By summons filed on the 18th of April 2024 the plaintiff Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) seeks orders pursuant to ss 8 and 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) for (i) the removal of these proceedings from the Dust Diseases Tribunal of New South Wales ("DDT") into the Common Law Division of this Court; and (ii) the transfer of those proceedings to the Supreme Court of Queensland. The plaintiff's summons is supported by the affidavit of its solicitor, Mr Mark Vincent Victorsen, sworn 15 April 2024; and written submissions by Mr Hart of counsel, who appeared before me today, filed 24 May 2024.
By written submissions filed 31 May 2024, the defendant, Mrs Trena Robin Johnson (in her capacity as the legal personal representative of the estate of the late Ross Johnson) consents to the transfer orders being made, subject to the condition that each party bears its or her own costs of, and incidental to, the summons as, apparently, was agreed between the parties prior to the filing of the summons. Otherwise, the defendant has not filed any other document in these proceedings.
[2]
Background
Given the narrow scope of this application, I do not propose to detail all of the material that has been put before me in Mr Victorsen's affidavit. It is sufficient, in my view, to record what follows.
On 14 July 2023, Mr Ross Johnson commenced proceedings in the DDT alleging he contracted mesothelioma as a result of inhaling fibres of asbestos cement and other asbestos building materials manufactured and supplied by the plaintiff while carrying out renovation work to his home in the suburb of Gailes, Queensland, during the period from the late 1970s to early 1980s. On 5 August 2023, Mr Johnson died from his mesothelioma and Mrs Johnson was subsequently substituted as the plaintiff in the DDT proceedings as his legal personal representative. The statement of claim was amended to give effect to that change on 11 December 2023. There is nothing in the amended statement of claim which seeks relief under Queensland legislation, nor does it add or substitute a new cause of action or claim for relief.
The crux of the plaintiff's application is that the Supreme Court of Queensland is the more appropriate or convenient forum, and that it is in the interests of justice that the proceedings be transferred because Mr Johnson's alleged exposure to asbestos fibres took place entirely in Queensland. In this respect, it is submitted that the applicable law of the alleged tort underpinning the DDT proceedings is the law of Queensland. It is also said that the parties have a closer or a more substantive connection with Queensland: Mr Johnson resided and died in Queensland; Mrs Johnson continues to reside in Queensland; Mr Johnson's treating physicians all practised in Queensland; and for what it is worth, the parties' respective solicitor practises in Queensland.
[3]
Applicable principles
Section 8 of the Act provides:
(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 that Supreme Court.
(2) Where an order is made under subsection (1) in relation to a proceeding, the Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court.
I am satisfied that the DDT proceedings, being a proceeding pending in a tribunal established by the law of New South Wales, should be removed into this Court for consideration as to whether they should be further transferred to the Supreme Court of Queensland. Accordingly, I accede to the first prayer for relief contained in the summons.
The substantive matter for me to decide then is, by reference to s 5(2)(b)(iii) of the Act, whether it is in the "interests of justice" to order the transfer of the proceedings to the Supreme Court of Queensland.
Section 5(2)(b)(iii) of the Act reads:
(2) Where -
(b) it appears to the first court that -
(ii) having regard to -
(C) the interests of justice,
it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or
(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 (my emphasis);
the first court shall transfer the relevant proceeding to that other Supreme Court.
The High Court of Australia's decision in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 established the principles as to what matters should be taken into account when deciding what the 'interests of justice' require. These principles were helpfully summarised by my colleague Lonergan J in Pilbara Ports Authority v Ashton (2019) NSWSC 1488 (at [12]). I will set them out so far as they are relevant to the case at hand:
"The relevant principles to be drawn from the cases are accurately and helpfully set out in [15] of the plaintiff's written submissions. They are:
[…]
(c) The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424 [22] (per Gleeson CJ, McHugh and Heydon JJ).
[…]
(e) The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at 419-20 [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski [2007] NSWSC 440 at 411 [69].
(f) Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at 422-3 [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ).
(g) In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear: Schultz at 423 [19] (per Gleeson CJ, McHugh and Heydon JJ).
