HANSEN FAMILY INVESTMENTS & ANOR v. LATZ [2005] NSWSC 454

1 HIS HONOUR: On 29 April 2005, Robert Douglas Latz commenced proceedings by way of Statement of Claim filed in the Dust Diseases Tribunal of New South Wales (109 of 2005). The cause of action against the first and second defendants is framed in negligence and alleges that he, in the course of his employment between about 1955 and 1965 and about 1968 and 1978, was exposed to asbestos dust and fibre. 2 On 2 May 2005, the proceedings were listed for directions before the President of the Tribunal, his Honour Judge O'Meally. His Honour appointed the following day, Tuesday 3 May 2005, to take evidence from Mr. Latz and such other evidence as appropriate. 3 On 3 May 2005, evidence was taken by O'Meally, J. in South Australia. The evidence was taken at the plaintiff's home. According to his solicitor, Alexander Robertson Stuart (affidavit sworn 6 May 2005), the plaintiff's presentation during the course of evidence was of a very ill person and is dependent on 24 hour bottled oxygen. 4 On Tuesday 3 May 2005, the evidence in chief of Mr. Latz's partner, Ms. Penny Hadley was taken by his Honour Judge O'Meally. On the same day, his Honour conducted a view of premises of Mr. Latz being partly constructed premises. The premises relate to one aspect of the claim brought by Mr. Latz. 5 On 4 May 2005, the plaintiff companies filed a summons in this court seeking orders pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). 6 The proceedings were heard by me on Monday 9 May 2005. That summons was heard with a summons seeking similar orders in proceedings No. 11785 of 2005 concerning Mr. Leonard Bendyk. 7 On Tuesday 10 May 2005, I delivered judgment dismissing the summons in both proceedings and making an order for costs, in this matter, in favour of Mr. Latz. 8 Immediately following delivery of judgment, counsel for the plaintiffs to the summons, the applicants (the defendants in the proceedings before the Tribunal) sought a stay order in respect of my judgment. Mr. Jobson of counsel advised that he had only at court given notice of the application. I proposed standing the matter down until 2.00 pm on 10 May 2005, however, by reason of the availability of counsel, the proceedings were listed before me today, at 9.30 am. 9 In considering an application for a stay, a number of issues have been raised. Firstly, a point of "jurisdiction" was raised by the defendant/respondent to the summons and to the stay application. This relied upon the fact that the outcome of the proceedings on the summons for a transfer of the proceedings brought by the applicants did not involve the grant of any relief or remedy for which a stay may be granted. 10 Counsel for the applicants for the stay has said that they seek a stay order for the purposes of an Application for Special Leave to appeal in the High Court of Australia which they intend to file, observing that a similar Special Leave Application has been filed in the High Court (No. S136 of 2005) in the matter of BHP Billiton Limited v. Utting & Anor. The judgment in respect of which special leave has been sought in those proceedings is that of Simpson, J. in BHP Billiton Limited v. Utting & Anor [2005] NSWSC 260 delivered on 1 April 2005. I have been provided by the applicant's solicitors with a copy of the Special Leave papers filed in that matter. 11 I have been advised that the Special Leave Application will be heard by the High Court on 27 May 2005 and, in those circumstances, the stay is sought to enable a Special Leave Application to be filed by the applicant with a view to linking it with the scheduled Special Leave Application in the matter of Utting. 12 I do not consider that this application should be decided on the point of "jurisdiction" that has been raised by the respondent. The question in those circumstances is whether, in the circumstances of these proceedings, a stay order ought be made. 13 As a matter of general principle, stay orders are not granted as of right and the power to make such orders is exercisable by the court whenever the requirements of justice so demand. Its exercise is subject to some restraint: The Annot Lyle (1886) 11 PD 114, 116. 14 There is authority which indicates that, if there is a reasonable ground of appeal and if not making the order sought to stay the execution of a decree or the distribution of a fund an appeal would be rendered nugatory, then it is the duty of the Court to interfere and suspend the right of the party who has established his rights. That applies where such an action has been dismissed: Polini v. Gray (1879) 12 Ch D438, 446. The present case is, of course, different from the subject matter of that case but it is supportive of the proposition that a stay may be granted in some circumstances involving a dismissal of proceedings. If a stay order were made with respect to my orders dismissing the application, the effect, for practical purposes, would be similar to the situation of the cross-vesting application remaining extant. 