BHP Billiton Limited v Susan Louise Stephens

(a) The law governing the relevant transaction or the occurrence of the "wrong" sued on 28Mr Stephens' work history in relation to where in the course of each period of employment he was exposed to and inhaled asbestos dust and fibre from insulation materials containing asbestos is as follows: (a) Between about 1953 and about 1959, the deceased was employed by BHP as an apprentice boilermaker and as a boilermaker at BHP's premises at Whyalla in South Australia. (b) Between 1959 and 1960, the deceased alleged that he was employed by the predecessor of RESI at the Port Augusta and Playford power stations in South Australia. (c) Between 1960 and 1973, the deceased alleged that he worked for several periods at the Munmorah, Vales Point and Wallerawang power stations in New South Wales. He alleges that Delta Electricity is the successor of the occupier of those power stations. (d) Between 1967 and 1973, the deceased alleged that he had worked for several periods at the Liddell power station in New South Wales. He alleges that Macquarie Generation is the successor of the occupier of that power station. (e) Between 1967 and 1973, the deceased alleged that he had been employed by a company then known as ICAL to perform work at the Lake Munmorah, Liddell and Wallerawang power stations in NSW. The deceased alleged that Power technologies was the successor in title to ICAL. Senior Counsel for BHP submitted that i n the circumstances, the fact that the bulk of the deceased's exposure to asbestos may have occurred in New South Wales should carry no weight and that the issues raised by the parties overwhelmingly involve the calling of lay and expert witnesses who reside in South Australia. In my view, the length of the periods of exposure within each jurisdiction may be factors to be taken into account. 29There are two series of torts, one series in South Australia and one series in New South Wales. Between 1953 and 1960, the torts are alleged to have been committed by BHP and RESI occurred in South Australia. Between 1960 and 1973, the torts alleged to have been committed by Delta Electricity, Macquarie Generation and Power Technologies occurred in New South Wales. As such, all the relevant torts alleged consisted of multiple exposures occurring on a reasonably continuous basis throughout the relevant years. Approached on a time basis alone, the torts committed in South Australia were committed over a period of about seven years and the torts committed in New South Wales were committed over a period of about 13 years. Mr Stephens was exposed to asbestos in New South Wales for a longer period of time.

(b) The place where the parties respectively reside or carry on business. 30Mr Stephens resided with his wife in South Australia. Mrs Stephens continues to reside in South Australia. 31BHP is incorporated in Victoria, and carries out business in all States of Australia, including South Australia and New South Wales. RESI is incorporated in South Australia. 32However, Delta Electricity, Macquarie Generation and Power Technologies are incorporated in New South Wales, and, insofar as Delta Electricity and Macquarie Generation are concerned, their business operations are carried out in New South Wales.

(c) The specialisation and expertise of the Dust Diseases Courts and Tribunals 33As discussed, the High Court in BHP Billiton Ltd v Schultz made it clear and I accept that in deciding which court is the more appropriate, the plaintiff's choice of forum is not a relevant factor to be taken into account. It is the capacity of the tribunal or court to deal expeditiously with cases has always and rightly been regarded as in the interests of justice. 34For many years New South Wales has had a specialist Dust Diseases Tribunal. Since 2006 (after Barry and Schultz ), South Australia has introduced a specialist list in the District Court. The Dust Diseases Act 2005 (SA) came into effect in 2006. Sections 5 and 6 of the South Australian Dust Diseases Act allow for all dust diseases actions to be heard before the District Court of South Australia has recently changed in South Australia. Cases are now to be heard by Industrial Commission Judges in South Australia. Counsel for Mrs Stephens submitted that it is too early to tell whether past delays are likely to be alleviated by this new procedure. The District Court of South Australia introduced a Dust Diseases List managed in accordance with Practice Direction 4.5 of the District Court Civil Rules. Practice Direction 4.5 allows dust diseases actions to be classified as either ordinary cases or urgent cases. The intention of the introduction of both the Act and the dust diseases list is, stated in section 4 of the Act "to ensure that residents of the State who claim rights of action for, or in relation to, dust diseases have access to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind." Practice Direction 4.5 defines ordinary cases and urgent cases and sets up a procedure to expedite urgent matters: 35On 18 November 2010, the South Australian District Court issued a practice note, which relevantly reads: "From 31 January 2011 proceedings in the Dust Disease List of the District Court will be managed through the interlocutory process and heard by judges located at the Industrial relations Court, ... Senior Judge Jennings will be the judge supervising that list. This arrangement will help the court in meeting the need for dust disease actions to be dealt with expeditiously, especially in cases where an urgent hearing is required. 36Hence, since Schultz, South Australia has a specialist Dust Diseases List in the District Court. A Senior Judge manages the case management of that list. 37New South Wales has a specialist tribunal and South Australia has a specialist list in the District Court that is case managed by a Senior Judge.

