Broken Hill Proprietary Company Ltd v Zunic & ors

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11353/2001 - THE BROKEN HILL PROPRIETARY COMPANY LTD trading as THE WHYALLA SHIP BUILDING & ENGINEERING WORKS v ZUNIC & 3 ORS 11354/2001 - WALLABY GRIP LIMITED & ANOR. v ZUNIC & 2 ORS.

11426/2001 - AMACA PTY LIMITED (formerly James Hardie & Coy Pty Limited) v ZUNIC & 3 ORS

1 HIS HONOUR: Before the Court are three summonses, each of which seeks: first, an order pursuant to section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), ["the Cross-Vesting Act"], removing into the Common Law Division of this Court certain proceedings current in the Dust Diseases Tribunal of NSW, ["the Tribunal"]; and secondly, should such removal be ordered, then an order pursuant to section 5(2)(iii) of the Cross-Vesting Act for the transfer of the removed proceedings from this Court to the Supreme Court of South Australia. 2 The plaintiffs in the three summonses are, variously: The Broken Hill Proprietary Company Limited trading as the Whyalla Ship Building & Engineering Works, ["BHP"]; two related companies, Wallaby Grip Limited, and Wallaby Grip (BAE) Pty Limited (in liquidation), which it is convenient to treat together for present purposes, and to describe jointly as "Wallaby"; and Amaca Pty Limited (formerly James Hardie & Company Pty Limited), ["Amaca"].

Factual Background 3 There are current in the Tribunal proceedings that were commenced by the filing on 7 March 2001 of a Statement of Claim in which the named plaintiff is Mr. Ivan Zunic, and the named defendants are the corporate plaintiffs in the three summonses to which I have earlier referred. 4 Mr. Zunic pleads that he was employed by BHP between mid-1962 and about 1979 as a painter and docker working in BHP's dockyard in South Australia on board vessels under construction and undergoing refit. He alleges that he was exposed during the course of such employment to asbestos dust and fibre; that he did in fact inhale such dust and fibre; that as a consequence he has contracted the disease mesothelioma; and that he has thereby suffered compensible damage. He sues in negligence; for breach of contract; and for breach of statutory duties. 5 Mr. Zunic sues Wallaby and Amaca for having manufactured and/or supplied to BHP various materials containing asbestos, and intended for use in work of the kind that he was employed by BHP to carry out. He sues Wallaby and Amaca in negligence. 6 On 28 May 2001 the Tribunal granted to Mr. Zunic leave to amend his original Statement of Claim. Extensive amendments were thereupon made. It is sufficient for present purposes to understand that the amendments: first, refine considerably the definition of the actual materials, the manufacture, sale and use of which have allegedly caused Mr. Zunic to contract mesothelioma; secondly, tighten the pleading of the alleged causal link between the manufacture, sale and use of those further defined materials and Mr. Zunic's medical condition; and thirdly, endeavour to plead aspects of the manufacture, sale and use of the materials so as to suggest a plausible NSW location of those aspects. 7 Defences, some of them variously amended at various times, have been filed. It is not necessary to detail them beyond the following outline, which is taken from the written submissions made by learned Counsel for BHP in the present proceedings: "8. The following issues are the only matters in dispute: (a) Was Mr. Zunic exposed to asbestos dust and fibres from Wallaby Grip's, Wallaby Grip BAE's and Amaca's products during the course of his employment with BHP? (b) Has Mr. Zunic developed mesothelioma, asbestosis or asbestos-related pleural disease? (c) To what award of damages is Mr. Zunic entitled? (d) Is Mr. Zunic's claim barred by the Limitations Act 1936 (SA)? 9. In summary, the case against the defendants is very simple. Subject to proof of exposure and diagnoses, liability will not be in issue. If Mr. Zunic proves exposure to asbestos from Wallaby Grip's, Wallaby Grip BAE's and Amaca's products and the development of the alleged injuries, then each defendant will admit liability and the hearing will become an assessment of damages."