15 One matter which favours the applicants, of course, is that if a Special Leave Application could be heard later this month, then any stay would only operate for a short period of time whilst the applicants exercise the opportunity of having this matter made the subject of a Special Leave Application. 16 On the other hand, the proceedings, at least so far as Mr. Latz is concerned, arise in extraordinary rather than ordinary circumstances. I refer in this respect to the medical evidence which pertains to his malignant mesothelioma and current condition arising from that disease. Mr. Stuart's affidavit attaches a copy of the report of Dr. Keefe (Annexure B) dated 2 May 2005. Mr. Latz's condition has continued to deteriorate and his life expectancy is reducing. Dr. Keefe wrote in the report:- "He is struggling with shortness of breath and his ability to speak and concentrate is diminishing rapidly. He is at a stage where he soon will be unable to give evidence and he could die at any time." 17 The extraordinary circumstances to which I have earlier referred then is that Mr. Latz is facing imminent death. Mr. Stuart, in his affidavit, stated (paragraph 12) without objection:- "Mr. Latz has two dependent children and he has indicated to me his strong desire to be able to die after judgment so he can die with confidence that the children's financial future is secure." 18 Mr. Latz's position in this respect is, of course, a relevant matter but it is one which must be balanced and considered against the position of the applicants. However, that said, Mr. Latz's desire to have his proceedings heard and disposed of before he dies is not to be merely regarded as a dying man's wish. It is an incident of the ordinary civil right to a trial of any citizen in the sense that the disposition of litigation would normally be expected to be conducted and completed in the litigant's own lifetime. The judicial system in Australia makes that achievable in most cases including, in particular, those relating to dying plaintiffs in mesothelioma cases. 19 The plaintiff's condition and the very limited time left to him, of course, places him in the position of a vulnerable litigant at least from a time point of view. Any disruption of proceedings in what time remains to him is a material factor in determining, as an exercise of discretion, whether a stay should be granted. Any disruption through delay, even for a matter of a week or so, would have considerable impact upon the respondent plaintiff. 20 I am required to assess the detriment to the defendant if I refuse a stay against the detriment to the plaintiff if I do. The stay sought, of course, would not, per se, attach to the proceedings before the Dust Diseases Tribunal. However, as the Tribunal has suspended at least one of the procedural directions that it has recently made pending the outcome of the cross-vesting application, the grant of a stay as sought would more than likely leave the Tribunal in a position of holding its hand in relation to the proceedings before it, pending a Special Leave Application which is supported by a stay order, if one were to be granted, if only through deference to this Court. 21 In relation to the applicant's position and in considering any prejudice to them of a refusal of the stay, the refusal would not necessarily defeat the applicant/defendants in making an Application for Special Leave to the High Court, if they so decide. In the event, for example, that the Tribunal (O'Meally, J.) were to continue the proceedings to judgment, the opportunity of raising any issue going to the validity of the proceedings (if that is what is intended to be pursued on a Special Leave Application) would still remain an issue, post-judgment, that is one which would remain open to the applicants to pursue.

• the appropriate jurisdiction is South Australia, having regard to the indicia (which I take to refer to the "connecting factors" ) in respect of the appropriate forum. 23 Mr. Jobson of counsel identified the dicta in Schultz (supra) relied upon as that contained in paragraph 253 in the judgment of Callinan, J. 24 I have endeavoured to bring into account and consider the interests of the applicants and the respondent and, in particular, matters of prejudice or detriment as they potentially may affect each of them. 25 In all the circumstances, and in the exercise of my discretion, I decline to grant a stay in respect of the orders I have made. I have, in so concluding, had regard to the defendant/respondent's medical condition, the merits of the proposed grounds and outline of argument for the projected Special Lave Application, the issues argued before me on the cross-vesting application and the possible disadvantage to the applicants in refusing the stay order sought. I am of the opinion that in all the circumstances the application for a stay order ought be refused. 26 I accordingly dismiss the application for a stay order. I order that the applicants pay the respondent's costs of and incidental to the stay application. **********

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