claim against Comcare appears to relate to time on ships in or near Western Australia. That period is said to constitute 10% of his overall exposure. 21Nevertheless, there is not simply one place of the tort to consider as was the position in Schultz. The position in the present case is somewhat analogous to the position in Wallaby Grip Limited v Gilchrist [2007] NSWSC 1181 where the plaintiff's exposure to asbestos in New South Wales was 10% whereas his exposure in Queensland, where it was sought to transfer the proceedings, was 70%. Bell J said at [48]: ... the link to New South Wales is more than merely nominal. To my mind this takes away from the force of the submission directed to the reasonable expectation of the parties as to the court in which the proceedings would be brought. 22Gilchrist demonstrates, and Amaca accepts, that percentages alone do not dictate a result. The fact that there is a not insubstantial connection with New South Wales may result in there being no "natural forum" for the proceedings. All factors need to be weighed up. 23Although matters going to determine the "natural forum" of the proceedings might be regarded as the most significant considerations, the test is ultimately what is "in the interests of justice". It is clear that the particular advantages of a jurisdiction with regard to procedure, evidence and speed of dealing with matters are very relevant to a consideration of the appropriate forum: Schultz at [15], [21], [28] and [169]; Barry at [18], [33], [112]; Gilchrist at [39]-[40], [42], [44] and [49]. 24Mr Munro submitted that various provisions in the Act and Regulations covering the operation of the DDT demonstrated that it was in the interests of the parties for the proceedings to remain there. This position is said to contrast with the position in Western Australia where asbestos-related claims are entered into the Commercial and Managed Cases List ("CMC") and are case managed by a justice of the Court. It is not a special list for asbestos-related claims and there are no special procedures in place for expediting asbestos claims. Because there is no special list for asbestos- related claims, these claims are governed by the Supreme Court Rules and subject to particular case management directions given by the judge in the CMC List. 25With regard to matters of procedure the Dust Diseases Tribunal Regulation 2007 establishes a claims resolution process which includes compulsory mediation. Mr Munro's proceedings are subject to that process and a mediation has been fixed for 2 April 2013. 26Both parties relied on affidavits from solicitors in Perth dealing with the procedures employed in the Supreme Court of Western Australia for asbestos-related claims. Both solicitors had extensive experience in such claims. Their evidence did not differ very much on significant matters. 27Mr McKenna, who gave evidence on behalf of Amaca, said that mediation is not a compulsory feature of the Western Australian common law jurisdiction but that, in his experience, claims brought against Amaca always go to mediation by consent. Mr McKenna's evidence discloses that after the filing and serving of defences and the service of any informal list of discoverable documents that are sought, a date is then set for the service of a Schedule of Damages which would generally be no more than eight to ten weeks from the time the directions are made by the Court. Thereafter a mediation is set about 10 to 14 days after the service of that Schedule of Damages. 28At best, therefore, if the proceedings were cross-vested to the Supreme Court of Western Australia now it would be unlikely that a mediation would be held before the end of April 2013 and more probably into May 2013. 29In a subsequent affidavit Mr McKenna said that if the proceedings were cross-vested to the Supreme Court of Western Australia he would expect that the matter could proceed to mediation within two or three months. That is consistent with my conclusion in the preceding paragraph. 30That process could be delayed by a number of matters. First, Comcare's attitude to a mediation and to the minimum likely timetable is unknown. Secondly, Amaca has said that it intends to cross-claim against the State of Western Australia in respect of that State's responsibility for Mr Munro's exposure to asbestos in the various periods he worked for agents of the State. There is evidence that the State of Western Australia is prepared to participate voluntarily in a mediation or informal conference but the solicitor's letter comprising this evidence indicates that the State of Western Australia is still investigating the matter raised by Mr Munro. There is no certainty, therefore, that the agreement to participate in a mediation would be an agreement that the mediation would take place as early as late April or early May 2013. 