CALTEX REFINERIES (QLD) PTY LIMITED v STAVAR & ORS

Jurisdiction of Courts (Cross-vesting) Act 1987 LEGISLATION CITED : Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulations 2007

Bankinvest AG v Seabrook (1988) 14 NSWLR 711 CASES CITED : James Hardie & Co Pty Limited v Barry (2000) 50 NSWLR 357 BHP Billiton v Schultz & Ors (2004) 221 CLR 400 QBE Insurance (Australia) Limited v Wallaby Grip Limited & Ors [2007] NSWCA 43

Caltex Refineries (Qld) Pty Limited (Plaintiff) Beverley Dawn STAVAR (First defendant) PARTIES : Amaca Pty Limited (Formerly James Hardie & Coy Pty Limited) (Second defendant) Wallaby Grip Limited (Third defendant) Wallaby Grip (BAE) Pty Limited (Fourth defendant) Wallaby Grip (NSW) Pty Limited (Fifth defendant)

G Parker (Plaintiff) COUNSEL : J McIntyre SC/S Tzouganatos (First defendant) Submitting appearance (2-5 Defendant)

Ebsworth & Ebsworth Lawyers (Plaintiff) SOLICITORS : Turner Freeman (First defendant) Middletons Lawyers (Third defendant) Ian Lawrence Struthers & Associates (Fourth & Fifth defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10377/08 - CALTEX REFINERIES (QUEENSLAND) PTY LIMITED v STAVER & ORS

1 HIS HONOUR: Mrs Beverley Stavar, who has malignant pleural mesothelioma, has commenced proceedings in the Dust Diseases Tribunal of New South Wales against Caltex Refineries (Qld) Pty Limited for damages. Mrs Stavar's husband was employed from about 1964 to about 1985 as a lagger and sheet metal worker at the Caltex Refinery in Brisbane. During this period he worked with and was exposed to dust and fibre from asbestos insulation materials, which adhered to and covered his work clothing and person. Mrs Stavar alleges that, for her part, she was also exposed to and inhaled asbestos dust and fibre arising from her contact with her husband and shaking out his contaminated work clothes and that this exposure caused her fatal illness. The medical evidence is that Mrs Stavar's median survival is between six and eighteen months from 7 November 2007. It is evident therefore (and not controversial) that an early hearing is of crucial, possibly decisive, importance. 2 Mrs Staver commenced proceedings in the Tribunal on 27 November 2007. These are currently underway in accordance with the timetable filed in the Tribunal on 2 January 2008. That timetable shows that the last date for appointment of a mediator was 14 March 2008 and the last date for completion of mediation is 1 April 2008. 3 In the Tribunal, Caltex also sues the manufacturers of the asbestos insulation materials from which the dust inhaled by Mrs Stavar emanated, namely, Amaca Pty Limited (formerly James Hardie & Coy Pty Limited, which is registered in New South Wales), Wallaby Grip Limited (formerly Bells Asbestos and Engineering Pty Limited, incorporated in the United Kingdom and registered as a foreign corporation in New South Wales), Wallaby Grip (BAE) Pty Limited (incorporated and registered in the Australian Capital Territory) and Wallaby Grip (NSW) Pty Limited (incorporated and registered in New South Wales). 4 Issues of apportionment between defendants are determined by a Contributions Assessor in accordance with the Dust Diseases Tribunal Regulation 2007. This determination will occur prior to 1 April 2008 to allow the compulsory mediation to proceed. If the matter is to proceed to hearing, the evidence as at 27 February 2008 is that, there were no hearing dates listed in May and all three judges of the Tribunal would be available. In June, two of them were booked up for the first two weeks but the third is available for the entire month. All judges are available from 16 June onwards. 5 Caltex seeks an order under s 81 of the Jurisdiction of Courts (Cross-vesting) Act 1987 that the proceedings be removed into this Court and then be transferred pursuant to s 5(2) of the Act to the Supreme Court of Queensland. The other defendants have not joined in this application though they do not oppose it. 6 Section 81 of the Act raises no present difficulty - it is merely a machinery provision to permit this Court to consider whether there should be a transfer in accordance with s 5(2). That provision is as follows: "5(2) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court (in this subsection referred to as the first court ), and

(b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court,

(ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory, (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or (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 proceeding to that other Supreme Court." 7 This provision has been the subject of a deal of judicial discussion. In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 713-714, Street CJ said - "The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transfer from one of those ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the courts in which proceedings are commenced either to transfer or not to transfer the proceedings to one or the other nine based, broadly speaking, upon consideration of the interest of justice…It calls for what I might described 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." 8 In BHP Billiton v Schultz & Ors (2004) 221 CLR 400 (a case, incidentally, which concerned the transfer of an action from the Tribunal to the Supreme Court of South Australia) the following general observations were made by Gleeson CJ, McHugh and Hayden JJ (at 421, 422, 423) - "[14] … There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. [15] The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff's lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal is near death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff's early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interest of justice, bearing in mind the condition of many sufferers from dust diseases. [16] On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage, which a plaintiff might obtain from proceedings in one court, might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party. … [19] In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in any cross-vesting applications." 9 In James Hardie & Co Pty Limited v Barry (2000) 50 NSWLR 357 at 361, Spigleman CJ said - "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 facts may need to be assessed in the process of determining where the interest of justice lie."