(h) Significant weight will, as a general rule, be given to the place of the tort and, in personal injury matters, the place where the parties live: Ewin v BHP [2005] VSC 4 at [33]. Where these coincide, that will ordinarily resolve the question of the more appropriate forum, although other factors may still need to be given careful consideration to determine in which court it is in the interests of justice that the proceedings be heard: James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 361 [7].
(i) It is also relevant if there is a coincidence of the law of the forum (lex fori) and the law of the place where the tort was committed (lex loci delicti) and this will avoid debate concerning substantive and procedural law: Schultz at 444 [99] (per Gummow J)."
I was initially concerned about the transfer of these proceedings to the Supreme Court of Queensland, bearing in mind the difficult questions that product liability cases often present for the purpose of identifying the proper or applicable law of the tort, and the more convenient forum, in cases involving the manufacture of products in one law area and the distribution and use of those products in another. In the absence of any evidence before me regarding the place of manufacture of the asbestos products used by Mr Johnson, I had reservations about the plaintiff's submission that the applicable law underpinning the DDT proceedings is the law of Queensland. It did not necessarily seem obvious that this was so, having regard to the complexities to which I have referred.
Having said that, however, and following the discussions with Mr Hart, I am persuaded that the correct approach is to adopt the substantive place of the tort rule as explained by Spigelman CJ (Santow and McColl JJA agreeing) in Amaca Pty Ltd v Frost (2006) 67 NSWLR 635; [2006] NSWCA 173 (at 645):
"…The admitted breaches were breaches of duty owed to a person in New Zealand. The element of causation occurred in New Zealand. In my opinion as a matter of substance, the place where 'the cause of action arose' was where the respondent was exposed to that risk, that is, New Zealand. Until that happened there was no 'cause for complaint'. It was at that point that earlier conduct 'assumed significance'." (Original emphasis.)
In coming to that conclusion, the Chief Justice also referred to the consideration that the case there - very much like this case - is not one of negligent manufacture or of a defective product. Rather, the defendant's case is that the product was inherently toxic, could only be safely used by the adoption of special precautions and Mr Johnson was not apprised of those special precautions at the point of sale.
In this respect then, wherever the asbestos products used by Mr Johnson were manufactured, they were intended to be distributed in Queensland and Mr Johnson - to whom the duty of care was owed - resided in Queensland and used the products there. I am satisfied as a matter of substance, that the place where the 'cause of action' arose is where Mr Johnson was exposed to the risk, following the supply of the products to him in Queensland. It follows, it seems to me, that the law of Queensland is the applicable law of the tort.
I did raise with Mr Hart the question of whether there is any procedural disadvantage to Mrs Johnson if the case is to continue in the Supreme Court of Queensland. I do not criticise him by saying he did not have any instructions and was unable to make a submission or give me any assurance in that regard. I wish to make it clear that I am proceeding on the basis that had there been such a disadvantage, first, that Mr Victorsen would have drawn it to my attention; secondly, Mrs Johnson's solicitors would have been aware of it and drawn it to my attention; and thirdly, given that the jurisdiction of this Court is being cross-vested to the Supreme Court of Queensland, the effect of the legislation is such that any available procedural bar, not available in NSW, cannot, and will not, be raised against Mrs Johnson.
In these circumstances, having regard to Mrs Johnson's consent and the substantive connecting factors with Queensland that I have referred to at [5] above, I am satisfied that the Supreme Court of Queensland is the more appropriate forum for the determination of these proceedings, and that the interests of justice require the transfer. I record that this being so, my power to transfer the proceedings is not discretionary but mandatory (Schultz at 434-5 per Gummow J).
I make the following orders:
1. Under s 8 of the Jurisdiction of Courts Cross-vesting Act 1987 (NSW) remove proceedings number 2023/224345 from the Dust Diseases Tribunal of New South Wales into the Common Law Division of the Supreme Court of New South Wales.
2. Under s 5(2) of the said Act, transfer the proceedings to the Supreme Court of Queensland.
3. No order as to costs with the intent of each party to bear its or her own costs of the proceedings in this Court.
4. The costs of the proceedings before the Dust Diseases Tribunal of New South Wales are costs in the cause.
[4]
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Decision last updated: 06 June 2024
Parties
Applicant/Plaintiff:
Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd)
Respondent/Defendant:
Trena Robin Johnson
Legislation Cited (2)
Jurisdiction of Courts Cross-vesting Act 1987(NSW)