Relevant Legislation 8 Parts of two particular sections, namely sections 5 and 8, of the Cross-Vesting Act govern the present applications. The relevant provisions are: "8(1) Where: (a) a proceeding (in this sub-section referred to as the "relevant proceeding") is pending in: ……. (ii) a Tribunal established by or under an Act; and (b) it appears to the Supreme Court that: … … (ii) an order should be made under this sub-section in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court." "5(2) Where: (a) a proceeding (in this sub-section referred to as the "relevant proceeding") is pending in the Supreme Court (in this sub-section referred to as the "first court"); and (b) it appears to the first court that: … … (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another state or of a territory, the first court shall transfer the relevant proceedings to that other Supreme Court." 9 The Tribunal is constituted by the Dust Diseases Tribunal Act 1989 (NSW), ["the Tribunal Act"]. It is not in present dispute that the Tribunal comes within section 8(1)(a)(ii) as quoted above. 10 It is relevant to consider, in addition to the foregoing provisions of the Cross-Vesting Act, some of the provisions of the Tribunal Act. Schedule 1 to that Act prescribes mesothelioma as a disease to which the provisions of the Tribunal Act are to be applicable. Part 3 deals with the jurisdiction of, and proceedings before, the Tribunal. Of particular significance for present purposes are sections 10(1), 11, 12, 12A, 12B, 12D, 15, and 16; sections 13 and 23; and sections 25, 25A and 25B. It is not necessary to set out in full the terms of those various sections.

"The Interests of Justice" 11 In striking the required balance I have had regard, in particular, to the decisions of the Court of Appeal of this State in Bankinvest AG v Seabrook (1988) 14 NSWLR 711, and James Hardie & Coy Pty Limited v Barry (2000) 50 NSWLR 357. First, they are decisions, the essential reasoning of which is binding on me. Secondly, as was pointed out by Young J in Hayward v Barratt & anor (2000) NSWSC 708 (11 July 2000), the decision in Bankinvest: "laid down the way in which Courts should approach these sort of applications in this State. ……………..(I)t appears from the judgment in the Bankinvest case that it was more or less a guideline judgment, ……………. Freely interpreted, that means I must undertake a case management exercise to see what would be the best order to make to facilitate the trial of the litigation, ………………."

Thirdly , the decision in Barry is very recent; and it dealt specifically with an application to transfer to a State Supreme Court proceedings which had been commenced in the Tribunal in connection with a tort committed in the particular State. 12 I propose to set out successively the considerations which I regard as relevant in the present case; to say, briefly, something about each; and then to consider how the final balance of the interests of justice should be struck. Guided by the authorities to which I have referred, I have approached the concept of "the interests of justice" as a very broadly based and flexible concept; and I have kept in mind in that connection the observations of Street CJ in Bankinvest: "……………It can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. Consideration of textured principle and deep learning - in particular principles of international law such as forum non conveniens - have no place in a cross-vesting adjudication." 14 NSWLR, 714E

The Personal Circumstances of Mr. Zunic 13 Mr. Zunic is aged some 76 years. There is, as matters stand, a medical issue as to his claim that he is suffering from a condition of mesothelioma. The proposition that he is suffering from that disease is based upon clinical diagnosis unconfirmed by appropriate biopsy or by similar invasive investigation. It is, nonetheless, clear that Mr. Zunic is, by any informed and reasonable reckoning, a very sick man. 14 The available evidence does not establish on the probabilities an estimated life expectancy that has been defined by qualified expert opinion in terms of some more or less closed period of days, weeks or months. It is, in my opinion, clear nevertheless that Mr. Zunic is a very sick and frail old man whose life expectancy is likely to be shorter rather than longer. 15 In those circumstances a reasonable sense of fairness and a reasonable compassion point in the same direction; that is to say, in the direction of the taking of every proper step to ensure that Mr. Zunic has his day in Court as quickly, as simply and as efficiently as practicable.