31Although Amaca accepts, at least for the purposes of a mediation, that the particulars provided by Mr Munro are sufficient, it is not known if Comcare takes a similar view. 32The fact that a mediation must take place on 2 April if the proceedings remain in the DDT, set against some uncertainty as to when a mediation will take place in Western Australia, is a factor favouring the proceedings remaining in the DDT. This is the more so when the statistics from both solicitors demonstrate the very high likelihood of settlement of these claims. 33The Dust Diseases Tribunal Act 1989 (DDTA) also contains provisions directed to streamlining hearings. One such provision is s 25(3) which provides: 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. 34There appears to be doubt about whether such a provision forms part of the substantive law of New South Wales or is merely procedural. If the former it would have no application against Amaca because the place of that alleged tort is clearly Western Australia. Amaca points to what Callinan J said of this and some other provisions in the DDTA in Schultz: [253] Sections 23, 25, 25A and 25B do more than relax the rules of evidence. They alter, or at least would allow the Tribunal to depart from the audi alteram partem rule. Their effect is to enable the Tribunal to use against a party evidence and findings which it has had no opportunity of testing or controverting. However they may be expressed, provisions capable of producing that outcome, of denying natural justice, do not have the appearance of being merely procedural. Kirby J had a similar view at [148] and [149]. 35However, in Barry, Mason P (with whom Spigelman CJ and Priestley JA agreed) considered s 25(3) to be procedural. He said at [112]: [112] In my view, the unique procedural powers of the Tribunal are relevant and significant in the task of determining the more appropriate forum in the ultimate quest for what is in the "interests of justice". They are not mere forensic advantages to one party that represent a comparable disadvantage to the other party (cf Spiliada at 482ff). They are also factors to be weighed against transfer insofar as they have the clear capacity to assist both the defendants and the judicial system of Australia in the just, quick and cheap resolution of the present dispute. In Grigor's Case [James Hardie Industries Ltd v Grigor (1998) 45 NSWLR 20] I said (at 43): With some hesitation, I regard s 25(3) of the Dust Diseases Tribunal Act 1989 as offering more than a mere legitimate personal or juridical advantage to the plaintiff: cf Voth (at 571); Esanda Finance Corp Ltd v Wordplex Information Systems Ltd (1990) 19 NSWLR 146 at 156. The potential savings of time and cost offered by this provision are significant, even if used with proper circumspection and close attention to the defendants' right to insist on clear prior indication of the particular use to be made of the voluminous s25(3) material that is often tendered. So long as the power is fairly used it cannot, in my opinion, be viewed as a source of prejudice to one party over another. Since s25(3) is a matter of procedure it is, I consider, appropriate to take it into account in focussing on "the advantages arising from the continuation of the proceedings in the selected forum" (which is acceptable: Voth (at 559): see also (at 571) while avoiding "assessment of the comparative procedural or other claims of the foreign forum" (which is not: ibid). Beazley JA agreed. 36Amaca pointed also to a remark of Hoeben JA in Studorp Ltd v Robinson [2012] NSWCA 382 at [91] where he said: In relation to the fourth factor taken into account by her Honour, it may well be that s 25(3) of the DDT Act will be found to be substantive and consequently the parties will not have the advantage of that section. This was said to be support for the view of Callinan J in Schultz. However, two matters suggest that Hoeben JA's view is not or may not be a final one. First, neither Barry nor Grigor was cited to the Court in Studorp. Secondly, when he came to deal expressly with the argument in the Notice of Contention of the Respondent in that case (see at [34]) that s 25(3) was a procedural provision Hoeben JA said: [96] Although I have not specifically dealt with the matters raised by Mr Robinson in his Notice of Contention, it is implicit in the above analysis that I do not regard those matters as relevant one way or the other to whether the DDT is an inappropriate forum. There is too much doubt about whether s 25(3) is procedural or substantive. The weight of opinion as extracted by O'Meally J in Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 favours a conclusion that it is substantive. (emphasis added) Meagher JA at [31] expressly agreed with Hoeben JA's reasons regarding the Notice of Contention. Allsop P agreed generally with Hoeben JA whilst adding some remarks of his own unrelated to s 25(3). 37In circumstances where there is no appeal from a single judge to the Court of Appeal in an application such as the present (see s 13 of the Act) but where there is an appeal directly, subject to a grant of special leave, to the High Court (see Schultz at [55] and [203]), interesting questions arise for the doctrine of stare decisis in circumstances where there is a conflict between a judgment of the Court of Appeal and a judgment of the High Court. Two matters incline me to the conclusion that the provisions of s 25(3) DDTA provide support for the proceedings remaining in the DDT 38First, only two of the seven judges in Schultz expressed the view that s 25(3) was not merely procedural. Two decisions of the Court of Appeal, Barry and Grigor have held it to be procedural. 