(b) Ms Laurie advances document destruction allegations against BATAS that have a substantial interrelationship with similar allegations advanced against it in previous and current litigation in the Supreme Court of Victoria. Ms Laurie has indicated an intention to use documents and findings the subject of the current litigation in Victoria to support her document destruction allegations and wishes to delay the hearing of the DDT proceedings until the resolution of that litigation in Victoria.
25 The determination of whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state depends on what is the "more appropriate" forum for those proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161] - [169] per Kirby J. Another way of putting the same inquiry is to ask which is the "natural forum" for the proceedings: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44], Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69].
26 In Spilliada Maritime Corp v Cansulex Limited [1987] 1 AC 460 at 478 Lord Goff identified some of the "connecting factors" which were of importance in the application of the principle of forum non conveniens in England:
"So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business."
27 Those factors have been considered relevant in the assessment of the "interests of justice" in the application of s 5(2)(b)(iii) of the Act: see Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730E, Barry (supra) at [95] per Mason P; Schultz (supra) at [18] per Gleeson CJ, McHugh and Heydon JJ and at [163] per Kirby J. The location of the place of the wrong and the governing law of the wrong are also matters of prime importance in the exercise of the power of transfer under s 5(2)(b)(iii): see Barry (supra) at [7] per Spigelman CJ (a passage which was quoted with approval by Kirby J in Schultz (supra) at [165]). A further matter of importance in considering the "interests of justice" is whether the assessment of any questions arising in the litigation is dependent on a degree of local knowledge: see Bankinvest (supra) at 729D per Rogers AJA. There is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz (supra) at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J.
28 BATAS contended that Victoria is the forum with the most real and substantial connection to what were Mr Laurie's claims for four reasons. These contentions were in the form of helpful written submissions, which were to the effect of what follows.
29 First, Mr Laurie lived 35 of his 66 years in the United States. However, while he resided in Australia, he was a Victorian. Of his 31 years resident in Australia, for the first 23 he resided permanently in Victoria. He resided for no more than three years in Sydney between 1968 and his move to the United States in 1971. The balance of his period of residence in Australia was spent at sea or stationed on various naval bases in Australia.
30 Secondly, Mr Laurie's alleged cause of action against BATAS arose in Victoria. The claim against BATAS concerns smoking by Mr Laurie in the 25-year period from 1946 to 1971, referred to as the "smoking period". Seventeen of those years between 1946 and 1963 covered the period when Mr Laurie was resident in Victoria. For no more than three of them was he was resident in New South Wales and during the balance he was at sea. Moreover, it is Mr Laurie's evidence that his years of smoking in Victoria were the years that were formative of his smoking habit. Mr Laurie said he commenced smoking in Victoria at the age of six. He said he had become a regular smoker (smoking about 15 cigarettes a day) by 1955 at age 15 upon his leaving school and working in the Bendigo Ordnance Factory. By the age of 18 in 1958, Mr Laurie said that he had increased his rate of smoking to 20 cigarettes a day. He said he maintained that rate until he finally quit in 1996. Ms Laurie relies on evidence from two psychologists and a pharmacologist to the effect that Mr Laurie became addicted to smoking in Victoria.
31 Thirdly, the governing law applicable to Mr Laurie's cause of action against BATAS is likely to be Victorian. The proper law of a tort is the law of the place where in substance the cause of action arose: see Amaca Pty Limited v Frost [2006] NSWCA 173; (2006) 67 NSWLR 635 at [10] - [42] per Spigelman CJ (with whom Santow and McColl JJA agreed). The factors which indicate that the claim against BATAS advanced by Ms Laurie arose in Victoria are first, that Mr Laurie did most of his Australian smoking in Victoria, including his formative smoking and secondly, that the emphasis in the allegations of negligence made against BATAS is on the supply for sale and the marketing by BATAS of cigarettes which it was alleged it knew to be addictive and cause lung cancer, and a concomitant failure to warn Mr Laurie of those matters. In Mr Laurie's case, it was towards Victoria that the allegedly negligent conduct of BATAS was directed: see Amaca Pty Limited v Frost (supra) at [39] - [42].
32 Fourthly, Mr Laurie's claims arising out of his exposure to asbestos also have a significant connection to Victoria. Mr Laurie's first exposure to asbestos occurred in Victoria. Some small part of his alleged exposure to asbestos occurred in 1970 and 1971 in Sydney. Most, however, occurred while Mr Laurie was at sea in the Navy. The law governing the claims arising out of Mr Laurie's exposure to asbestos while in the Navy is likely to be the law of the forum where the case is heard: see Blunden v Commonwealth [2003] HCA 73; (2003) 218 CLR 330.
