Ewins v BHP Billiton Ltd [2005] VSC 4

Supreme Court of Victoria|2005-01-12|Before: GILLARD J

CROSS-VESTING APPLICATION - Relevant matters - Weight to be attached - Cross vested to Supreme Court of South Australia.

This is the return of a summons issued in the proceeding by the defendant, seeking an order that the proceeding be transferred to the Supreme Court of South Australia pursuant to the provisions of s.5(2)(b)(iii) of the ("the ").

The plaintiff, William John Charles Ewins ("the plaintiff") is retired, aged 71 years and resides in the state of South Australia. During the period from 15 September 1948 to 28 December 1956 and maybe for a further period after 19 June 1957, he was employed by the defendant BHP Billiton Limited ("BHP") in a variety of occupations at its Whyalla, South Australia, shipyards. The plaintiff alleges in his statement of claim that he was employed until 1963. BHP admits in its defence that he was employed from 15 September 1948 to 28 December 1956 and from 15 June 1957 to an unknown date. He is now suffering from malignant pleural mesothelioma. It is said that he was exposed to asbestos materials including asbestos dust and fibre during his employment with BHP.

The defendant, BHP, is a large well known Australian public company which during the period from at least 1948 until 1978 operated at Whyalla in South Australian shipyards. Its registered office is in Melbourne, Victoria, and it maintains offices in each of the State capitals, including Adelaide.

On 21 December 2004, the plaintiff instituted a proceeding in this Court by writ against BHP claiming damages for his injuries, pain and suffering and medical and like expenses. The plaintiff's cause of action is common law negligence.

BHP filed its defence on 30 December 2004, and in addition to putting the plaintiff to his proof, BHP denied that it was negligent, and baldly asserted that the plaintiff was not entitled to the relief sought. The defendant does not specify the reason why the plaintiff is not entitled to relief. In addition it was alleged that any tort, which was denied, took place in South Australia, and that the plaintiff's claim was statute barred by reason of the operation of s.36(1) of the Limitations of Actions Act 1936 (SA).

It is clear from the statement of claim, and also from the affidavit material filed, that the plaintiff's cause of action arose in the State of South Australia. I do not read the defence at present as pleading that the applicable law in the proceeding in this Court is South Australian, save and except for the limitation defence. As the defendant BHP has not generally pleaded foreign law, other than the limitation defence, the law which will apply in this proceeding in this Court is Victorian law. Of course it would be open to BHP to seek leave to amend its defence to plead that the substantive law was South Australian law. In his statement of claim, the plaintiff asserts that if necessary he will apply to extend the time to institute this proceeding pursuant to s.48 of the South Australian Act. There is no doubt that if the proceeding was to continue in this Court, this Court could entertain an application by the plaintiff to extend time.[1] According to the evidence, the plaintiff first became aware that he may have an asbestos type disease in March 2003, but it was not confirmed as mesothelioma until early December 2004.

There is no doubt that the plaintiff has regularly invoked the jurisdiction of this Court. BHP is registered in this State and its head office is in this State. BHP has filed a Notice Of Appearance on 23 December 2004. Clearly, this Court has jurisdiction to hear the proceeding. The evidence before the Court is that the plaintiff's life expectancy is in the order of six months. What is sought by the plaintiff is an order that this Court expedite the proceeding and conduct a hearing within six weeks. The plaintiff's solicitors filed a summons on 22 December 2004 seeking orders for directions for the interlocutory steps which are, according to the proposed timetable, to be completed by 4 February 2005, and also for a speedy trial. These orders are invariably made in this Court in cases such as the present. Once the interlocutory steps are completed, mediation takes place before an officer of the Court and failing settlement a trial date is fixed. Based upon past experience a trial could take place in this Court in the last two weeks of February 2005.

On 23 December 2004 BHP filed a summons seeking an order pursuant to s.5(2)(b)(iii) of the Act that the proceeding be transferred to the Supreme Court of South Australia.

(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 -

(i) . . .

(ii) . . .

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."