(d) The procedural and evidentiary advantages of one court as against the other. 38The Court of Appeal in James Hardie v Barry considered the special procedural powers of the DDT. Mason P in James Hardie pointed out that these were not merely forensic advantages to one party that represented a corresponding disadvantage to the other party, but they were factors relevant to a decision under s 5 of the Jurisdiction of Courts (Cross-vesting) Act , because the special procedural powers have the capacity to assist both plaintiffs and defendants in the efficient and economical resolution of disputes, and therefore serve the public interest. Mason P stated at [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 Maritime Corp v Cansulex Ltd [1987] AC 460 at 482 ff). 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." 39I shall consider both procedural and substantive powers of both the DDT and the Court in South Australia.

Limitation considerations 40Mrs Stephens submitted that if the proceedings are cross-vested to South Australia, she will be deprived of the benefit of this section, insofar as it affects her claims for damages against the Delta Electricity, Macquarie Generation, Power Technologies and she may be required to obtain from a South Australian court an appropriate order under the New South Wales Limitation Act 1969 before she can recover damages on behalf of the estate against those defendants. According to Mrs Stephens' Senior Counsel that is because the making of such an order is discretionary, Mrs Stephens will suffer an irreversible prejudice if, in the event that the proceedings are cross-vested, a South Australian court does not extend the limitation period under the New South Wales legislation. BHP submitted that this submission is without merit. 41Section 12A of the DDT Act reads: "12A No limitation period (1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time. (2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions. (3) ..." 42In Schulz Callinan J, stated (at 490) , "It must now be accepted following John Pfeiffer that s 12A of the Tribunal Act [the DDT Act ] is a substantive provision. 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." 43The limitation provisions of these Acts are substantive provisions. That means that the South Australian Limitation Act 1936 will apply to the South Australian torts and s 12A DDT Act will apply to the New South Wales torts. This factor is neutral.

Use of evidence from other proceedings 44BHP submitted that contrary to Mrs Stephens' suggestion that the DDT's special procedures are preferable, if the proceedings were to continue in the DDT, section 25(3) of the DDT Act might be available to Mrs Stephens. Section 25(3) states: "25 Evidence in proceedings before the Tribunal ... (3) 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." 45BHP submitted that if the proceedings were to continue in the DDT, s 25B of the DDT Act would not be available for the claims arising out of alleged South Australian torts. Section 25B (1) states: "Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties." 46Senior Counsel for BHP submitted that Mrs Stephens has not identified any section 25B finding of the DDT upon which she wishes to rely so as to prove her claim, but neither has BHP. 47In BHP Billiton v Schultz Callinan J, speaking of various provisions of the Act, said at [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 the party evidence and findings which it 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." 48If the proceedings were to be transferred to South Australia, s 8(3)(4) of the Dust Diseases Act (SA) would be available to the parties in relation to the South Australian torts. Section 8(3) and (4) read: "(3) The following rules apply in a dust disease action: (a) the Court may admit evidence admitted in an earlier dust disease action against the same defendant (including in a dust disease action brought in a court of the Commonwealth or another State or Territory) (4) If - (a) a finding of fact has been made in a dust disease action by a court of this State, the Commonwealth or another State or Territory; and (b) the finding is, in the Court's opinion, of relevance to a dust disease action before the court, the Court may admit the finding into evidence and indicate to the parties that it proposes to make a corresponding finding in the case presently before the Court unless the party who would be adversely affected satisfies the Court that such a finding is inappropriate to the circumstances of the present case." 49If the proceedings were to be transferred to South Australia, section 8(3)(a) of the Dust Diseases Tribunal Act (SA) would be available, which is wider than the New South Wales "equivalent", because it permits evidence in earlier dust diseases actions brought in any court of the Commonwealth, State or Territories, although it requires that the evidence be "against the same defendant ." BHP submitted that application of the South Australian provision would mean Mrs Stephens has available to her evidence from other proceedings given against BHP in the Tribunal. However, Mrs Stephens does not propose to rely upon any previous finding of any court. 50It would seem that like ss 25 and 25B of the New South Wales DDT Act , s 8(3)(4) of the Dust Diseases Tribunal Act (SA) is also substantive. The only conclusion I can draw is that each jurisdiction has beneficial provisions regarding evidentiary matters. These provisions can be beneficial or detrimental to all parties. If these provisions are substantive, then they will be applied regardless of whether the proceedings are heard in New South Wales or South Australia.