The Jurisdiction of the Tribunal has been Regularly Invoked by Mr. Zunic 16 No submission to the contrary was put. It was submitted that the Tribunal is not the more appropriate forum as between itself and the Supreme Court of South Australia; but it was not submitted that the Tribunal lacks jurisdiction to entertain Mr. Zunic's claim to it for relief. 17 This consideration is, of course, not of itself determinative of the present application, but it is not a merely peripheral matter. There is evidence, which I accept, that Mr. Zunic has brought his current claim in the Tribunal upon proper professional advice; and that those charged with his professional advising and representation perceive genuinely, and not unreasonably in the light of past experience, that there are legitimate procedural, evidentiary and cost advantages to be had from litigating in the Tribunal. 18 In those circumstances, Mr. Zunic's own choice of forum ought not lightly to be over-ridden.

The Present Applicants have been Dilatory in Seeking Removal and Cross-Vesting Orders 19 The evidence establishes to my satisfaction on the probabilities that no one of the present applicants is an inexperienced litigant in the Tribunal. 20 Whatever fine debating point might be taken about the applicability in the present case of SCR Pt 74 Rule 8, the spirit and intendment of that Rule are clear: cross-vesting applications are to be made "on or as soon as practicable after the commencement of the proceedings" which are the subject of the intended application. 21 The course of pleading and procedure which was in fact followed is detailed by Mr. A. Gardiman, Mr. Zunic's solicitor, in the section headed "The Plaintiff's Case in the Tribunal", of his affidavit sworn on 8 June 2001. It thus appears that BHP and Wallaby filed their present applications on 8 May 2001; while Amaca did not filed its application until 11 May 2001; and that both before and after those filings, all three applicants took various steps appropriate to the regular progress in the Tribunal of Mr. Zunic's proceedings in that forum. 22 That such has been the stance of the applicants cannot of itself peremptorily defeat their present applications; but the stance has about it, as it seems to me, an air of what I might describe as forensic approbating and reprobating; and that is, I think, at the very least a factor material to striking now a fair balance of the relevant "interests of justice".

The Tribunal has a Particular Experience and Facility in Dealing with Dust Disease Claims 23 These points are developed helpfully in the following extract from the judgment of the learned President of the Tribunal in Hearn v Commonwealth [2000] NSWDDT 12 (6 December 2000): "It may be appropriate to recite, even though it might well be recognised, that the Tribunal, which was created in 1989 specifically to deal expeditiously with the cases of people suffering dust diseases, has adopted practices and been granted statutory procedures to enable it effectively to discharge the functions for which it was created. The Tribunal is well accustomed to hearing cases in which people suffer mesothelioma and other asbestos related diseases. Cases of mesothelioma and other forms of cancer are each treated as urgent. This is because the Tribunal's experience confirms that the health of a person with mesothelioma or cancer may change suddenly and with little or no warning. Subject to the readiness of the parties to litigation the Tribunal will sit at any time and in any place in Australia to hear the cases of plaintiffs which are properly before it and who are unable to travel to Sydney. For this reason the Tribunal now regularly sits in Brisbane and regularly sits in Adelaide. It may be of interest to remark that sittings in Adelaide allocated for the future are slightly more than one week in each month." 24 These considerations are given a more developed definition by Mr. Gardiman in his affidavit earlier mentioned: see the section headed, "The Dust Diseases Tribunal of NSW". I accept what is there deposed.

The Place of the Torts Pleaded Respectively against the Three Present Applicants 25 This matter lies at the heart of the present applications. The applicants contend that each alleged tort in respect of which Mr. Zunic sues in the Tribunal is, in every real and substantive sense, a tort committed in South Australia. 26 This submission is to be tested by this approach: "………….when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?" Distillers Co. (Biochemicals) Ltd v Thompson [1971] AC 458 at 468E. 27 On the given facts of the present case, it seems to me that the only sensible answer to that question is that each relevant tort arose in substance in South Australia. It is the undisputed, indeed the indisputable, evidence that at all material times Mr. Zunic lived in South Australia; worked in South Australia; and if exposed at all to the deleterious effects of asbestos, was so exposed in South Australia. 28 Such a finding has obvious weight for present purposes; but it does not follow that, because of the finding, the present ultimate issue is ipso facto to be resolved in favour of the applicants. The relevant principle is stated as follows by Spigelman CJ in Barry: "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." 50 NSWLR,. 361(7)

Comparative Availability of an Appropriately Expedited Hearing 29 A large amount of affidavit evidence was tendered on this issue. It seems to me to come down to this: the Supreme Court of South Australia can, and probably will, give Mr. Zunic's case some priority; but it is unlikely in fact, albeit possible in theory, that the practical outcome could be as swift a hearing as the Tribunal can provide. A present decision, unreversed on appeal, that there should not be a cross-vesting to the Supreme Court of South Australia, would clear the way for a final hearing in the Tribunal some time towards the end of this month.