The Act was passed in 1987 in this State and similar Acts were passed in the various States and Territories. Since 1987 many applications have been made pursuant to s.5(2) of the Act and also in other States and Territories pursuant to the common legislation. Whether or not a court should grant an application depends upon "the interests of justice". In the past courts have identified relevant criteria to take into account in determining the application. There is no right of appeal of a decision made by this Court on an application such as the present.[2] However, there is a right of appeal from a single judge to the High Court pursuant to s.73(ii) of the Constitution, subject to leave.

Recently the High Court considered an appeal concerning the NSW Cross-Vesting Act from orders made by Sully, J. sitting in the Supreme Court of New South Wales. The case is BHP Billiton Limited v Trevor John Schultz & Ors[3].

There has been some controversy in the past as to the relevance of the plaintiff's choice of forum. It seemed to be accepted by some judges that it was a relevant matter of substance. Sully, J. placed some reliance on it in the Schultz case. He refused the transfer. The High Court held that it was an irrelevant factor and accordingly His Honour's decision was wrong.

The High Court was divided in respect to the final outcome of the appeal. Mr Schultz had instituted a proceeding in the Dust Diseases Tribunal of New South Wales. Application was made to the Supreme Court of New South Wales for an order that the application be removed from the Tribunal to that court and then transferred by that court to the Supreme Court of South Australia. It appears that Mr Schultz, between 1957 and 1964 and between 1968 and 1977, worked for BHP at Whyalla in South Australia. He commenced proceedings in the Tribunal claiming that he was suffering from an asbestos related illness caused by exposure to asbestos during his period of employment. Sully, J. refused BHP's application. BHP appealed to the High Court.

All of the members of the High Court were of the view that Sully, J. was in error in giving weight to Mr Schultz's choice of forum. In the result, Gleeson, C.J., McHugh and Heydon, JJ. were of the opinion that the application should be remitted back to the Supreme Court of New South Wales to decide the application in accordance with the reasons for judgment of the Court. However, the other four judges were of the opinion that the High Court should decide the application to transfer. They held that the interests of justice required the transfer of the proceeding to the Supreme Court of South Australia. Gummow and Callinan, JJ. listed a number of factors which demonstrated the appropriate forum was South Australia. Kirby, J. and Hayne, J. agreed. The decision by the majority is one of fact. The judges' statements identifying relevant factors and the importance of the various factors are authoritative, but nevertheless it is trite to observe that each application must be considered on its own facts. It is rare to find the facts of two cases being the same.

Since the enactment of the common legislation throughout Australia, many judges have considered applications pursuant to s.5(2)(b)(iii). When application is made pursuant to that provision, the question for consideration and determination is - is it in the interests of justice that the proceeding be determined by another Supreme Court - in this case the Supreme Court of South Australia? The statutory provisions require the Court to ensure that cases are heard in the forum dictated by the interests of justice. That is where do the interests of justice lie?

In the judgment of Gleeson, C.J., McHugh and Heydon, JJ. in the Schultz case, ("the joint judgment") their Honours stated:

"Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice ... If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court shall transfer the proceedings to that other court. 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."[4] (Emphasis added)

It is clear from that passage and what Gummow, J. said at paragraphs 62-63, that the determination is not an exercise of a discretionary judgment. In the past some judges have referred to the exercise being one of discretion but it is clear from the High Court's decision in Schultz that it is not. Gummow, J. said at para.62:

"The requirement to order transfer thus is imperative once the identified criteria appear to a Supreme Court. No question of discretion arises."

His Honour relied upon the concluding words of s.5(2)(b) which require the Court, to whom the application is made, to transfer the relevant proceeding to another court if the interests of justice so dictate. The use of the word "shall" made that clear.

Another issue which provoked controversy in the early days of the legislation, is the question of burden of proof. One of the first cases considered by a Court of Appeal was the decision of Bankinvest AG v Seabrook & Ors[5]. It is a decision of the New South Wales Court of Appeal. In that case it was argued that the applicant had the burden of persuading the Court that a transfer should take place. At p.727, Rogers, A-JA. had this to say:

"The only lodestar that a judge may steer by is, what do the interests of justice dictate should be done? It is inapt to speak in terms of onus. Bearing in mind that the court may make an order of its own motion the language of onus being discharged is inapplicable."

