B I (Contracting) Pty Limited v Haylock

Supreme Court of NSW|2005-06-22|Before: Bell J

CITATION : B I (Contracting) Pty Limited v Haylock [2005] NSWSC 592

DECISION : 1. Pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act) proceedings number 103 of 2005 pending in the Dust Diseases Tribunal of New South Wales (the DDT proceedings) brought by Melissa Haylock against Amaca Pty Limited, B I (Contracting) Pty Limited and St George Bank Limited be removed into the Common Law Division of this Court; 2. Pursuant to s 5(2)(b)(iii) of the Act the DDT proceedings be transferred to the Supreme Court of South Australia; 3. Dimiss the notice of motion filed on 10 June 2005.

Dust Diseases Tribunal Act 1989 Jurisdiction of Courts (Cross-Vesting) Act 1987 LEGISLATION CITED : Limitation of Actions Act 1936 (SA) Supreme Court Act 1970 Supreme Court Rules 1970

BHP Billiton Ltd v Schultz [2004] HCA 61; 79 ALJR 348 BHP Billiton Ltd v Utting [2005] NSWSC 260 Ewins v BHP Billiton Limited [2005] VSC 4 CASES CITED : ICI Australia Operations v WorkCover (NSW) [2004] NSWCA 55 James Hardie and Co Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Regit (No. 2) Pty Limited v Bendyk [2005] NSWSC 450

B I (Contracting) Pty Limited (Plaintiff) Melissa Haylock (1st Defendant) PARTIES : Amaca Pty Limited (2nd Defendant) St George Bank Limited (3rd Defendant)

TGR Parker / R E Steele (Plaintiff) J Gleeson SC / A Naylor (1st Defendant) COUNSEL : J Harris (3rd Defendant)

Makinson & d'Apice (Plaintiff) Slater & Gordon (1st Defendant) SOLICITORS : Phillips Fox (2nd Defendant) Hunt & Hunt (3rd Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 BELL J: By its summons the plaintiff, B I (Contracting) Pty Limited (BIC) claims orders removing proceedings number 10329 of 2005 pending in the Dust Diseases Tribunal of New South Wales (the DDT proceedings) brought by the first defendant, Melissa Haylock, against Amaca Pty Limited (Amaca) (the first defendant in the DDT proceedings) and the plaintiff (the second defendant in the DDT proceedings) and St George Bank Limited (St George) (the third defendant in those proceedings and in the present proceedings) into the Common Law Division of this Court. The power so to do is conferred by s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act). BIC seeks an order under s 5(2)(b)(iii) of the Act that the DDT proceedings, when and if removed into this Court, be transferred to the Supreme Court of South Australia. 2 BIC's summons was filed on 5 May 2005. Subsequently, the plaintiff was given leave to file in court a notice of motion that was returnable on 10 June 2005 by which it claimed orders pursuant to s 51(5)(a) of the Supreme Court Act 1970 and Pt 12 r 2(1)(b) of the Supreme Court Rules 1970 that the Court state certain questions for determination by the Court of Appeal and that the proceedings be thereby removed into the Court of Appeal. The questions shortly stated are whether an order should be made pursuant to s 8 of the Act and whether an order should be made pursuant to s 5(2)(b)(iii) of the Act transferring the proceedings to the Supreme Court of South Australia. In the way the matter was developed BIC did not move for the orders claimed in the motion. 3 The DDT proceedings were commenced by statement of claim filed on 5 May 2005. Ms Haylock is a forty-one year old married woman who is the mother of three children. She is suffering from mesothelioma. It is her case that her condition is the result of exposure to asbestos. 4 The DDT proceedings involve claims in negligence brought against Amaca as the successor to James Hardie and Coy Pty Limited, a corporation that was engaged in the manufacture of cement building products containing asbestos. 5 Ms Haylock alleges that she was exposed to asbestos in the following periods: (a) Between September 1967 to about 1972 on occasions when she was in the vicinity of her father when he was renovating his home and some shops located in Magill Road, St Morris, South Australia using cement building products manufactured by James Hardie Coy Pty Limited. (b) From about 1963 to about 1979 when her father was employed as a carpenter and ceiling fixer at various building sites in and around the Adelaide metropolitan area, BIC is alleged to have applied asbestos containing limpet spray while he was present. He is said to have handled the asbestos containing the limpet spray. As a consequence of these matters his skin, hair and clothing is alleged to have been contaminated with asbestos dust and fibre and, as a result Ms Haylock is alleged to have been exposed to, and inhaled, asbestos dust and fibres. (c) During 1983 when employed as a clerk by the Bank of South Australia (St George is sued as the successor to the Bank of South Australia) as the result of renovations which involved the removal of ceiling tiles, she is alleged to have inhaled asbestos dust and fibre that was liberated from the ceiling space. BIC is alleged to have applied the asbestos-containing insulation that was disturbed during the renovations.