33 Next, BATAS contended that the document destruction allegations had a peculiar connection to Victoria. It submitted in this context that the following matters demonstrated that the Supreme Court of Victoria is the appropriate forum for the DDT proceedings.
34 First, as has been seen, the document destruction allegations advanced by Ms Laurie against BATAS find their origin in the conclusions of Eames J in the Victorian Supreme Court in McCabe. Those findings were challenged and overturned by the Victorian Court of Appeal in British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197. However, as has also been seen, the defendants to the Slater & Gordon proceedings now being conducted in the Supreme Court of Victoria have raised allegations substantially similar to the document destruction allegations advanced by Ms Laurie to resist the claims for confidentiality and privilege made by BATAS in relation to the Clayton Utz documents that are the subject of those proceedings. They have also indicated their intention to use that information to re-open the decision in British American Tobacco Australia Services Limited v Cowell (supra).
35 Secondly, the key act of document destruction found to have occurred by Eames J in McCabe was the destruction of documents by BATAS following the conclusion of the Cremona proceedings in the Supreme Court of Victoria in March and April 1998 (see [2002] VSC 73 at [127] - [172]). Moreover, it was in proceedings in the Supreme Court of Victoria, namely the McCabe proceedings, that the alleged effects of the document destruction policy were manifested and led to the findings of Eames J that, by reason of the conduct of BATAS and its legal advisers, the plaintiff in those proceedings was denied a fair trial (see [2002] VSC 73 at [290] - [322]).
36 Thirdly, the fact that the document destruction allegations against BATAS have a peculiar connection to Victoria leads to the conclusion that, in the interests of comity in the administration of justice in New South Wales and Victoria, Victoria is the preferable forum for the determination of those allegations. This consideration was one of the factors that caused Brereton J to transfer, on Slater & Gordon's application, the Slater & Gordon proceedings to the Supreme Court of Victoria. His Honour observed with reference to the document destruction allegations that "the forum in which the misconduct is alleged to have occurred is a preferable forum for determining whether it in fact occurred; it is the natural forum for the resolution of such an issue …".
37 Fourthly, as noted above, Ms Laurie's solicitors have foreshadowed that they will seek to use the outcome of the Slater & Gordon proceedings, including the Clayton Utz documents, to support the document destruction allegations made against BATAS in the DDT proceedings. In their letter of 9 November 2007 to BATAS's solicitors, Turner Freeman stated that their understanding of the Slater & Gordon proceedings was that those proceedings:
"… may result in the availability of documents or findings that may be of assistance to Mrs Laurie in her proceedings. That being the case these proceedings should not be litigated until such time as the Victorian proceedings are determined".
38 BATAS argued that Ms Laurie's expressed intention to make use of the outcome of the Slater & Gordon proceedings, including the Clayton Utz documents, to support her document destruction allegations against BATAS and to delay the further conduct of the DDT proceedings until the Slater & Gordon proceedings are complete, demonstrates the importance of those allegations to her claims. It also indicates that, in the event BATAS is unsuccessful in the Slater & Gordon proceedings, there may arise potentially complex issues regarding the processes of the Supreme Court of Victoria and the exercise of its discretion to allow Ms Laurie to use the Clayton Utz documents. The defendants in the Slater & Gordon proceedings have indicated repeatedly that the sole use they wish to make of the Clayton Utz information is for the purposes of prosecuting an application to the Victorian Court of Appeal to overturn the decision of the Victorian Court of Appeal in British American Tobacco Australia Services Limited v Cowell (supra). Therefore, even if BATAS is unsuccessful in the Slater & Gordon proceedings, the Clayton Utz documents will not be at large. Rather, those documents will remain within the control of the Supreme Court of Victoria in litigation still extant before it.
39 Whether Ms Laurie should be entitled to use the Clayton Utz documents (even if BATAS is unsuccessful in the Slater & Gordon proceedings) to advance her document destruction allegations, what conditions should attach to any such use and how that use will be supervised are all issues that may arise in the DDT proceedings. They are issues which have some affinity with those that arise when leave is sought to use documents other than for the purposes of proceedings contrary to the implied undertaking associated with the decision in Harman v Home Office (supra).
40 All these matters are said to raise issues of discretion that only the Supreme Court of Victoria can effectively exercise. They are also said to raise issues of the control by that Court of documents the subject of litigation before it of which that Court, and only that Court, is the appropriate arbiter. They are matters that indicate that the appropriate forum for the DDT proceedings is the Supreme Court of Victoria.
