the evidence
10 Affidavit evidence was filed on behalf of all parties. (Initially, this matter was listed to be heard jointly with another matter, Transadelaide and the State of South Australia v Albert Keith Suridge and Amaca Pty Ltd, no 10800 of 2005. During the course of the hearing the parties in that matter resolved the claim. Nevertheless, in accordance with the understanding of the parties, affidavit evidence that had been filed in Transadelaide was read in the present proceedings.) Some oral evidence was also adduced.
11 The effect of the evidence was essentially as follows. The torts alleged to have been committed by BHP and Brambles were, on Mr Utting's pleadings, committed in SA. Mr Utting lives in SA, and is being treated for his illness in SA. It is likely that the majority of witnesses, both lay and expert, and for all parties, live in SA. BHP has offices in SA (although it also has offices in NSW). Brambles is incorporated in NSW but carries on business and can be sued in SA. If the proceedings are to be heard in the DDT in NSW additional expense will be incurred by way of travel, accommodation, and the transport of documents. However, the DDT has the facility to travel to, and take evidence, interstate.
12 The Supreme Court of SA has the facility to provide an expedited trial, where circumstances so demand. Although a number of cases in which injury as a result of negligent exposure to dust is alleged have been commenced in the Supreme Court of SA, only one has run to a completed hearing. The DDT, by contrast, has over the years, conducted a very large number of cases and has evolved the procedures, to which I have already referred, to facilitate their efficient disposal. These procedures are unique to the DDT.
13 There is, however, no reason to doubt that the Supreme Court of SA can provide an expeditious and efficient hearing. Specific inquiries made of that Court establish that Mr Utting's claim, if transferred to SA, could be brought to a conclusion well within his projected lifespan. The Court has its own procedural rules, which include alternative dispute resolution procedures. Solicitors and barristers experienced in personal injury litigation practise in SA.
14 In general, fees payable to legal practitioners in NSW are higher than those payable to legal practitioners in SA.
15 Mr Utting's legal representatives propose to give notice, pursuant to s25B of the DDT Act, that they will rely on a series of (specified) determinations made by the DDT in previous cases. These findings generally go to issues of foreseeability. Also identified was a very large volume of documentary material upon which Mr Utting's legal representatives propose to rely pursuant to s25(3).
* * *
16 The competing arguments, in the end, appeared to me to reduce to the following. On behalf of BHP it was put that SA is the natural forum. So much was accepted on behalf of Mr Utting. This incorporates the propositions that SA is the place where the tort was committed, the place most convenient to the majority of witnesses, and the home of the substantive law by which the outcome will be determined. In addition, there would be savings in costs because the need to transport witnesses and evidentiary material would be obviated and legal fees would be lower. Further, debates about unresolved questions such as whether s25(3) and s25A of the DDT Act are substantive or procedural laws would be avoided. The limited appeal rights from the DDT are also a consideration, although it is difficult to say with confidence that that factor favours either party: which party receives the benefit of limited appeal rights will not be known until a verdict in favour of one party is delivered. In any event, views may differ about whether the limitation on appeal rights favours a hearing in NSW or SA: finality may, in some eyes, outweigh a comprehensive right of appeal.
17 On behalf of Mr Utting heavy emphasis was placed upon the special procedures of the DDT, and the specialised nature, and therefore experience, of the DDT. These were held to be relevant considerations, and, indeed, determinative, in the judgment of Mason P in Barry. As a consequence, in that case an application to transfer similar proceedings to the Supreme Court of Queensland failed. Various of the judgments in Schultz also acknowledged the importance of these procedures, generally appearing to regard them as favouring the DDT as the tribunal to determine the claim.
18 As the hearing proceeded, it became apparent that a good deal of the focus lay upon these special procedures. One thing that is to be observed about these procedures is that they are applicable only to claims where liability is contested. Where liability is admitted (as it frequently is) s25(3), s25A and s25B have no application. Accordingly, counsel for BHP sought to have an inference drawn that it was unlikely that liability would be in issue. He adduced evidence to the effect that, in the majority of previous cases in which it has been sued, BHP has admitted liability. This was an attempt to nullify the benefits perceived by Mason P in Barry resulting from the existence of these special procedures. I found the submission an unsatisfactory one. I see no reason to draw an inference that BHP will not contest liability, in circumstances where it is open to BHP, at any time, to make such an admission. Mr Utting's proceedings have been on foot since 21 February 2005. I was not given any reason why BHP could not, by the time of the hearing of the summons, have made the necessary investigations of the allegations made in the statement of claim such as to enable it squarely to disclose its hand in relation to the liability issue. By letter dated 3 March 2005, Mr Utting's solicitor invited BHP to acknowledge, subject to proof of employment and exposure, that breach of duty would not be in issue. As at 18 March 2005, no response had been received. I do not accept the suggestion made in oral evidence by Mr Hay (whether explicitly or implicitly - at the time of writing I do not have the benefit of a transcript) that BHP was not yet in a position to make that decision.