6 Ms Haylock seeks an extension of time within which to institute the action pursuant to s 48 of the Limitation of Actions Act 1936 (SA) should such relief be deemed necessary. Her cause of action against St George is also pleaded in contract. Nothing turns on this consideration. 7 Section 8 of the Act makes provision where a proceeding is pending in a Tribunal established by or under an Act and it appears to this Court that an order should be made under s (1)(b)(ii) in relation to the proceedings so that consideration can be given to whether it should be transferred to another court for the court to make an order removing the proceeding to the Supreme Court. Where an order is made under subs (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. 8 Section 5(2)(b)(iii) makes provision where a proceeding is pending in the Supreme Court and it appears to the Court that: "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, this Court shall transfer the proceeding to that other Supreme Court". 9 In the event that it appears to be otherwise in the interests of justice that the proceedings be transferred a duty is imposed by the statute on the court to transfer the proceedings: BHP Billiton Ltd v Schultz [2004] HCA 61; 79 ALJR 348 per Gleeson CJ, McHugh and Heydon JJ at 352, [14], per Gummow J at 360, [63], Callinan J at 388, [222]. 10 In James Hardie & Co Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357, a summons claiming orders under the Act having the effect of cross-vesting proceedings pending in the Dust Diseases Tribunal (the Tribunal) to the Supreme Court of Queensland was removed to the Court of Appeal. In that case Spigelman CJ observed at 361, [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". 11 The torts are each alleged to have occurred in South Australia. Ms Haylock is resident in South Australia. BIC was incorporated in South Australia on 8 July 1960, although its registered office is now in New South Wales. BIC no longer trades and has not done so for twenty years. It has only ever conducted business South Australia. Amaca is a corporation whose registered office is in New South Wales. It did not appear in these proceedings. It consents to the making of the orders that are sought. St George is a corporation with its registered office in New South Wales. As I have noted, it is sued as successor to the liabilities of the Bank of South Australia. It supports the making of an order that the DDT proceedings be transferred to the Supreme Court of South Australia and submits that its defence raises issues including the construction of Acts and Regulations of South Australia that deal with the entities that succeeded the State Bank of South Australia.

12 Three expert reports are in evidence and contain opinions as to Ms Haylock's prognosis. Dr Price, a medical oncologist with the Central Northern Adelaide Health Service, states in a report dated 14 March 2005, that she has inoperable locally advanced mesothelioma. The median survival for patients with this form of mesothelioma ranges between eight and eleven months in most clinical trial series. Taking this into account he is of the view that it is likely that within the next six months (by mid-September 2005) she will require systemic chemotherapy. This may add six to eight weeks to her median survival. Since the date of Dr Price's report it appears that Ms Haylock has decided against chemotherapy and in favour of palliative care. 13 Dr Greville, a consultant respiratory physician with the Department of Thoracic Medicine at the Royal Adelaide Hospital, saw Ms Haylock on 3 June 2005 and prepared a report that is dated 8 June 2005. In that report he refers to the Dust Diseases Board of New South Wales Occupation Respiratory Health Report of October 2000 which indicates that the median survival from diagnosis is approximately nine months. He observed that it was seven months since Ms Haylock's diagnosis had been established. As at the date of his report he considered her present functional level to be reasonable. Her mesothelioma is of the epithelial type which carries a slightly better prognosis. Overall, in Dr Greville's opinion, Ms Haylock's life expectancy is six months or less (December 2005 at best). 14 Ms Haylock has been seen on behalf of BIC by Dr Antic, a respiratory and sleep physician. Dr Antic is also attached to the Department of Thoracic Medicine at the Royal Adelaide Hospital. He saw Ms Haylock on 15 June 2005. He appears to have had access to the results of the CT Scan of her chest carried out on 9 May and to other materials that permitted him to express the opinion that there had been no significant change in her condition since March 2005. He noted that her symptoms of left pleural effusion had first been detected in June 2004, although there had been chest wall discomfort requiring explanation for three to four years before that. In these circumstances, Dr Antic is of the opinion that her prognosis may extend to twelve months or even longer if the results of scans suggest that the symptoms of chest wall discomfort are related to the mesothelioma. This is because the progress of the disease would be shown to have been slower than usual.