The reference to the Court making an order of its own motion is a reference to s.5(7). His Honour's observations were obiter dicta and Kirby, P. (as he then was) although agreeing generally with what Rogers, A-JA. had to say, reserved his opinion whether an onus was on the applicant for a transfer. Since that decision, many judges throughout the Commonwealth have held that there is a burden resting on an applicant where an application is made to transfer a proceeding.[6]

In James Hardie & Co Pty Ltd v Barry[7] Mason, P. was of the view that there was a persuasive onus resting upon an applicant where the transfer was not ordered on the Court's own motion. He went on to observe "fortunately, onus will seldom if ever be determinative at the end of the day."[8]

In Schultz's case, Gummow, J. echoed the same sentiments of Rogers, A-JA. when he said at para.71:

"Section 5(7) indicates that it is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof."

His Honour referred to what Rogers, A-JA. said. Although Hayne, J. agreed with His Honour, no other judge made reference to the burden of proof. What His Honour said does not represent the views of a majority of the High Court, and although persuasive, I am not prepared to accept that it represents the law. Many judges have referred in the past to the burden and the general view is that an applicant does carry a burden. However, as in most contested litigation where the burden of proof rarely plays a part, in the vast majority of cases seeking a transfer it will seldom be of any importance. Nevertheless, where the factors favouring a transfer and those against are equal, the burden of proof will have a part to play.

One searches in vain through the provisions of the Act, to determine the legislative intention as to what are relevant matters to take into account in determining an application. It has been emphasised in the past that the application should be speedily dealt with, and not be bogged down by extensive affidavit material and debate. Street, C.J. in the Bankinvest case, at p.714 stated:

"In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon considerations of the interests of justice ... 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 more appropriate to hear and determine the substantive dispute." (Emphasis added)

His Honour's observations were quoted with approval in the joint judgment in Schultz at paragraph 13.

Despite the lack of legislative identification, the cases over the years have established a number of factors which are relevant to the issue. The legislature does indicate that the interests of justice are met by the Court which is the "appropriate court."[9] The Courts have held that the "appropriate court" is the "natural forum" which is based upon the connecting factors to that forum. Reference has been made to the House of Lords' decision of Spiliada Maritime Corp v Cansulex Ltd[10].

Courts in the past have adopted an approach of determining what is the natural forum being the appropriate court based upon the connecting factors to that forum. Schultz's case supports that approach.

In the joint judgment in Schultz, their Honours pointed out that it was difficult to lay down guidelines as to the weight that should be attached to any particular factor in determining an application. It is trite to observe that each application must be decided in accordance with its own particular facts. At paragraph 18 in the joint judgment, their Honours said:

"Reference is sometimes made to one forum or another being the 'natural forum'. Such description is usually based upon a consideration of 'connecting factors' described by Lord Goff in Spiliada as including matters of convenience and expense, such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction. Lord Templeman describes such factors as 'legion', and said that it was difficult to find clear guidance as to how they are to be weighed in a particular case."

Their Honours then went on to say this at paragraph 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 would ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of costs, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications."

Factors which have been identified as being relevant in an application such as the present are:

(i) In a tort case, the place where the wrong occurred.

(ii) Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.

(iii) The convenience to the parties and witnesses. However in this day and age this factor may not carry substantial weight, because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because of the provision of evidence by audio visual link.

(iv) The law governing the proceeding.

(v) The experience of a particular Court and its ability to provide an efficient and speedy trial, for example a Court with particular evidentiary and procedural rules hearing particular types of cases.

(vi) The condition of a party, for example, in a personal injury case where the life expectancy of the plaintiff is limited requiring a speedy outcome.

The question of the state of health of a plaintiff and the necessity of an early hearing was adverted to in a joint judgment at paragraph 15. Their Honours said:

"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 were near to death, and, in an application such as the present, it appeared to 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 interests of justice, bearing in mind the condition of many sufferers from dust diseases."

In summary, what is the appropriate court is the natural forum based upon connecting factors. The preponderance of connecting factors in any particular case with one forum identifies that forum as the natural forum but there may be a significant connecting factor to another forum which may swing the balance to the competing forum. That is made clear by the judgments of the High Court in Schultz and the choice of a forum which can deliver speedy justice in cases where the plaintiff is suffering from a life threatening disease is relevant and is a matter of substance. As the joint judgment made clear, it is right to attach importance to the procedural and evidentiary advantages offered to all parties in a particular court. It is relevant to have regard to a particular court's specialisation and experience in a particular field.