Comparative Cost Considerations 30 On this matter, also, there is a dense mass of affidavit evidence going into all kinds of detail about costs and fees, travel and other logistics. It seems to me to come down to this: it will probably cost overall somewhat more to litigate in the Tribunal than in the Supreme Court of South Australia; but the differential is not so stark as to draw a spontaneous reaction that such a differential is so manifestly excessive as to weigh down heavily the pro-cross-vesting side of the relevant balance.

Comparative Evidentiary Advantages 31 I have earlier quoted the succinct and helpful crystallisation, put forward in paragraphs 8 and 9 of BHP's written submissions, of the outstanding issues for trial. It is submitted by the applicants that such a narrowing of the issues for trial entails that the unique evidentiary provisions of the Tribunal Act do not have in the present case the weight that they had, for example, in Barry.

I do not accept that submission. It seems to me that the issues defined in paragraph 8(b) and (c) of BHP's written submissions, and quite possibly the issue defined in paragraph 8(a), will be susceptible of proof, either in whole or in significant part, by the use of section 25(3) of the Tribunal Act ; and, quite possibly, by the use also of sections 25A and 25B. A general scan, - (but admittedly not a detailed study, which I have thought unnecessary), - of the contents of Exhibit 1 seems to me to give weight to these perceptions.

The Matter of Forum Shopping 32 Central to the submissions of the applicants is the proposition that Mr. Zunic, by proceeding in the Tribunal, has indulged in "naked………………forum shopping". It is submitted that a central objective of the Cross-Vesting Act is "to stamp out forum shopping". Learned senior Counsel for Mr. Zunic, in his oral submissions, responded with a submission that the appellants were resorting to some outmoded notion of States' rights in order to defeat the legitimate operation of a unique and progressive statutory innovation.

I do not think that it would serve any useful purpose to add fuel to those particular flames. I make, rather, two observations:

[1] In Goliath Portland Cement Co Ltd v Bengtell & anor (1994) 33 NSWLR 414 at 419, Gleeson CJ speaks of what his Honour describes as a "legitimate juridical advantage" ; and observes that such concept "serves to neutralise" what his Honour describes as "the opprobrium that accompanies the dyslogistic and equally unhelpful phrase, forum shopping" .

[2] The written submissions of BHP point out, in their paragraph 21, that: "Mr. Zunic's case is but one example of many recent South Australian torts being brought by South Australian residents in the DDT. The DDT has, in fact, established a South Australian 'circuit' : ……………. Mr. Zunic's solicitors have engaged in significant advertising in order to attract South Australian plaintiffs to the DDT………… " Whatever may be thought about the merits of such a state of affairs, whether from the philosophical, the professional or the public policy point of view, there is certainly nothing secret about what is thus described. It cannot be supposed that the Parliament of New South Wales is not well aware of the state of affairs to which attention is thus drawn. Nor can it be supposed that the Parliament of New South Wales either could not, or would not, intervene by appropriate legislation in order to correct that state of affairs if Parliament were of the opinion that there was good reason, as a matter of public policy, to do so. And yet Parliament has not intervened. It seems to me that such considerations at least take some of the pejorative sting out of the term "forum shopping" . 33 It remains to balance all of the foregoing considerations, keeping in mind the correct ultimate question, namely: which is the more appropriate forum, upon a fair balancing of all of the factors defining the relevant "interests of justice". 34 I have come to the conclusion that in the present case the striking of such a balance favours leaving Mr. Zunic to pursue his current claims in the Tribunal. In each of the three present applications, the summons is, therefore, dismissed with costs. **********

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