15 Among the other factors that are relevant to the determination of whether it is in the interests of justice that the DDT proceedings be transferred to the Supreme Court of South Australia is the consideration of whether that Court would be able to hear Ms Haylock's claim and deliver judgment within her lifetime. It is also relevant to take into account the cost of the proceedings in the Tribunal by comparison with the cost of proceedings in the Supreme Court of South Australia (in the event that there is a difference that is more than minimal): Schultz per Callinan J at 394 - 395, [257]. 16 Before turning to the evidence touching on the latter considerations it is appropriate to record two concessions made on behalf of Amaca, BIC and St George concerning the conduct of the proceedings should they be transferred to the Supreme Court of South Australia. The first concession concerns interrogatories. I was informed that leave is required before interrogatories may be administered in common law claims for personal injuries in the Supreme Court of South Australia. Leave is not required to interrogate in proceedings before the Tribunal. In the event that the proceedings are transferred to the Supreme Court of South Australia each defendant will consent to the administration of interrogatories. 17 The second concession relates to the benefit of one of the evidentiary provisions of the Dust Diseases Tribunal Act 1989 (the DDT Act). Section 25(3) of the DDT Act allows for historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal to be received as evidence in any other proceedings before the Tribunal whether or not the proceedings are between the same parties. Amaca, BIC and St George are willing to give Ms Haylock the benefit of s 25(3) should the proceedings be transferred to the Supreme Court of South Australia. I enquired of counsel for BIC whether the concession was that the defendants would consent to the tender of evidence falling within the description of that set out in s 25(3) of the DDT Act. He responded (T 3.4-9): "Yes. Obviously subject to matters of relevance and form or the like. But the position is that the Supreme Court of South Australia as the tribunal would be with respect to such material your Honour so that those aspects of the what is said to be advantages of the Tribunal have been addressed in that particular way." 18 It is convenient to refer to one other provision of the DDT Act at this juncture. Section 25B makes provision such that issues of a general nature that have been determined in proceedings before the Tribunal may not be re-litigated or re-argued in other proceedings before the Tribunal without leave. This is so whether or not the proceedings are between the same parties. In deciding whether to grant leave the Tribunal is to have regard to the availability of new evidence, the manner in which the other proceedings were conducted and such other matters as it considers to be relevant. 19 The solicitors acting for Ms Haylock have served on BIC a schedule of findings upon which she proposes to rely pursuant to s 25B. Twenty findings are set out in the schedule as being relevant to the issues of foreseeability of harm and causation. 20 BIC and St George contend that the provisions of s 25B of the DDT Act are substantive in nature and are of no application to Ms Haylock's claim whether it proceeds in the Tribunal or in the Supreme Court of South Australia, since the substantive law to be applied is that of South Australia which is the place of the wrong: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. In BIC's submission the contention that s 25B is substantive in nature is one that is strongly arguable: James Hardie v Barry per Spigelman CJ at 363, [16] and Priestley JA at 386, [123], Schultz per Callinan J at 394, [253]. 21 In the event that s 25B is held to apply to Ms Haylock's claim, BIC will contend that it is invalid upon the constitutional ground that was argued by the appellant in Schultz which argument the High Court did not find it necessary to determine in that case. 22 In the event that s 25B of the Act is held to apply to Ms Haylock's claim and found to be constitutionally valid, BIC submits that there is no basis for finding that its provisions will be successfully invoked in this case. It relies on a number of recent decisions of the Tribunal in which s 25B notices have been set aside. In BIC's submission the findings of fact relied on in the schedule on the issue of foreseeability of harm are not relevant to the claim brought against it in so far as the third period of exposure is concerned. It contends that the findings in the schedule are motherhood statements of no material bearing on the issue of foreseeability of harm raised by this claim, which involves the application of the asbestos-containing insulation at one point of time and its release some time later.