There can be little doubt that the place of the tort here is Queensland. 10 Caltex has identified the "central issue" that it wishes to agitate is whether it owed Mrs Stavar a duty of care and, if so, whether that duty was breached. It is submitted that determination of this issue will require a considerable amount of "local evidence" including where and in what circumstances Caltex carried on business in Queensland. Thus, it is contended, litigation of this issue depends on what are called "local factors" and therefore that the interests of justice favour a transfer to Queensland. It was submitted by Mr Parker of counsel for Caltex that the company's case in this respect is that an employee's spouse is not a member of a class with such a relationship to the employer that there would be a duty of care towards him or her. This argument is not immediately attractive if it be accepted that the employer has a duty not to expose the employee to asbestos dust because of its extremely dangerous character and it may reasonably be expected that the employee's spouse might assist with the cleaning of the employee's clothes. However, Caltex, of course, must be entitled to litigate this issue. I mention it because the relevant evidence does not strike me as likely to be extensive, at least in terms of lay evidence. 11 Mr McIntyre SC for Mrs Stavar pointed to another possible line of defence on the question of duty, to which I briefly refer in dealing with the possible relevance of s 25B of the Dust Diseases Tribunal Act 1989. 12 The law concerning the existence of a duty of care is the common law of Australia and there is no difference between New South Wales and Queensland in this respect. Accepting that some "local evidence" is material, I think the extent of this evidence will be very limited. Furthermore (at least from the plaintiff's point of view) it will depend to a considerable degree on the evidence of Mrs Stavar, whose ability to give that evidence will become progressively more adversely affected as time passes. In a practical sense, local witnesses can at all events be accommodated since the Tribunal can and will sit in Brisbane and also take evidence by electronic means. 13 I have mentioned, in the context of the chronology, the claims resolution process under the Dust Diseases Tribunal Regulations 2007. That process is designed to facilitate and, to some extent, limit the time taken up by mitigating a hearing in which the plaintiff is involved, the questions of adjusting the relative liabilities of contributors to the plaintiff's injury. 14 Caltex points to a number of other features of the case favouring transfer. The Regulations provide that apportionment is determined according to the pleadings in the principal proceedings and standard presumptions as to apportionment published in the Gazette. Caltex does not submit that there would or might be a dispute about apportionment with the other defendants on the assumption that it was held to be liable. Nor does it submit that, if it were held liable to make a contribution, it would be adversely affected by apportionment in accordance with the Regulations as distinct from the conventional outcome. Caltex's complaint is that its liability to make a contribution would be determined upon the assumption that it was liable to the plaintiff, an assumption which it disputed. Provision is made in the regulations for the determination of disputed liability by the Tribunal although the procedures for doing this are not without some uncertainty. However, it is clear that Caltex is entitled to litigate the issue of its liability to Mrs Stavar before the Tribunal and, if it wins on that issue, plainly it does not need to pay compensation. It cannot be called on to pay a contribution to Mrs Stavar until a judgment has been given in favour of Mrs Stavar against it. I think this necessarily follows from the language of Regulation 52. There may be some additional difficulties facing a defendant where there was a dispute about apportionment of the kind outlined by Handley AJA in QBE Insurance (Australia) Limited v Wallaby Grip Limited & Ors [2007] NSWCA 43. Accepting that those problems are material, it is not necessary for me to describe them further. Caltex also points to s 42 of the Dust Diseases Tribunal Act 1989, which provides that an appeal may be taken from a decision of the Tribunal to the Supreme Court but only as to a point of law or on a question as to the admission or rejection of evidence whilst, in Queensland, the parties have a full right of appeal under the equivalent Queensland legislation. This circumstance favours both parties at the present stage of proceedings. 15 In respect of the expected time frame for a trial in Queensland, Caltex relies upon the evidence of an experienced practitioner, Mr Nicholas Burkitt. Mr Burkitt deposes that he has acted in over twenty-five cases on behalf of parties involved in asbestos related litigation. These cases include matters in which the plaintiff has needed an expedited timetable to ensure that the trial occurred whilst he or she was able to give evidence. He makes the general point that the Queensland Supreme Court (as one would expect) has the necessary powers and will put in place the necessary procedures to ensure that a trial of an asbestos case could be heard within the time frame indicated by the medical evidence as to a plaintiff's life expectancy. Mr Burkitt is also familiar in a general way with the practice and procedure of the Tribunal and expresses the view that a terminally ill plaintiff would be at no disadvantage in litigating in Queensland in terms of procuring early hearing dates and obtaining directions to ensure that the trial is expeditiously conducted. Mr Burkitt's experience is that, in a case such as Mrs Stavar's, the first available trial dates could be obtained from the Senior Judge Administrator of the Queensland Supreme Court who would then make directions as to available trial dates or request the parties to appear for the purpose of assisting to determine how to achieve an expeditious hearing. Mr Burkitt said that, in his experience, "It is extremely unlikely that the Supreme Court of Queensland would not do what it could to ensure that a plaintiff with a terminal illness received the earliest possible trial date by which the matter could be ready". He points out that, in the alternative, the Court may order that evidence be taken in advance of the trial if the circumstances so required. 16 Mrs Stavar's solicitor, Mr Blundell, has made more specific enquiries. He enquired on 27 February 2008 of the Civil List Manager of the Supreme Court of Queensland about the availability of hearing dates in respect of a matter of approximately two weeks' duration where the plaintiff suffered from mesothelioma. He was informed that, although this question would need to be answered by a judge, "it would not be until the second half of the year, the special list dealing with five day plus civil trials…is filled until the second half of the year". Caltex has not sought to gainsay the accuracy of this information.