Claims resolution processes (CRP) 51The DDT has a claims resolution procedure that requires early exchange of information in asbestos diseases claims and negotiation between parties and compulsory mediation. The use of Contributions Assessors and Mediators to ensure speedy resolution of claims is encouraged. The DDT timetable for claims resolution lists as a guide for non-malignant matters that the last date for completion of mediation should be +90 days after the date of service of the statement of particulars on the last of the original defendants . If the defendant's claim for damages were to be settled at mediation there would be obvious costs savings for both parties. The DDT has a compulsory streamlined claims resolution procedure to deal with his claim. A Contributions Assessment Determination on the question of appointment had been listed for 26 May 2011. I have referred to it in more detail under the next heading. 52While the proceedings remain in the Dust Diseases Tribunal, a Contributions Assessment Determination (CAD) on the question of apportionment was due on 26 May 2011 (now passed). Notification from the Tribunal was as follows: (1)It appears that the deceased's alleged condition of asbestosis must be treated as divisible: see clause 5(8) of the Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007. (2)Accordingly, there can be no contribution claims between the Tribunal defendants within the meaning of section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (with the exception of claims as between Power Technologies and the successors to the Electricity Commission of New South Wales). (3)Nevertheless, under the CRP, a CAD will be made, conclusively binding on the defendants in the Tribunal, for the purpose of payment of Mrs Stephens' damages and costs. This applies whether the claim of Mrs Stephens is resolved at mediation, or determined subsequently by the Tribunal: see clause 52(1) of the Dust Diseases Tribunal Regulation 2007. 53But so does the South Australian Court have resolution procedures. Section 33 Rule (2) Supreme Court Rules 2006 (SA) provides that a plaintiff must 90 days before commencing an action make to the defendant an offer to settle their claim. Rule 33 (4) then stipulates that the defendant must within 60 days after receipt of the notice, respond by either accepting the plaintiff's offer, making a counter offer or stating that liability is denied on the grounds upon which it is denied. 54Both courts have procedures which assist both parties, such as claims resolution procedures. The evidence and the Limitation Act provisions will be applied regardless of where the proceedings are heard.