23 The findings set out in the s 25B notice on causation that are in issue are the subject of objection on a different basis. Mr Sinnadurai, the solicitor acting on BIC's behalf, deposes to the practice of the Tribunal being to apply the "Helsinki criteria" when determining questions of causation. The Helsinki criterion for causation of mesothelioma is "substantial" exposure. Mr Sinnadurai says that at low levels of exposure the matter of what constitutes "substantial" remains open. In light of this BIC will contend in a case such as this involving low levels of exposure that the Tribunal cannot determine causation upon the findings in the earlier cases on which Ms Haylock wishes to rely. In the event the Tribunal is against BIC on this aspect of the challenge to the s 25B causation findings it proposes to seek leave to re-argue the findings based upon the publication of an article which post-dates the Helsinki criteria. 24 BIC's stance on the hearing of this application is that of the twenty findings upon which Ms Haylock seeks to rely only one finding is not in issue. Senior counsel for Ms Haylock acknowledges that that the findings set out in the s 25B notice will not make her case but contends that they serve to advance it. I accept that to be the case at least with respect to a number of the findings upon which reliance is placed on the issue of foreseeability of harm.

25 Should Ms Haylock's claim proceed in the Tribunal it is possible that she will have the benefit of at least some of the findings that are the subject of the s 25B notice and that this will serve to shorten the proceedings to some degree. 26 In Schultz both Gummow J (with whose reasons Hayne J agreed) and Callinan J considered the ambiguity with respect to the characterisation of various of the provisions of the DDT Act as either substantive or procedural to be a factor favouring an order for transfer such that the lex fori and the lex loci delicti coincide: per Gummow J at 366, [99] and Callinan J at 392, [242].

27 St George proposes defending Ms Haylock's claim upon the basis that it did not succeed to the liabilities of the entity which employed her in 1983. The question turns on the interpretation of a number of South Australian Acts and Regulations. 28 St George denies that Ms Haylock was exposed to and inhaled asbestos fibres in the course of her employment with the Bank of South Australia. There are witnesses presently residing in South Australia whom St George intends to call to give evidence in relation to this issue. In light of the exposure issue with respect to the third period the solicitor with carriage of the matter on behalf of St George is of the opinion that it may be necessary to undertake a view of the premises.

29 Ms Haylock's solicitor, Mr Fowlie, has lengthy experience in the conduct of asbestos litigation in the Tribunal. In his affidavit that was sworn on 8 June he expressed the opinion that the hearing of Ms Haylock's claim would conclude before the Tribunal within two to three days of commencement. This estimate was the subject of challenge on the basis that it assumed that the findings set out in the s 25B notice would be admitted. Mr Fowlie's estimate did not depend significantly on the outcome of the s 25B notice. It flows from his knowledge of the Tribunal as a specialist court with extensive experience in the field of litigation arising out of exposure to asbestos. It is his opinion that the expertise of the judges in the Tribunal has the practical effect of shortening the hearing of claims; it tends to lead the parties to making concessions and to confining the issues in dispute. I accept this to be the case. 30 In submissions senior counsel for Ms Haylock relied on the observations of McColl JA in ICI Australia Operations v WorkCover (NSW) [2004] NSWCA 55 at [232] in support of the contention that regardless of the application of s 25B a judge of the Tribunal might draw on his or her expertise acquired as a member of a specialised tribunal in arriving at findings on causation. Supplementary written submissions were made by each of the parties on this issue. BIC drew attention to the decision in Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service (1998) 17 NSWCCR 355. The relevant passage is set out in the judgment of McColl JA in ICI Australia Operations at [227]. It is not put by Ms Haylock that the Tribunal might complete an evidentiary gap by reliance upon expertise that is not based upon an accepted body of medical and scientific knowledge.