The majority in Schultz's case ordered a transfer of the proceeding to the Supreme Court of New South Wales and a transfer to the Supreme Court of South Australia. Their Honours' reasoning are persuasive in any application involving a personal injury claim for damages arising out of tort. Gummow and Callinan, JJ. identified factors which pointed to the natural forum being the Supreme Court of South Australia. Kirby, J. agreed with both Gummow and Callinan, JJ. and Hayne, J. agreed with Gummow, J.

The decision reached by the majority establishes that as a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort. What their Honours decided supports what Spigelman, C.J. said in James Hardie & Co Pty Ltd v Barry[11] where his Honour said:

"To determine which court is, in the interests of justice, the appropriate court, it is necessary to enquire, 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 ... 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."[12]

Clearly the place of the tort is a matter of significance and substance. Gummow and Callinan, JJ. make telling points when each referred to the avoidance of debate as to the law to apply and the sometimes difficult questions of whether the law is substantive or procedural. Gummow, J. identified the following issues in that case which required the transfer of the proceeding to South Australia:

(i) The place of the tort was South Australia;

(ii) The Courts of that State provide the forum which gives effect to the reasonable expectations of the parties;

(iii) The coincidence of the lex fori and the lex loci delicti will avoid debates concerning substantive and procedural law;

(iv) To a significant degree the witnesses at trial would come from South Australia and in any event audio visual link could avoid inconvenience to others.

Callinan, J's reasons are stated in paragraph 262 as follows:

"It seems to me that this is a clear case of cross-vesting. The Supreme Court of South Australia is well equipped to handle the case. It can do equal justice between the parties. It can do it by applying South Australian substantive and procedural law without the necessity to distinguish what is substantive and what is truly procedural in the unique, and far from the unambiguous relevant provisions of the Tribunal Act. It will not need to decide any constitutional issues."

His Honour also made the point in paragraph 259 that the South Australian Court was "the natural forum", that the South Australian Court was best equipped to deal with the issues, the events occurred there, the parties have had and are likely to have a presence there, and proximity to the Court which would be likely to lead to both expedition and savings in expense. He added:

"But of at least equal importance to all of these is the fact that the events giving rise to the claim were at the time subject to, and regulated by the law of the jurisdiction where they occurred, and in respect of the evaluation of which the Court of that place should be the most experienced and efficient. One relevant law will usually be the law relating to insurance. Policies are likely to have been implemented on the basis of the law there relating to damages, remedies, courts and appeals. In other ways also, with respect, for example, to relations between employers and employees, revenue laws and commercial laws, and compliance with safety and environmental standards, it may be assumed that the parties have organised their affairs with an eye to the State laws governing them."

His Honour also stated that the South Australian Court has experience in personal injury cases and assessments of compensation, and that it would be expected to move the procedural gears as effectively as any other Court. His Honour also observed the comparative expense would only be significant if grossly disproportionate between the hearings in either State. It is often very difficult to make any judgments on the question of expense, especially legal expenses. Witnesses other than experts can be moved around Australia relatively cheaply and with little inconvenience in this day and age, and of course there is the availability of audio visual link in any event. Actual legal costs will depend upon many factors, some of which are the seniority of the barristers concerned, the length of the proceeding, and the various steps taken by the lawyers in preparing the case.

The matters that I have referred to as being relevant to guide the Court, are but a list of those that have been considered relevant in the past. It would be both unwise to attempt and impossible to state an exhaustive list of relevant matters. Equally, the weight that should be attached to any particular factor must vary from case to case. Further, factors that may have been of some importance 10 or 20 years ago may not be so important now because of changed circumstances. In particular, I refer to the questions of a party wishing to use its or his own lawyers, and the ability of lawyers to practise in another State without difficulty. Also the ability of being able to present a case on behalf of a client in another State, by preparing it in the home State and moving to the other State. The facility of taking evidence by audio visual link is a recent innovation.