39Secondly, it is for the present applicant to show that it is the interests of justice to transfer these proceedings. If there is a doubt (by reason of Studorp and the views of Callinan J and Kirby J) about whether s 25(3) is substantive Amaca has failed to show that a factor which, prima facie, favours the proceedings remaining in the DDT has been removed. The obverse of this conclusion is that unless Amaca persuaded the DDT that the provision was substantive s 25(3) will enable the evidence referred to in the subsection to be admitted with the leave of the DDT. For reasons given by Mason P in Grigor that course would be a benefit in terms of time and cost, and could not be regarded as prejudicial to one party. 40A further matter, which is almost certainly procedural, is to be found in Division 5 of the DDT Regulation dealing with apportionment between defendants. This Division prescribes a mandatory procedure for resolving apportionment issues including fixed time periods for agreement and the appointment of a Contributions Assessor to determine apportionment if no agreement can be reached in the stipulated time. This scheme forms part of the Claims Resolution Process introduced by the Regulation in 2007. This process is designed to minimise costs at an early stage of the proceedings. There is no similar process in the Supreme Court of Western Australia. 41A further but not unrelated matter concerns efficiency resulting from the particular expertise at the DDT in these type of matters compared with the position in the ordinary courts including the Supreme Court of Western Australia. That is also a relevant factor: Schultz at [20], [28] and [104]; Gilchrist at [49]. 42There is evidence from Mr Munro's solicitor, a Perth practitioner, that her enquiries demonstrated that in the years 2007 to 2012 some 34 matters have proceeded after a hearing to judgment in the DDT. In the same period she said that to the best of her knowledge there have been two matters heard to judgment in the Supreme and District Courts of Western Australia. The evidence in relation to the experience of the Supreme Court of Western Australia from Mr McKenna was significantly similar. He said that of the 326 cases his firm had handled for Amaca since 2005 "only three matters have proceeded to trial or been listed for trial" in Western Australia. A comparison of the number of matters which have proceeded to judgment after a hearing in the two jurisdictions point to the likelihood of a greater expertise on the part of the DDT. 43Finally, regard must be had to the procedure if a Plaintiff's evidence must be taken urgently because of a fear of death or some similar reason. Although s 24 of the DDTA permits the appointment of persons specified in the section to take evidence de bene esse, the usual practice of the DDT is for the judge to take the evidence himself or herself. That may be significant because the Mr Munro's credit may well be an issue in the proceedings. 44The evidence concerning the practice of the Supreme Court of Western Australia from Mr Munro's solicitor is that the evidence is not taken by the Judge but by the Judge's Associate or a Registrar. When that has been done the matter is then re-listed and various pre-trial procedures are followed which take up to six or eight weeks. 45In my opinion the DDT procedures are to the advantage of both parties because the trial judge is in a position to make any necessary credit findings. 46 In my opinion, although the Plaintiff's residence and the location of many of the witnesses favour Western Australia being the appropriate forum the other matters I have discussed result in it not being in the interests of justice for the proceedings to be transferred to the Supreme Court of Western Australia. Those matters are: (1)The more than nominal connection of the proceedings to New South Wales by reason of the claim against Comcare for the exposure of Mr Munro to asbestos in New South Wales; (2)The claims resolution process within the DDT including, but not limited to, the fact that a mediation has been fixed for 2 April 2013. (3)The reasonable prospect that the provisions of s 25(3) DDTA will be able to be employed if the proceedings remain in the DDT. They will not be able to be employed with respect to Amaca if the proceedings are transferred. (4)The expertise of the DDT having regard not only to its specialist jurisdiction but to the number of cases it has determined after a hearing. (5)The practice of the DDT for urgent hearings where death is close. 47The matters in (2) and (3) above are to be weighed particularly in the light of the evidence of the Plaintiff's medical condition and his life expectancy. It is not illegitimate to have regard to this matter although it is of benefit only to Mr Munro: Schultz at [15].