31 Mr Fowlie deposes to the Tribunal's capacity to move swiftly in order to accommodate the decline in the health of plaintiffs suffering from mesothelioma. It has been his experience that sufferers may deteriorate unexpectedly and rapidly. It is common for judges in the Tribunal to deliver final judgment ex tempore or within a short interval following the completion of evidence. The Tribunal sits on a regular basis in Adelaide and the likelihood is that the evidence of South Australian witnesses can be taken at such a sitting. 32 In the DDT proceedings Amaca, BIC and St George put in issue each of the elements of Ms Haylock's causes of action. It will be necessary for her to lead evidence of her exposure to asbestos dust and fibre during each of the three periods, the foreseeability of the risk of harm associated with each exposure, breach of duty, and causation. Her claim for damages includes a claim for economic loss. With the possible exception of some expert witnesses the likelihood is that all the witnesses are persons resident in South Australia. 33 The DDT proceedings were before the Tribunal for directions on 20 June. The Tribunal stood the matter over for further directions to 28 June. As at 20 June the claim was not ready for hearing. The Part 33 particulars had not been served. Not all the primary documents relied on in support of Ms Haylock's claim for economic loss have been served. It is likely that an expert report on economic loss will be served on her behalf. Interrogatories have not been administered. The third defendant has not given discovery. Mr Fowlie believes that the Part 33 particulars and outstanding primary material can be served before 28 June. It is likely that an accountant's report will be served in support of the economic loss claim. I understood his evidence to be that this too might be served by 28 June. Mr Fowlie proposes to administer interrogatories by the end of this week. Generally the Tribunal would not set a date for hearing before all parties have given discovery. Nonetheless Mr Fowlie considered that the Tribunal may be disposed to do so on his application. It is not necessary to come to a view about this. It is fair to say that a number of steps need to be taken before the matter is ready for hearing, but that I accept these might be attended to in the near future and a hearing date allocated in the Tribunal within a short interval of the determination of this application. 34 Mr Sinnadurai took issue with Mr Fowlie's estimate of two to three days for completion of the hearing in the Tribunal. His estimate is of hearing three to four days. He considered it may take a little longer given that time will be taken up in determining the applicability of s 25B to the claim. Mr Sinnadurai has also had considerable experience in the conduct of proceedings in the Tribunal. If the proceedings remain in the Tribunal making allowance for time to be taken up with submissions concerning the operation of s 25B I think it reasonable to conclude that the claim would nonetheless be determined within four days. This is somewhat in excess of Mr Fowlie's estimate to take into account the uncertainty relating to s 25B and any argument associated with the resolution of that question. It is somewhat less than Mr Sinnadurai's estimate because I consider the evidence to favour the view that the Tribunal would not take long in the resolution of any issue concerning the application of s 25B. 35 BIC acknowledges that the Tribunal is efficient in the conduct of the litigation before it and that it would be able to respond promptly in the event of a deterioration in the plaintiff's condition. BIC accepts that it is reasonable to assume that Ms Haylock's claim will be determined and judgment delivered within her lifetime should the proceedings remain in the Tribunal. It was submitted on BIC's behalf that I would not assume that the proceedings if transferred to the Supreme Court of South Australia would take longer than if determined in the Tribunal. I approach the latter question on the basis that the proceedings are likely to take the time before the Supreme Court of South Australia that a claim such as this one would be expected to take were it being heard in this Court. On the assumption that all the elements of Ms Haylock's cause of action are in issue, (noting in particular the issues of foreseeability and causation with respect to the third period of exposure) and noting her damages claim includes a claim for economic loss, I am of the opinion that the matter would be given an estimate in excess of five days were it listed in this Court. 36 Ms Samolis, a solicitor assisting Mr Sinnadurai on behalf of BIC, deposed to inquiries made by her of Mr Surman, the Deputy Registrar of the Supreme Court of South Australia. Those inquiries disclose that in the event these proceedings were transferred to the Supreme Court of South Australia they would be listed for directions within two weeks of the making of the order. In the event of the need for urgency the initial directions hearing could be arranged within two working days. Cases of ten days or more if they become urgent can be difficult to allocate for hearing. There is no suggested difficulty with short cases estimated to take not more than five days. In the event of urgency the matter is referred to the Chief Justice, who makes every effort to use the resources of the Court to have a case listed for hearing as required. In an appropriate case a judge may take evidence at a hospital or at the home of the plaintiff. Judges may take evidence outside normal court hours. In a case in which there is a rapid deterioration of the plaintiff's health the Court would do whatever it could to take account of the change in circumstances. Such a case would be referred to the Chief Justice and the hearing date moved forward.

37 The matter of Ewins v BHP Billiton Limited [2005] VSC 4 was transferred from the Supreme Court of Victoria to the Supreme Court of South Australia on 12 January 2005. The proceedings were listed for directions before a Master on 4 February and fixed for hearing on 7 March. The estimated length of the hearing was five days. At the time that estimate was given all issues were in dispute. 38 In written submissions on Ms Haylock's behalf it was contended that: "Some care is needed when having regard to what is said by persons in the employ in the Supreme Court of South Australia. They do not make the final decisions. Their evidence is without context of other matters. In particular, it is one thing to believe that the South Australian Supreme Court can handle one expedited matter; it is another if this is but one of a number of matters in which defendants seek transfer and all of which are potentially urgent." (WS 8(h)). 39 I do not accept that submission. The Deputy Registrar of the Supreme Court of South Australia seems to me to be well placed to comment on that Court's practice with respect to the listing of urgent cases. The final decision would seem to be a matter for the Chief Justice. There are fourteen judges available in the Supreme Court of South Australia to whom a matter, such as this one, may be allocated. In the event that the Court has an unusually large number of urgent cases I see no reason to conclude other than that each would be dealt with as an urgent case and accorded priority over cases that are not urgent.