At the invitation of the Court, the parties identified the factors which they relied upon which pointed to the appropriate forum. The applicant identified the following factors as strongly pointing to the appropriate forum being the Supreme Court of South Australia:

(i) The place of the tort is South Australia. What flows from this, is that any difficult questions of the law to be applied would be avoided because South Australian law would apply, that is, statute substantive and procedural. As already noted, BHP has not pleaded that the law to apply in the proceeding in this Court is South Australian law, save and accept for taking the limitation defence. As I read the defence, if the matter was to proceed in this Court, the law which would apply in respect of liability and damages if the limitation defence is overcome would be Victorian law. I raised this in the course of argument, and neither counsel demurred from that conclusion. I did ask counsel whether there were any statutory provisions in South Australia which would be relevant to questions of liability and damages and which were in any way different to Victorian law, and I was informed there was not. As I have already stated, an application to extend time under the South Australian Act could be heard by this Court. However, the point does remain that the litigation of the dispute in the Supreme Court of South Australia would avoid any problems associated with applicable law if they were raised.

(ii) The plaintiff resides in South Australia. Although the plaintiff's solicitors' affidavit is somewhat vague about the plaintiff's background, it is clear that he resides in South Australia even though during his working life he lived in other parts of Australia.

(iii) The plaintiff is being treated in South Australia by South Australian doctors and it is anticipated that they would give evidence at trial. Of course some of these witnesses could give evidence via audio visual link, but I would think there would be a substantial cost involved in bringing over to this State a South Australian doctor to give evidence.

(iv) BHP, although registered in this State, has offices in South Australia and carries on business in that State.

(v) BHP has engaged a medical practitioner to examine the plaintiff and prepare a report. He practises in South Australia and will be seeing the plaintiff in February 2005. I do not place any real weight on this fact, because it would be open to BHP to engage medical practitioners in this State. To date it has not engaged a medical practitioner.

(vi) In addition to the plaintiff giving evidence, it would be expected that members of his family and close friends would give evidence in respect to damages including evidence involving patient care and the effect on the plaintiff of the debilitating disease and impact on his life. I accept that most of these witnesses would come from South Australia. Both parties seem to be shy about identifying witnesses on liability. I would expect that the plaintiff's solicitors over the years have built up a vast knowledge of the effects of exposure to asbestos and the state of knowledge of those who used asbestos products at the relevant time. I would have thought it would not have been difficult for the plaintiff's advisers to inform the court as to the witnesses who would be called on liability and their residence. Equally, I would expect BHP to have much the same knowledge of these matters and, again, I am surprised that BHP has not called any specific evidence concerning witnesses who may be called in respect to liability and where they reside. There is a veiled suggestion that if witnesses are alive they most probably would live in South Australia. I would be speculating to reach that conclusion. The Whyalla shipyards closed in the year 1978. Accordingly, I place no weight on the location of witnesses on liability on either side. The fact is that I am not persuaded by either party as to where such witnesses reside at present.

(vii) It is said that the cost of bringing the proceeding in this State was probably more than bringing the proceeding in South Australia. Indeed, a deponent who swore an affidavit on behalf of BHP, Scott Andrew Hey, gave evidence that the reason why BHP wished to transfer the proceeding to South Australia was because it was "more cost efficient". In particular he emphasised that Court proceedings being heard in Sydney or Melbourne were usually more expensive than Court proceedings in South Australia. Although I note his evidence, I am not prepared to conclude that the actual legal costs would be greater if heard in Victoria than in South Australia. Indeed, Mr Gordon of counsel on behalf of the plaintiff highlighted one item in the cost scale of both Courts, which showed that the attendance of the solicitor was $250 an hour in South Australia whereas it was $216 per hour in this State. It is difficult to make any assessment because it does depend upon a variety of factors as I have already pointed out. I am not prepared to say that on a cost basis it would be much greater in this State. In that respect I refer to and adopt what Callinan, J. said in the Schultz case, that a cost comparison was of little weight unless it was established that they would be grossly disproportionate. It cannot be denied, however, that to move lawyers, parties and witnesses from South Australia to this State would add expense and as Mr Parker on behalf of BHP pointed out, this has been recognised by the fact that the solicitors for the plaintiff were prepared to meet some of the costs. Whilst I do accept that to move expert witnesses to this State may involve an increase in expense, I am not prepared to conclude that it would be much greater than bringing the proceeding in South Australia.