Appeal mechanisms 55BHP submitted that the effect of section 32 of the DDT Act upon it and RESI is highly prejudicial because any (non-appellable) finding of fact against BHP or RESI can then be used against them in subsequent proceedings in South Australia pursuant to section 8(4) and perhaps section 9(2) of the Dust Diseases Act (SA). The views in Schultz relating to section 32 of the DDT Act include that it is advantageous to all parties not to be subject to the fetters imposed by section 32 (at [99]); further, that to take away proper rights of appeal is "a serious and substantive matter" (at [247]). 56Mr Anderson, solicitor for BHP, stated that Part 4 of the Dust Diseases Tribunal Regulation 2007 commonly referred to as the claims resolution process ("CRP") are substantive in effect and invalid insofar as it attempts to bind or apply to BHP. Mrs Stephenson suggests that, rather, clause 17 of the 2007 Regulation provides that the provisions of the regulation dealing with the CRP form part of the procedural law of the State of New South Wales the purposes of the determination of any claim. Accordingly, the claim against the plaintiff is subject to the CRP if the proceedings remain in NSW. [aff: 8/2/11 at [16]] 57Mrs Stephens submitted that the assertion that no satisfactory mechanism exists whereby the BHP can challenge a determination by a contributions assessor is not supported by an examination of the 2007 Regulation, and relevant authorities. In Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107, Sackville AJA (with whom Allsop P and Beazley AJA concurred) stated at [94]: "It will be seen that, although an apportionment determination cannot be challenged in any proceedings, it is conclusively binding on the defendants (including cross-defendants) only for the limited purposes specified in cl 44(1). This is consistent with the object of the scheme identified in Wallaby Grip, namely to prevent the final determination of the plaintiff's claim being delayed by contribution disputes and, to this end, to ensure early provisional resolution of cross-claims. It is significant, in my view, that cl 44(1) says nothing about an apportionment determination being conclusively binding or, indeed, having any effect at all, on the final resolution of a claim for contribution by any defendant or cross-defendant against another defendant or cross-defendant. So far as cl 44(1) is concerned, an apportionment determination has no effect on the principles that govern the final determination of a claim for contribution among defendants or cross-defendants." Later, His Honour said at [102]: "If a defendant/cross-claimant, having obtained an order against the cross-defendant enforcing the apportionment determination, shows no inclination to proceed with its cross-claim, there may be a question as to whether the Tribunal can force the defendant, against its will, to pursue its cross-claim to a hearing on the merits. But the Tribunal has ample powers under the CP Act to ensure that the cross-claim is finalised one way or another. Moreover, this can be done without undue delay and without prejudicing the position of a cross-defendant who denies the entitlement of the defendant/cross-claimant to retain the moneys paid to it: see CP Act , ss 56(1), (2), (3), 57(1), (2), 59, 61; UCPR Pt 2 r 2.1 (power to give directions), Pt 12, r 12.7 (want of prosecution)." 58Mrs Stephens submitted that in these circumstances, there is no basis for the assertion that no satisfactory procedure exists whereby the BHP can challenge any contribution assessment made, were the proceedings to remain in New South Wales. 59BHP submitted that even if the Tribunal finds BHP not liable upon a final determination of the proceedings, or liable for a lesser percentage of Mrs Stephens' damages and costs than imposed by the CAD, BHP must still pay those damages and costs in accordance with the CAD. The CAD is "conclusively binding" for that purpose: clause 52(1) of the Regulation. This is reinforced by clause 4(5) of the Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007 . 60In the circumstances, BHP submitted that because there cannot be any cross-claims against BHP, BHP could not put the other Defendants in the Tribunal proceedings to proof of any sort . It is likely that BHP would have to file fresh proceedings against the Tribunal Defendants seeking restitution of moneys paid by compulsion of law. According to BHP the CRP processes are arguably substantive in effect; its imposition, by the New South Wales legislature, upon the determination non-New South Wales torts, could raise arguments arising under section 109 of the Commonwealth Constitution. This seems most unlikely. 61To the extent that the plaintiff's damages are divisible, as BHP concedes, there is a remedy available to recover moneys paid if it is ultimately found not liable.

Exposure and foreseeability 62So far as the New South Wales defendants are concerned, the deceased's exposure to asbestos is "not admitted" rather than denied. The New South Wales defendants have conceded reasonable foreseeability but they allege that sufficient precautions were taken and otherwise deny breach of duty of care. However, exposure is denied by RESI and not admitted by BHP. Both RESI and BHP have put in issue the level of the deceased's exposure. BHP also denies that the deceased's likely level of exposure created a risk of injury that ought to have been foreseen by BHP. Counsel for BHP says that the resolution of this issue of reasonable foreseeability will require some investigation as to what measures were reasonably available, in South Australia, at the time of the deceased's alleged exposure (between 1953 and 1960) to eliminate or reduce the risk of injury to him. I accept that BHP's witnesses on this issue may be located in South Australia, although no such witnesses have been specified. 63Proof of the deceased's statement will be by Mrs Stephens. The plaintiff's evidence on foreseeability will be from a Sydney expert and from BHP documents.

Comparative cost 64If Mrs Stephens' claim for damages were to be settled at mediation there would be obvious costs savings for both parties. 65Counsel for Mrs Stephens submitted that BHP has not lead any evidence to show that any additional cost would be incurred in having the matter transferred to South Australia. Mrs Stephens has led evidence that there will be significant costs savings if the proceedings were to be determined by the DDT such as videolink.

Videolink 66The DDT has a video courtroom where evidence can be taken from witnesses in remote locations, within Australia or overseas. The equipment in the courtroom can be linked to similar video equipment at a remote site, such as another courtroom or any other video facility. It should be noted that the use of the Tribunal's videolink facilities is restricted to matters currently before the Tribunal and a party to proceedings in the Tribunal who wishes to make use of the video courtroom must make application by way of request to a Judge at a directions hearing or by approaching the Registrar in Chambers. Furthermore, the DDT Advice to Practitioners 1 of 2003 - Guidelines for the Use of Technology in Litigation states in relation to technology for the hearing, "Parties to any civil proceedings are encouraged where appropriate to consider the use of technology including an electronic Court book, at trial."