19 Of more significance, however, is evidence contained in the affidavit of Scott Andrew Hay, one of BHP's solicitors, sworn 21 March 2005. In para 13 of that affidavit, Mr Hay deposed that, should a party attempt to rely upon a s25B notice of the kind identified in the plaintiff's solicitor's affidavit, he would instruct counsel to object on the basis that s25B is a substantive provision of the law of NSW, and could not be applicable in the hearing of Mr Utting's claim, and also instruct counsel to argue against the use of the findings identified. Such a position does not enable me with any confidence to draw the inference I was invited by counsel for BHP to draw. The procedural provisions accordingly weigh in favour of NSW as the forum. It could not be contemplated that BHP would consider admitting liability if the matter were to be heard in SA, but refrain from doing so if it were to be heard, subject to SA substantive law, in the DDT.
20 In many other respects, save one which I will shortly mention, the circumstances of Schultz ran parallel with those of Mr Utting. While all members of the High Court agreed that the primary judge had erred in the approach he took to the construction and application of the Cross-vesting Act, the Court divided as to the course it should adopt as a consequence of that conclusion. By a majority (Gummow, Kirby, Hayne and Callinan JJ) the Court determined that that matter should be transferred to the Supreme Court of SA. The minority (Gleeson CJ, McHugh and Heydon JJ) considered it far from clear that the interests of justice required transfer. Their Honours would have remitted the matter to this Court for determination in accordance with the principles espoused in the judgments. In doing so their Honours referred to the regard that may be had for the specialist nature of the tribunal and the procedural facilities peculiar to it.
21 It was obvious during the course of the proceedings that sections such as ss25(3) and 25B are a matter of some contention between those legal representatives who regularly represent either plaintiffs or defendants in proceedings in the DDT. But those sections are not productive of unfairness to a party, whether plaintiff or defendant, who would inherit the burden of an adverse decision under s25B or the admission of previously admitted evidence. S25B does not necessarily foreclose argument or litigation of the issues to which it applies. By subs(2) it leaves open the possibility of recontesting any determination of "issues of a general nature" in the light of available new evidence, the manner of the conduct of the proceedings in which the original determination was made, and, most importantly, any other matter that the DDT considers to be relevant. Confidence may be reposed in the DDT to entertain any fresh argument or evidence genuinely and fairly: see Barry, per Mason P, at [114]. S25(3) permits the admission of the evidence in question only by leave.
22 Although Mr Hay deposed that, in the event that a s25B notice were to be served, he would, in a variety of ways, contest the use of the section, he did not suggest that any new evidence is available, that any question exists concerning the manner in which the previous proceedings were conducted, such as to call into question the relevant determination, or that any other relevant matters legitimately raise questions about the determinations upon which Mr Utting would seek to rely.
23 The parallels between Schultz and the present case are strong. The ultimate decision of the High Court was one based upon the specific facts of that case, but the parallels are such that it must be of significant guidance in the determination that I have to make. However, there are two major points of departure between the two cases. One of these is the terminal condition of Mr Utting. That makes urgency in this case much more pressing than applied in Schultz. Schultz was not a case in which the plaintiff in a substantive proceedings was terminally ill. The same urgency did not attend the resolution of his claim as is here present. In saying this I do not mean to undermine the efficiency of the Supreme Court of SA. The evidence shows that that Court will go to considerable lengths to make a hearing available. However, the evidence also shows that the Court has not, except in one case, had to make relevant determinations in cases alleging disease caused by exposure to dust. It may be inferred that the DDT will be able, with its store of accumulated knowledge and experience, to move rather more quickly and to absorb difficult technical evidence with greater expedition. Of even more importance, however, is the circumstance that, in Schultz, BHP had agreed, if the matter were transferred to SA, nevertheless to give Mr Schultz the benefit of the special procedural provisions.
24 It was these provisions that were determinative in the decision of the Court of Appeal in Barry. Both the existence of the procedures, and their voluntary application if transfer were effected in Schultz, weighed heavily with the judges who participated in the joint judgment ([28]). I recognise that the very existence of the debate about whether the sections are to be clarified as substantive or procedural is a factor favouring transfer, but, again, that debate does not determine the issue.
25 Ewins was another case with resounding echoes of the present. Gillard J, having analysed the High Court judgments in Schultz, and factual matters not greatly different from those I have had to consider, decided that that matter should be transferred from the Victorian Supreme Court to the Supreme Court of SA. At [47] his Honour said:
"The fact is that this is a South Australian case. The tort occurred there, the law which would apply would be South Australian law. There would be no debate about different questions of foreign law, the plaintiff resides in that State and I would expect would find it far more comfortable to be living at home when the litigation is under way, that BHP carries on business in South Australia, that most of the witnesses or damages would come from that State, and there is no reason to believe that the South Australian Supreme Court could not provide the same services as expeditiously as in this Court."
26 That was a case in which, like the present, the plaintiff was suffering from a terminal illness. His life expectancy was in the order of six months from the date of the cross-vesting application. However, the point of major difference between Ewins and the present case is the procedural facilities of the DDT. They did not exist in the Supreme Court of Victoria. The decision in Ewins was, of course, like those of Schultz and Barry, one of fact. Gillard J assessed the interests of justice as requiring transfer to South Australia. In this case I reach a different judgment.
27 Particularly having regard to the basis for the determination in Barry, and the support it received in Schultz, (see esp [28]), I have concluded that the interests of justice do not dictate that this matter be transferred to SA, and do dictate that it remain in the DDT.
28 The summons is dismissed.