17 The procedures of the Tribunal have been designed to deal with the peculiar problems presented by litigation in this area, including the tragic fact that many plaintiffs have limited and in some cases, extremely limited, life expectancy by the time proceedings are undertaken. The procedures of the Tribunal have been moulded to streamline the usual processes that apply to ordinary litigation. In short, the identification of real issues is required at an early stage, compulsory mediation is an integral part of the process and evidentiary provisions limit unnecessary or unproductive litigation. In particular, s 25(3) of the Dust Diseases Tribunal Act 1989 provides that historical evidence and general medical evidence concerning dust exposure and dust diseases which had already been admitted in proceedings before the Tribunal may, with leave of the Tribunal, be received as evidence in subsequent proceedings, whether or not the parties are the same. There has, not surprisingly, been an accumulation of this kind of evidence over the years since the commencement of the Act and there can be little doubt that the ability to admit it makes a substantial contribution to the efficient and less costly despatch of litigation. Most of this history is not really disputed or, if there are disputes, this can be determined by reference to the differences in opinions that have already been the subject of evidence. There is a considerable reservoir or archive of material within the Tribunal to which litigants, both plaintiffs and defendants, can have resort. 18 Mr McIntyre SC for Mrs Stavar points out that the proposal of Caltex to litigate the issue of its duty of care to Mrs Stavar may depend upon the argument that it was not foreseeable at the relevant time that exposure to the small quantities of asbestos that might result from personal contact or from shaking or laundering of clothes was sufficient to cause asbestosis disease. Knowledge about asbestos related disease during the relevant period, 1964 to 1980, has been the subject of extensive evidence before the Tribunal and there is much that would be material to the litigation of the proposed defence. This will not obviate, of course, the need to call specific expert evidence but the availability to the parties of previous evidence about the issues will not only assist in the conduct of the litigation in the Tribunal but result in considerable costs savings. This assists both protagonists. Furthermore, as a specialist tribunal, the Tribunal is already generally familiar with much of the relevant material and its comprehension and resolution of the factual issues thereby much assisted. It is but commonsense, I think, to acknowledge that the combination, in particular, of these two aspects of the conduct of litigation in the Tribunal enhances the efficiency of disposition by considerable degree. 19 Also relevant is the prohibition in s 25B, without leave of the Tribunal, of litigating issues of a general nature which have already been determined in proceedings before the Tribunal, whether or not those proceedings are between the same parties. 20 In James Hardie and & Co v Barry (2000) 50 NSWLR 711 at 383 Mason P observed that the inquiry as to procedural and practical differences between the specialist tribunal on the one hand and the Supreme Court of Queensland on the other is "a most invidious one" and thus confined his consideration to the statutory provisions found in the Dust Diseases Tribunal Act having no Queensland counterpart. In this respect, his Honour said (at 384) - "[111] In light of the live issue of general causation leaving the case in the Tribunal will significantly benefit the interests of justice generally. Each party and the judicial system of Australia taken as a whole will benefit from the savings directly attributable to the powers which the Tribunal has, but the Supreme Court of Queensland lacks, to allow evidence tendered in earlier proceedings to be tendered in the instant proceeding, subject to necessary procedural safeguards. This will dramatically shorten proceedings even if s 25B is not invoked. [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…They are also factors to be weighed against transfer as they have the clear capacity to assist both the defendants and the judicial system of Australia in the quick, just and cheap resolution of the present dispute …" 21 In Barry all parties asked the Court to proceed on the basis that s 25B would be applicable if the proceedings continued in the Tribunal. As to the significance of the potential application of this section, Spigelman CJ said that it should be characterised as "substantive" rather than "procedural" and this "modification to the substantive law [of the place of the tort] occasioned by s 25B is a material factor to be considered in determining the issue of 'the interests of justice'." The Chief Justice considered that the "extent of the modification of the substantive law of the tort which would thus be occasioned, if the Court refused the application for a transfer, is a matter which weighs heavily in the balance in favour of a transfer": 50 NSWLR at 363. However, the question needed to be evaluated in the context of the issues in the particular case. In Barry a particular decision of the Tribunal in another matter was determinative of an issue in the case sought to be transferred. But it was not suggested that a decision about that matter in those proceedings would be any different to that which had been previously made by the Tribunal. It is clear that the Chief Justice thought that this was a consideration that lessened the significance of the s 25B issue. 22 In the present case, no particular earlier decision of the Tribunal was referred to by either party though Mr McIntyre submitted that it is likely that there are several of relevance because (as I understand it) the asbestos to which Mrs Stavar was exposed was crocidolite asbestos and there was for some time an issue litigated in and determined by the Tribunal whether asbestos of this type as distinct from amphibole types could give rise to asbestos disease. However, Caltex has not attempted to submit that the Supreme Court of Queensland might come to any different view to that of the Tribunal about this question nor, indeed, that it anticipated that s 25 would come into play at all. Rather, Mr Parker focused on the potential for a dispute, if the matter is heard in the Tribunal, about the applicability of s 25B and s 25(3) and thus, it might be, that some time will be taken up with determining this question with some uncertainty of outcome. 23 In Schultz (221 CLR at 444) Gummow J referred to the "advantage for the ready resolution of litigation that the lex fori and the lex loci delicti coincide, and debates as to the classification of statutory provisions as substantive or procedural in nature, cannot arise". In relation to this point, Callinan J said (221 CLR 488-489) - "[242]…It is certainly not immediately apparent whether all of the sections of the Tribunal Act which I have noted are either exclusively substantive or exclusively procedural. It seems to me that ambiguity in this regard is a matter highly relevant to a decision under the Cross-Vesting Act whether to allow the proceedings to continue in the Tribunal. The advancing of arguable contentions both ways is likely to lead to the sorts of delays, uncertainties and expense which the Tribunal Act is said to have been designed to avoid."