The defendants' response
41 Ms Laurie and the Commonwealth both opposed the application. The principal basis of that opposition resided in the fact that Mr Laurie had given evidence in Texas at a time when BATAS had neither made nor foreshadowed the present application. That was said to have produced at least two consequences of significance. First, no detailed evidence was led from Mr Laurie in relation to the precise periods spent in Victoria or New South Wales when he smoked. If that issue were to have or to achieve any significance in the proceedings, Ms Laurie will suffer irremediable prejudice of an obvious kind.
42 Secondly, by reason of the agreement among the parties concerning the extent to which Curtis J was to be permitted to take account of demeanour and the like, any advantage that may accrue from his unique position would be lost were some other judge to be confronted with the case afresh. This was particularly so given the fact that evidence was given in Texas by Mr Laurie about his addiction to tobacco products manufactured by BATAS. He was extensively cross-examined in relation to this evidence and it was suggested to him by senior counsel for BATAS that he had determined to continue smoking, despite warnings that had been issued about the dangers of doing so. Even though this evidence was recorded on videotape, Curtis J was in the unique position of being able to make an assessment of Mr Laurie's credibility and demeanour when he gave it, and when pressed on important aspects of his evidence in cross-examination. Following his death it is not now possible for any new tribunal of fact to make the same assessment based upon personal observation.
43 The Commonwealth also emphasised the following matters.
44 The proceedings were regularly commenced in the Tribunal, which is a specialised tribunal with certain procedures and evidentiary presumptions not available in a normal civil action in other common law courts. Mr Laurie's evidence was taken in Texas. One of the issues arising between Mr Laurie and the Commonwealth was the extent and degree to which he was exposed to asbestos dust and fibre in a respirable form during the course of his engagement in the navy. Previous decisions of the Tribunal have required the epidemiological establishment of a doubling of the risk of contracting lung cancer from exposure to asbestos dust and fibre before a plaintiff could succeed in demonstrating that lung cancer had been materially contributed to by that exposure.
45 The Commonwealth contended that Mr Laurie's description of his working conditions with the navy fell far short of establishing any degree of exposure that could be said to have increased his risk of contracting lung cancer to double that of background or anything like it. In those circumstances a forensic decision was made by the Commonwealth to explore the nature and extent of exposure with Mr Laurie only in a most cursory way. If it had been appreciated or understood that causation might conceivably be determined by a jury as a matter of fact, the cross-examination about Mr Laurie's exposure would have been far more detailed and probing than the cross-examination actually undertaken. That position cannot now be remedied.
46 As to the jurisdiction with the closest connection to the action, the Commonwealth submitted that although Mr Laurie was located for a time in Victoria during training, most of his time on board naval vessels would have involved ships operating out of the fleet base in Sydney Harbour. Accordingly, both in respect of his exposure to asbestos dust and fibre and the consumption by him of tobacco products on board ship, the Commonwealth contended that there was a greater connection with New South Wales than with Victoria. The DDT proceedings should therefore not be cross-vested to the Supreme Court of Victoria.
Consideration
47 In my opinion the interests of justice do not favour the hearing of the DDT proceedings in the Supreme Court of Victoria. This is for the following reasons.
48 First, there is no issue that arises about when the proceedings should be heard. Ms Laurie does not want or need to have the DDT proceedings heard at or by any special or particular time. She is content to have the proceedings heard when the document destruction allegations and the status of the Clayton Utz documents have been finally determined. Ms Laurie is not an active party in those disputes and her proceedings do not have any impact upon or any direct role to play in their outcome. Conversely, BATAS has not pointed to any particular or identified advantage and is not liable to suffer any particular or identified disadvantage or detriment either in the DDT proceedings or the Slater & Gordon proceedings if the DDT proceedings are heard last.
49 Secondly, the suggestion that the document destruction allegations have a peculiar connection to Victoria seems to me, accepting it to be true, to be beside the point. The document destruction allegations certainly find their origin in the conclusions of Eames J in McCabe. But one might respectfully ask, so what? If, as seems apparent, all parties recognise that they must, or at least are prepared to, await the result of the document destruction allegations in the Victorian courts, then that raises no issue of the interests of justice that is not neutral if it raises the issue at all. The fact that the defendants in the Slater & Gordon proceedings have raised allegations substantially similar to those raised by Ms Laurie to resist the claims for confidentiality and privilege made by BATAS in relation to the Clayton Utz documents is to my mind a fact of no prominence. The legal and intellectual idiosyncrasies of cases giving rise to these issues concerning BATAS' policies, and cases based upon complaints about them, seem to me to be matters with no particular geographical or jurisdictional heritage. They are for all intents at large. The use to which the pending decisions about the document destruction policy in general or the Clayton Utz documents in particular can be put in subsequent proceedings both in New South Wales and Victoria, as well as elsewhere, will be limited. This is not, for example, a case where BATAS seeks a transfer to Victoria in anticipation that the evidence in the DDT proceedings will be taken as evidence in the Slater & Gordon proceedings and vice versa. There is no pertinent connection that raises the interests of justice in any tangible context. The contention by BATAS that it is in the interests of comity in the administration of justice in New South Wales and Victoria that the DDT proceedings be heard in a Victorian forum is to my observation without substance.