40 In written submission BIC contends that it is unarguable that additional costs would be incurred were the matter to proceed in the Tribunal because of the need for lawyers, parties and witnesses to travel from South Australia to give their evidence or the Tribunal itself to travel to South Australia to take their evidence. I think it likely that the evidence of the South Australian witnesses would be taken by the Tribunal when it is sitting in South Australia. Ms Haylock's legal costs I am told, and accept, will not be affected by whether the proceedings go ahead in the Tribunal or are transferred to the South Australian Court. The scale of costs charged by barristers and solicitors to their own clients in South Australia suggests that the legal costs of the defendants will be lower in the event that the proceedings are transferred to the Supreme Court of South Australia should they retain counsel and solicitors in South Australia. Against this consideration it is necessary to take into account my view that the proceedings before the Supreme Court of South Australia are likely to take longer to determine than if they remain in the Tribunal. I am of the opinion that the relative cost of the proceedings is not a material factor affecting the determination of the interests of justice in this case.

41 In written submissions on behalf of Ms Haylock it was contended that while acknowledging that this application must be judged on its own merits, nonetheless the conclusion that must be reached is the same as that in Barry, BHP Billiton Ltd v Utting [2005] NSWSC 260 and Regit (No. 2) Pty Limited v Bendyk [2005] NSWSC 450. 42 I note that relevant to the determination in Barry was the concession made with respect to the application of s 25B. That is not this case. In Utting, which was decided on 1 April 2005, the respondent's life expectancy was given, as at mid-March, as being of the order of four to six months. In Regit the respondent, Mr Bendyk's, life expectancy as at 7 April 2005, was given as between one and two months subject to a consideration that complications could shorten the prognosis significantly. The matter was heard on 9 May and judgment delivered the following day. Important in each of those cases was a consideration of the exigent circumstances of the respondent. It is a consideration that is to the fore in the present case.

43 In determining where the interest of justice lie on the facts in this case I have regard to the judgment of the High Court in Schultz and in addition to the passages to which I have referred, I note the observations of Gummow J at 366, [99]; Kirby J at 379, [169]; and Callinan J at 395, [259]. Gleeson CJ, McHugh and Heydon JJ in their joint judgment in observing, in the context of an application in a case involving a terminally ill plaintiff, that the interests of justice are not divorced from practical reality referred to the consideration of the ability of the Court to which transfer is sought to deal with the case expeditiously: 352, [15].

44 The judges in the majority in Schultz considered it to be a clear case in which the interests of justice favoured cross-vesting. Each case depends upon an assessment of the various factors in light of its facts. Schultz differed in a number of respects from the present application. Mr Schultz's illness was not terminal. It was accepted by all of the parties in that case that, subject to proof by Mr Schultz of exposure and diagnosis, liability would not be in issue. Any evidentiary advantage available in the Tribunal was not relevant to the determination of the application since the defendants had undertaken to take no objection to the reception of evidence which could be led pursuant to the various provisions of the DDT Act no matter where the proceedings were heard (at 385, [211]). 45 Prominent to the determination of this case is the circumstance that Ms Haylock is terminally ill with a prognosis at best of twelve months and at worst of less than six. In the course of submissions her counsel contended that in mesothelioma cases the interests of justice would necessarily tend to be against orders for transfer given the aggressive nature of the condition. I am not persuaded that is so. In this case, notwithstanding the grim prognosis, it does not seem to me that Ms Haylock's situation is such that the South Australian Court will not be able to deal with her claim expeditiously and deliver judgment within her lifetime.

ORDERS 1. Pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act) proceedings number 103 of 2005 pending in the Dust Diseases Tribunal of New South Wales (the DDT proceedings) brought by Melissa Haylock against Amaca Pty Limited, B I (Contracting) Pty Limited and St George Bank Limited be removed into the Common Law Division of this Court;

Pursuant to s 5(2)(b)(iii) of the Act the DDT proceedings be transferred to the Supreme Court of South Australia; 3. Dismiss the notice of motion filed on 10 June 2005. I will hear the parties on the question of costs.

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.

(1998) 17 NSWCCR 355

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