I would not be so bold as to suggest that the issues concerning the applicability of s 25(3) and s 25B are straight forward, but they do not require, as it seems to me, extensive argument. 24 As will have been seen from the above, there is much that can be said in favour of the opposing contentions made by the parties. Absent Mrs Stavar's prognosis, I should think that the balance favoured transfer to the Supreme Court of Queensland. However, to my mind, the overwhelming consideration in this case is that prognosis. The state of the evidence of Caltex is that some adjustment might be made to the listing of the action were the matter to be hears in the Queensland Supreme Court but the extent to which this could be done is left uncertain. The Listing Manager of the Court - albeit subject to a judge's different order - has stated that the case would not be heard until the latter half of the year. The uncertainty of obtaining an early date must be contrasted with the position in the Tribunal. Not only is the availability of an early date important but that it can be fixed in the near future should also be seen as relieving Mrs Stavar, at least, of anxiety about when her case will be heard. It is obvious also that the more ill Mrs Stavar becomes, the more difficult will it be for her to give evidence and instruct her legal advisers about factual issues as well, of course, on questions of settlement. Although I would not go so far as to say that the argument between the parties is a jurisdictional quibble, yet it pales in significance when compared with the imperative need for an early hearing in the absence of a mediated settlement. Moreover, the anxiety which must necessarily attend any delay in the hearing of Mrs Stavar's stay is a cruel imposition on a person who does not have long to live. It is perhaps not often the case that the interests of justice include humane considerations, but they plainly do in applications of the present kind. Given the time that has already passed since initial diagnosis, I think that the interests of justice manifestly favour continuing the hearing of this matter in the Tribunal, where early hearing dates are undoubtedly available. 25 Accordingly, I reject Caltex's application to transfer this matter out of the Dust Diseases Tribunal. **********

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.