Delay 67It is the opinion of Ms Wade, Mrs Stephens' New South Wales solicitor, that the Dust Diseases Tribunal of NSW provides the most expeditious and cost effective procedure for dealing with Mrs Stephens' claim against BHP. She explained that the Dust Diseases Tribunal has procedure for the admission of evidence and reliance by parties upon previous determinations of matters of a general nature that she suggests significantly reduce the length and costs of trials. Ms Wade further states that in her experience the administering of interrogatories and provision of verified discovery by parties are matters that are routinely consented to and/or ordered without formal application by the parties. This is not so in the District Court of South Australia where parties are required to file a Motion (with affidavits in support) for leave to administer interrogatories and seek discovery of documents. According to Ms Wade the DDT procedure for interrogatories is more cost effective. 68It is Mr Windsor's (a solicitor and barrister practising in South Australia) experience that despite the introduction of the South Australian Dust Diseases Act 2005 and the dust diseases list, litigation for dust diseases actions in South Australia is subject to significant delays, even in cases of attracting urgent classification. In particular, it is his experience that delays of several months regularly exist between the convening of a listings conference and trial date. 69It is suggested by the solicitor acting for Mrs Stephens that if the proceedings remain in New South Wales and if they do not settle during compulsory mediation, it is probable that the proceedings will be listed for hearing at an early date in the Dust Diseases Tribunal. Ms Wade believes that if the plaintiff had not instituted these proceedings to cross-vest the matter to the Supreme Court of South Australia, the proceedings brought by the defendant claiming damages from the plaintiff would probably have already been concluded. Mr Matthew Windsor agreed with Ms Wade's belief that if Mrs Stephens' proceedings remained in the DDT the proceedings would probably have been concluded. These proceedings had been listed for a Contributions Assessment Determination in May 2011. 70Overall, I accept that it is most likely that these proceedings would be finalised earlier if they remain in the DDT.

Conclusion 71Each case depends upon its own particular facts and circumstances and cross-vesting applications are not directed towards identifying advantages to individual parties but to the interests of justice as a whole. 72There are real and substantial connecting factors with both New South Wales and South Australia. There are two separate series of torts that occurred in New South Wales and South Australia that allegedly resulted in injuries being sustained by the defendant in New South Wales and South Australia. So far as the torts that occurred in South Australia are concerned, the substantive law of South Australia is applicable. Likewise, so far as the torts in New South Wales are concerned, the substantive law of New South Wales is applicable. Whether the proceedings are heard in New South Wales or South Australia, the substantive law to be applied remains the same. The court hearing this matter will be required to apply both the New South Wales and South Australian substantive legislation. 73Mrs Stephens claims that Mr Stephens was exposed to asbestos both in New South Wales and South Australia. The torts committed in South Australia were committed over a period of about seven years and the torts committed in New South Wales were committed over a period of about 13 years. Mr Stephens was exposed to asbestos in New South Wales for a longer period of time. 74Most of the parties carry on business in the State of New South Wales. The plaintiff resides in South Australia and RESI is incorporated in South Australia. BHP, although incorporated in Victoria, carries out business in both South Australia and New South Wales. As there are two places where the torts occurred and the places of residences of the parties do not coincide these factors in themselves are not determinative of the issue of "appropriate court". 75There are procedural and substantive provisions that are favourable to all parties. There are none that are seriously prejudicial to one particular party. 76There may be witnesses called to give evidence from New South Wales. Likewise there are doctors and witnesses located in South Australia who may be called to give evidence. Mrs Stephens will have to travel to New South Wales if the matter does not settle at mediation. 77There are early resolution processes in both the DDT and the South Australian court. The use of technology in the DDT means that there will be minimal increase in costs if the proceedings remain in the DDT as South Australian witnesses do not need to travel to New South Wales. 78If these proceedings do not settle and proceed to trial, it will be finalised earlier in the DDT than in the South Australian Court. 79I am not persuaded that, in the interests of justice, the South Australian court is more appropriate. Following the reasoning of Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz at paragraphs [14] to [16], on balance the parties' conflicting interests are of such a kind that I am not persuaded that in the interests of justice I should favour one Court over another. Accordingly, I dismiss the summons. 80Costs are discretionary. Usually costs follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

The Court orders:

1. Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987, the plaintiff's application to transfer proceedings No 187 of 2010 in the Dust Diseases Tribunal of NSW to the Supreme Court of South Australia is dismissed.
2. The plaintiff is to pay the defendant's costs as agreed or assessed. 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. Decision last updated: 08 July 2011