Plaintiff v Defendant

2 The defendant was at all relevant times a manufacturer, supplier and distributor of asbestos cement building products. It denies liability for Mr Arentz's injuries.

3 By summons dated 13 February 2013, Amaca seeks to have the proceeding transferred to the Supreme Court of New South Wales, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987. That section requires the court to consider whether it is "in the interests of justice" that the proceeding be transferred to the NSW court.

4 In fact, Amaca does not intend that the proceeding would be determined by the NSW court; rather, if transferred, it would seek to have the proceeding further transferred to the NSW Dust Diseases Tribunal ("the tribunal"). There is no dispute that, if transferred to the NSW court, the proceeding would be further transferred to the tribunal.[1]

5 The principles in relation to an application under s 5(2)(b)(iii) were comprehensively considered by the High Court in the decision in BHP Billiton Limited v Schultz[2], and have been applied in many subsequent decisions, including in this court.

6 The High Court affirmed that, in determining whether it is in the interests of justice to order a transfer, the court must be satisfied as to which court is the "natural forum" or the "more appropriate forum", in the sense that it has the most real and substantial connection with the subject matter of the proceeding. This has been described as involving a "nuts and bolts" exercise.[3]

7 There is no exercise of judicial discretion involved in such an application. If it appears to the court that it is in the interests of justice that the proceeding be transferred, then the court "shall transfer" the proceeding.

8 Each case depends on its own particular facts. Factors which may be relevant include the connection between the alleged conduct and the jurisdiction, the governing law, as well as issues of cost and convenience to the parties, including where the parties and witnesses live and carry on business. There is no presumption that a plaintiff's initial choice of forum carries independent weight.

9 In James Hardie & Co Pty Ltd v Barry[4], Spigelman CJ said that in tort cases:

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.

10 The tort is alleged to have occurred in NSW. However, there is no dispute that the claim would be determined according to the common law of negligence, and that there is only one common law of Australia.

11 Amaca does not seek to rely on any NSW legislation as part of its defence.

12 Amaca points out that Mr Arentz may be entitled to claim statutory payments in NSW under the Workers' Compensation (Dust Diseases) Act 1942 (NSW). But it is not suggested that the total amount for which Amaca might ultimately be liable would be affected by any such entitlement.[5]

13 It is not suggested that there is any relevant difference in the procedural law to be applied by this court or the tribunal.[6] Both offer abridged interlocutory timetables and speedy hearings for persons, such as Mr Arentz, who have a terminal illness.

14 Since this proceeding was commenced on 3 December 2012, pleadings have closed, discovery has been given, a list of special damages has been provided, interrogatories have been asked and answered, and Mr Arentz has served medical reports and a report by a forensic accountant. A settlement conference has been listed for 4 April 2013, and the matter fixed for a 5-7 day trial on 15 May 2013.

15 Although Amaca's evidence as to timing considerations in NSW is inadequate, I proceed for the purposes of this application (and with the agreement of Mr Arentz's counsel) on the assumption that the tribunal may well be able to offer a trial date earlier than 15 May 2013 (if the parties were ready for an earlier trial).

16 It is common ground that both this court and the tribunal have procedures in place for the taking of evidence on a de bene esse basis; that is to say, if Mr Arentz's health deteriorates to such an extent that it seems unlikely that he will be able to give evidence at the trial, there are procedures in place for taking his evidence before trial. In this court, such evidence is taken before a judge's associate. In cases in the tribunal, the usual practice is for the trial judge to take the evidence himself or herself. However, given Amaca's concession that Mr Arentz's credit will not be in issue, there is no particular advantage in having a procedure by which de bene esse evidence can be taken before the judge.[7]

17 Further, if the proceeding was transferred to NSW, and a de bene esse hearing was necessary, it would be more expensive for NSW lawyers and a NSW judge to travel to Melbourne to conduct the hearing, than if the proceeding remained here.

18 Apparently the registered office of Amaca is located in Sydney,[8] however there is no suggestion that Amaca would be unable to satisfactorily defend itself if this proceeding remains in Victoria.

19 Mr Arentz is 64 years old. He lives in Mooroolbark, a suburb of Melbourne, with his de facto partner, Grace. Before he became sick with mesothelioma, he had been working for periods of time in Western Australia, and returning to live with Grace in between. Grace has been acting as his carer since he became sick, a situation which is expected to continue.

20 It was not suggested that the transfer of the proceeding to the Supreme Court of NSW (and then to the tribunal) would preclude Mr Arentz altogether from being able to continue his case against Amaca. Nor was it suggested that the mere fact that he is suffering from mesothelioma would necessarily tend against orders for transfer, given the aggressive nature of the condition.[9] However, for the reasons that follow, I am satisfied that it would be substantially more difficult, stressful and expensive for him to conduct proceedings and participate in a trial in NSW.

21 In several recent decisions, judges of this court have refused to order the transfer of proceedings, where (as here) to do so would cause undue personal hardship.[10]

22 Since he first sought medical treatment in September 2012, Mr Arentz has been treated by doctors here in Melbourne. He has not been treated for this condition by doctors in any other State.

23 He is currently recovering at home, following a radical right pleuronectomy operation performed by Associate Professor Wright on 10 December 2012. He has been advised by Associate Professor Wright that the surgery was extensive, his recuperation will take several months, and he is unfit to travel by air during the period of his recuperation.

24 Once he recuperates from surgery, the current plan is that he will undergo 6 cycles of chemotherapy over a 15 week period at the St Vincent's Private Hospital in Fitzroy.