(viii) The lawyers acting for the parties are located in Adelaide. It is correct that the plaintiff is represented by Slater & Gordon through its Adelaide office. Equally Piper & Alderman have an office in Adelaide, indeed it is said to be their principal office. However, in this day and age it is not difficult to prepare a case in one State and then move to the other State for the purposes of the hearing. I do not place any real weight on the location of lawyers. Indeed, Slater & Gordon has a big presence in this State and also Piper & Alderman have an office in this State. The latter appear at the moment to be conducting the litigation from Sydney.

The plaintiff's counsel, Mr Gordon, has identified a number of factors which he submits connect the proceeding with this State. They are:

(i) That BHP is registered in this State and its corporate headquarters are in Melbourne. It appears to be conducting this litigation from its office in Melbourne, although at the moment it is using solicitors from interstate.

(ii) The case can be heard more expeditiously in this Court than the Supreme Court of South Australia and if this is so, and the plaintiff succeeds, he will have funds to provide more extensive treatment which may prolong his life, he will be comforted to some extent by the fact that the litigation is over and, finally, that he will have peace of mind as to the resolution of his private and family affairs prior to his death. It will be necessary to further consider this aspect.

(iii) That a witness, Dr Kilpatrick, who practises in this State and who is an industrial hygienist will obtain an occupational history from the plaintiff and his evidence will be produced at trial. The engagement is a decision made by the plaintiff's solicitors. I do not expect that the cost involved in obtaining instructions and providing a report will be any different whether the proceeding is heard here or in South Australia. If heard in South Australia, no doubt he could give his evidence via audio visual link. I would not expect that that would involve any expense of substance.

It is clear that the main factor relied upon by the plaintiff is that his lawyers are of the opinion that the case could be heard and determined quicker in this Court than in the Supreme Court of South Australia. The evidence before the Court is that the plaintiff has a life expectancy of the order of six months. Much was made by the plaintiff's lawyers that this Court has a proven track record of dealing expeditiously with personal injury claims such as the present. That is quite correct. In the present proceeding, the writ was issued on 21 December 2004, and on 22 December the plaintiff's solicitors issued a summons seeking a tight timetable for the interlocutory steps. The timetable covered the period from 24 December 2004 until 7 February 2005. In accordance with usual practice, it would be expected that the order for directions would be made and strictly enforced. Indeed, counsel for BHP made it very clear that it would co-operate in completing the interlocutory steps in accordance with any such order, and this would apply whether the proceeding was heard here or in South Australia. One of the orders sought was an order that there be a speedy trial, and in the normal course of events that order would be made. What would then occur on and after 7 February 2005 would be a mediation before an officer of this Court and failing settlement a trial which I would expect could be heard in the last two weeks of February 2005. Mr Gordon on behalf of the plaintiff made much of the fact that BHP in the past in similar cases had consented to the directions orders being made, was prepared to litigate the issues in this Court, and the cases settled promptly. He observed in the present application that it was difficult to understand why BHP wished to move from a Court with a proven track record. As he submitted, surely it is in the interests of the parties and public to finalise the litigation without delay? He asked, "Why not proceed in this court as in the past? The system works well and in the interests of all parties." The reason given by BHP was cost efficiency, but having said that, it is a matter for it whether or not it fights this case on liability and/or damages. In my view it is a question it is entitled to consider. Although in the past similar proceedings have been settled, there is no guarantee that this one would settle. I find as a fact, that this proceeding could be expeditiously dealt with in this Court and I would expect to be finalised by the end of February 2005.

Mr Gordon submitted that the Supreme Court of South Australia did not have a proven track record. In his written submissions he stated:

"He (the plaintiff) relies solely on the fact that he is likely to have his case heard more quickly in the Supreme Court of Victoria than the Supreme Court of South Australia. This will enhance the prospect that the matter will be resolved in his lifetime, that he will have, for a time, for treatment or other purposes the use of any damages he might be awarded, and he will have the peace of mind attendant upon the resolution of his affairs before his death."