50 Thirdly, the suggestion that there is a relevant connection with Victoria that arises out of an allegation that Mr Laurie consumed BATAS products at some time in that state is not a matter that promotes the present application. The parties provided me with a document described as Mr Laurie's smoking chronology. He began to smoke at the age of six and was smoking 15 cigarettes a day by 1958. BATAS contends that the early geographical link is important but does not support that contention with a substantive argument. For example, it is not suggested that in the DDT proceedings there will be witnesses from newsagents or tobacconists called on competing evidence about whether or not Mr Laurie smoked at all in that state as a child or ever, or that the brands of cigarettes that he smoked were manufactured by BATAS. The fact that Mr Laurie may have done most of his Australian smoking in Victoria, including what is called his "formative smoking", is a matter of no apparent substantive or procedural consequence. It is superficially relevant but no more. Once again there appears to me to be no legal or factual connection with Victoria of any significance that promotes that state in the interests of justice as the appropriate forum. It does not on any view appear to me to be "the natural forum for the resolution" of any important issue that arises in the DDT proceedings. It is not strictly accurate to suggest that "it was towards Victoria that the allegedly negligent conduct of BATAS was directed".
51 In contrast, the importance both of the role played and yet to be played in the resolution of the DDT proceedings by Curtis J is patent. The agreement among the parties that he should be given the power to deal with observations made by him in a particular way was predicated upon his continuing to hear the proceedings to finality. It is in the interests of justice that that agreement not lightly be frustrated. BATAS responds by saying that the electronic record of the proceedings in Texas means that any successor to his Honour will be in exactly the same (or what amounts to the same) position, and that there is no evidence or necessary inference that his Honour would use his observations in a manner that is ultimately favourable or beneficial to Ms Laurie's case.
52 The first proposition is not one to which I would be prepared to give weight. The recording of the proceedings is limited to a view of Mr Laurie and does not record all that was going on at his bedside. Curtis J saw more than was recorded and the agreement that was reached permits him to use it. Secondly, the fact that BATAS may itself be the beneficiary of his Honour's findings on demeanour and the like, and that Ms Laurie may not, appears to me in the context of an inquiry about whether a transfer of proceedings to another jurisdiction is in the interests of justice, to be an argument for leaving the proceedings to be heard by his Honour rather than the reverse.
53 Furthermore, there is some force in the argument that forensic decisions were made by senior counsel for the Commonwealth about liability issues and the way that he would cross-examine Mr Laurie in the circumstances and that these decisions were made in the light of the agreement among the parties and the expectation that Curtis J would hear the case to finality. BATAS has conceded that there will be no objection taken by them to the use of the recording of Mr Laurie's evidence in any Victorian version of the DDT proceedings. That does not seem to me to cure the potential injustices associated with the making of forensic decisions on behalf of Ms Laurie and the Commonwealth that may turn out to be wrong when circumstances change through no fault of their own. It is not without importance that the present application had not been foreshadowed when the agreement was made or before Mr Laurie's evidence had been completed.
54 Finally, it is apparent that expert and lay evidence will be called on all sides and on all manner of issues in the DDT proceedings from witnesses whose residential and professional addresses are both within and beyond Australia. No submissions were made to me that any one witness or group of witnesses gathered by location or specialty favoured either the transfer of the DDT proceedings to Victoria or their retention in the Tribunal. In the modern electronic era, this must be so in any event. It would only ever amount to a neutral consideration in the absence of some overwhelming or at least persuasive balance in favour of Victoria over New South Wales. No such position obtains in this case.
Conclusion
55 In my opinion, the interests of justice do not favour the transfer of the DDT proceedings to the Supreme Court of Victoria.
Orders
56 The plaintiff's summons should be dismissed. Costs would ordinarily follow that event. I will refrain from making any costs order in case any party wishes to make particular submissions beforehand. I will if required hear any argument on the question of costs at a time convenient to all parties to be arranged in consultation with my Associate.