25 According to medical evidence, the type of mesothelioma from which he suffers is almost universally associated with a poor prognosis, and a median survival of 18 months from diagnosis may be expected in a case such as Mr Arentz's. In order to improve that prognosis, Mr Arentz would need to at least complete the recommended cycles of chemotherapy, and possibly radiotherapy thereafter. His plans for chemotherapy could potentially be disrupted if he had to travel to Sydney to prosecute his claim.

26 Amaca's counsel focussed on the undoubted fact that Mr Arentz could give evidence by way of video-link, if he was not well enough to travel to Sydney for the trial. But that submission ignores a critical matter: Mr Arentz is not merely a witness; he is a party, with all the rights that other parties enjoy. Assuming that his health permits, he is entitled to attend meetings with his solicitors and counsel, to attend any mediation or settlement conference, and to be present in court throughout the trial in order to observe and give instructions. Those are not matters which can be done as easily or as satisfactorily by video-link or telephone; and, in so far as some of those matters may be done via technology, there would be additional costs for Mr Arentz were he to utilise the technology.

27 If he were well enough to travel, Mr Arentz would incur travel and accommodation costs, were he required to prosecute his claim in Sydney.

28 Apart from his own evidence, Mr Arentz proposes to call evidence from the following persons:

(a) His partner, Grace, concerning the care she has given him and the effect of the mesothelioma upon him. She lives in Mooroolbark, Melbourne;

(b) His consulting respiratory physician, Dr Matthew Conron, who practises in East Melbourne;

(c) His thoracic surgeon, Associate Professor Wright, who practises in East Melbourne;

(d) Once he starts his chemotherapy, a treating oncologist at St Vincent's Private Hospital, Fitzroy;

(e) Mr Paul Spence, a forensic accountant, who practises in Melbourne;

(f) A former workmate of Mr Arentz, who lives in Batlow, NSW. Batlow is almost equal distance from Melbourne and Sydney;[11]

(g) It may be necessary to call evidence from people who have recently worked with Mr Arentz; such persons are likely to be resident in Western Australia.

29 All of Mr Arentz's relevant medical records are likely to be located here in Melbourne.

30 The affidavit of Amaca's solicitor, Kieran O'Brien, refers to the possibility that former employees of Mr Arentz's former employers, and the owners of houses which Mr Arentz painted, may be called as witnesses, although he does not say by which party. Given that the relevant events occurred some 40 odd years ago, those persons could now be resident anywhere in Australia or overseas. It appears that Amaca has not yet identified any of the witnesses who it proposes to call. There is certainly no evidence of a single witness resident in NSW who Amaca wishes to call.

31 If Amaca wishes to make arrangements to have Mr Arentz medico-legally examined (something Amaca has not yet sought to do), there is no suggestion that it could not do so here in Melbourne, where Mr Arentz lives.

32 In summary, on the evidence before the court, it is clear that the majority of witnesses are located in Melbourne. The sole witness who lives in NSW lives half-way between Sydney and Melbourne, and has indicated his willingness to travel to Melbourne. Any witnesses who live in Western Australia will have to travel or give evidence via video-link, whether the trial is held in Sydney or Melbourne.

33 True it is that, in this day and age, witnesses located in sizeable communities can and frequently do give evidence via video-link. But what Amaca is proposing is that there be a trial in Sydney in which every single witness for either side will either have to travel a substantial distance, or give evidence via video-link; not a single Sydney-based witness has been identified. Such a proposal seems to be contrary to common sense.

34 I am satisfied that a trial in Sydney would be substantially more expensive and inconvenient to all witnesses, and the parties, than a trial in Melbourne.

35 Having weighed up all the competing considerations, I am not persuaded that it is in the interests of justice that the proceeding be transferred to NSW. On the contrary, I am satisfied that the interests of justice overwhelmingly require that the proceeding remain in this court.

36 Accordingly, the application for a transfer must fail.

I certify that the 97 preceding pages are a true copy of the reasons for decision of Hollingworth J of the Supreme Court of Victoria delivered on 7 March 2013.

[1] Which would be the only appropriate NSW jurisdiction, by virtue of s 11(1) of the Dust Diseases Tribunal Act 1989 (NSW).

[2] [2004] HCA 61; (2004) 221 CLR 400.

[3] Ibid at [13] per Gleeson CJ, McHugh and Heydon JJ, quoting from Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 713-4.

[4] [2000] NSWCA 353; (2000) 50 NSWLR 357.

[5] Even if Mr Arentz claimed statutory benefits in NSW, s 8E of the Workers' Compensation (Dust Diseases) Act 1942 (NSW) provides a mechanism by which Amaca could be required to reimburse the Dust Diseases Board in respect of any such statutory payments made by it.

[6] This is not a case like James Hardie & Co Pty Ltd v Barry, op cit, where the tribunal's special procedures in relation to evidence and proof of historical matters were going to be important to the plaintiff establishing his case.

[7] Cf the situation in Amaca Pty Ltd (Under New South Wales Administered Winding Up) v Munro [2013] NSWSC 50 at [43], where Davies J held that credit "may well be an issue".

[8] There is no evidence before the court as to where Amaca's registered office is located, or as to where it has offices or staff. I infer from the title to the proceeding that it is under NSW administration, but know nothing about its specific resources.

[9] Such a submission was advanced, and rejected, in BI (Contracting) Pty Limited v Haylock [2005] NSWSC 592 at [45].

[10] Kellow v Irish Murphy's Pty Ltd [2010] VSC 239 per Warren CJ at [20]; Lloyd v Riverland Regional Health Service Inc [2010] VSC 350 per Emerton J at [24]; Irwin v State of Queensland [2011] VSC 291 per Robson J at [22] and [24]-[25]; Taylor v Woolworths [2012] VSC 286 per Hollingworth J at [17].

[11] Batlow is 438 km from Sydney and 490 km from Melbourne.