South Australian solicitor, Adrian Meegan, swore an affidavit on behalf of the plaintiff and pointed out that few cases in this area had proceeded to judgment in the Supreme Court of South Australia, that he practised in this area and that it was his practice to refer cases interstate. I accept that the South Australian Supreme Court has not the proven track record of this Court, but nevertheless I am satisfied that the Court would be able to provide the same efficiency and expedition as this Court in this proceeding.

This is apparent when the steps necessary to bring the proceeding to trial are identified and considered. First, the application for a tight and speedy timetable for the performance of interlocutory steps. This involves an application to a judicial officer and I would expect that the orders would be made by consent. BHP has assured me that it would consent to such a timetable. This step does not involve the judicial officer putting other cases to one side, nor does it involve much court time. That observation applies wherever the proceeding is heard. The next step is mediation. I am satisfied that mediation could take place expeditiously in South Australia and again BHP have assured the Court they would co-operate. The South Australian court procedure requires a settlement conference to be held prior to the final directions hearing. In my view mediation can be achieved, either through some court administered process, or before an independent mediator. Whether or not the proceeding settles depends very much upon the attitude of the parties to the question of settlement. I have no doubt at all that mediation could properly be conducted in South Australia, efficiently and as expeditiously as in this Court. That step would not delay the proceeding to any extent. It does not involve any significant court time, if at all.

That brings me finally to what I think is the real issue in this present application, and that is whether or not the Supreme Court of South Australia could provide a judge to hear and determine the matter expeditiously. In Schultz's case the joint judgment refers to the limited life expectancy and the relevance of that factor and the importance whether a Court can provide a hearing and determination in the lifetime of the plaintiff. Here the plaintiff has a life expectancy of six months.

There is evidence before me of a conversation with Mr Errol Surman, Manager, Registry Services of the Supreme Court of South Australia. I am satisfied on that evidence that the application could be made to a Judge in the Chamber List. If the judge was persuaded the matter was urgent he would consult Mr Surman to have the matter listed. If no dates were available the judge would approach the Chief Justice who would make alternative arrangements concerning the allocation of a hearing date. It appears that the Court resources which have been available since the beginning of this week are available to the parties. He assured a solicitor, Ms Prince, who swore an affidavit on behalf of BHP, that if a proceeding had to be heard expeditiously the Court could accommodate it. In my view the urgency of this matter is obvious. I would expect that a judge would be made available to hear the proceeding as soon as possible in South Australia. I have no doubt that that Court would address the concerns of the plaintiff and meet them. Indeed, to suggest otherwise casts an unwarranted aspersion upon the Supreme Court of South Australia to deal with urgent matters. I would expect, in accordance with the views expressed by Callinan, J. that the Supreme Court of South Australia "could ... shift the procedural gears" as effectively as this Court. The only matter in issue is whether it would grant a speedy trial and I have no doubt that it would upon application being made. BHP has assured this Court that it would co-operate in every way to have the matter brought on as soon as possible.

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 difficult 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 underway, that BHP carries on business in South Australia, that most of the witnesses on 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. In my opinion BHP has established that the appropriate court for the hearing of this proceeding is the Supreme Court of South Australia. I accordingly order that the proceeding be transferred to the Supreme Court of South Australia.

Subject to any submissions by counsel I propose to make the following order:

That this proceeding No. 9721 of 2004 between William John Charles Ewins and BHP Billiton Ltd be transferred to the Supreme Court of South Australia.

[1] See Dickin v BHP Billiton Ltd & Ors [2004] VSC 215 and Reid v Agco Australia Ltd & Ors [2000] VSC 363.

[4] See para.14 and also Gummow, J. at para.77.

[6] See for example Chapman v Jansen (1990) 100 FLR 66 (Full Court of the Family Court), Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] 1 WAR 531, McKee v Rudy Van Haften & Anor [2001] VSC 251 at para.18.

[9] See para.(c) of the preamble and s.5(2)(b)(C).

[10] [1987] AC 460. See observations of Rogers, A.J.A. at pp.727-79 in the Bankinvest case and the joint judgment in Schultz at paras.18-19.

[12] Quoted with approval by Kirby, Jl in Schultz at paragraph 165.

Courts (Cross-Vesting) Act 1987

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)