Plaintiff v Defendants

3. The costs of the cross-vesting application be costs in the cause.

4. The Second Defendant's oral application to have a preliminary matter under the Accident Compensation Act 1985 (Vic) determined prior to determination of the cross-vesting application is dismissed.

5. The Second Defendant pay the Plaintiff's costs exclusively referable to the application referred to in paragraph 4 of this Order.

2 At the time I made the order, I stated that I would publish my reasons at a later date. These are my brief reasons.

3 The matters set out below are based on the pleadings and the affidavit material filed by the parties. I have assumed that the matters are factually correct without making any specific findings.

4 Between 1950 and 1956, Ross Hook was employed in Western Australia as a fitter by the predecessor in law of the first defendant. I will refer to the first defendant and its predecessor collectively as 'PTAWA'.

5 Between 1958 and 1996, Mr Hook worked as an engineer on ships operated by the second defendant ('AS'). Those ships travelled between various ports, including Fremantle and Melbourne.

6 On 22 July 2013, the Melbourne office of Slater & Gordon filed in this Court a generally indorsed writ on behalf of Mr Hook against PTAWA and AS.

7 On 9 September 2013, Slater & Gordon filed a statement of claim. In the statement of claim, Mr Hook alleged: that in the course of his employment with PTAWA and AS, he was exposed to asbestos due to the negligence of PTAWA and AS; that as a result of this exposure, he contracted malignant pleural mesothelioma which was diagnosed in April 2013; and that he suffered loss and damage.

8 On 20 September 2013, Slater & Gordon filed a summons for directions on behalf of Mr Hook.

9 Mr Hook died on 23 September 2013, prior to the return date for the summons for directions. After a series of adjournments by consent, an order was sought to substitute the executrix of Mr Hook's deceased estate as the plaintiff. Such an order was made on 13 February 2014.

10 On 17 February 2014, the writ and the statement of claim were amended to substitute as plaintiff Mr Hook's widow, Barbara Hook, as executrix of Mr Hook's estate. Paragraph 1 of the amended statement of claim stated as follows:

The Plaintiff is the executrix of the Will of Ross Munro Hook ('the Deceased') who died on 23 September 2013, and brings this proceeding pursuant to Section 29 of the Administration and Probate Act 1958 for the benefit of the estate of the Deceased, and pursuant to Part III of the Wrong Act 1958 (Vic) for the benefit of the dependant of the Deceased.

PARTICULARS

(a) The dependant of the Deceased is Barbara Kay Hook ... who is the widow of the Deceased. ...

11 On 21 February 2014, AS filed a summons seeking an order pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 ('Act') that the proceeding be transferred to the Supreme Court of Western Australia. On 26 February 2014, PTAWA also filed a summons seeking such an order. Both summonses were returnable in the Practice Court on 3 March 2014.

12 On 28 February 2014, AS wrote to the other parties and the Court to give notice that, on 3 March 2014, it would make an oral application to the Court for an order that, prior to the hearing of the cross-vesting applications, the proceeding be listed for determination of the following preliminary questions ('Preliminary Questions'):

(a) has the worker, ROSS MUNRO HOOK (who died on 23 September 2013 whilst the Plaintiff named in the Writ filed 22 July 2013 herein), complied with the requirements of section 135BB of the Accident Compensation Act 1985 (Vic) (the '1985 Act');

(b) if No to question (a), whether the proceeding filed by the aforesaid dated Writ ought to be struck out on the grounds provided for by s 135BB(6) of the 1985 Act;

(c) if Yes to question [(b)], was there a proceeding 'pending' as at the date of the aforesaid worker's death within the meaning and for the purposes of s 29(2A) of the Administration and Probate Act 1958 (Vic).

13 On 28 February 2014, Slater & Gordon informed the defendants that the plaintiff, Mrs Hook, would not oppose the cross-vesting applications.

14 In Tamaresis v CSR Ltd,[1] I set out s 5(2) of the Act. In the present case, the question that I needed to determine under that section is whether 'it is ... in the interests of justice that the ... proceeding be determined by' the Supreme Court of Western Australia.

15 In Tamaresis, I also summarised the principles that apply to cross-vesting applications under s 5(2) of the Act. I will not repeat the summary here. The principles are applied below.

16 The place where PTAWA was allegedly negligent was Western Australia. The place where AS was allegedly negligent was on its ships while they were at sea, or in port, including the ports of Fremantle and Melbourne. This factor favours the Supreme Court of Western Australia as the most appropriate forum.

17 Mr Hook's cause of action in negligence accrued in Western Australia where he was diagnosed with mesothelioma. The deceased estate's cause of action also accrued in Western Australia, where Mr Hook died. These factors also favour the Supreme Court of Western Australia as the most appropriate forum.

18 The law governing the proceeding is unclear. Had Mr Hook sued only PTAWA, the law of Western Australia would apply. The position relating to the claim against AS is complicated because Mr Hook was said to have been exposed to asbestos when working on board ships which travelled from port to port, including Fremantle and Melbourne. In some cases, the law of the forum can apply where a tort is committed on the high seas.[2] On this basis, the law of either Victoria or Western Australia could apply, depending on which jurisdiction is otherwise the most appropriate forum. This factor either favours the Supreme Court of Western Australia as the most appropriate forum or is neutral as between that Court and this Court.

19 Mr and Mrs Hook have at all relevant times lived in Western Australia. PTAWA has at all relevant times been based in that State. AS carried on business throughout Australia. Until 1996, its registered office was in Victoria. Since then, its registered office has been in New South Wales. Since 1998, its principal place of business has been in New South Wales. This factor favours the Supreme Court of Western Australia as the most appropriate forum.

20 The plaintiff and PTAWA have their documentary evidence in Western Australia. AS has its documentary evidence in either New South Wales or Queensland. None of the parties have any primary documentary evidence in Victoria. This factor favours the Supreme Court of Western Australia as the most appropriate forum.

21 The plaintiff has engaged three experts who are based in Western Australia and one expert who is based in Victoria. Mr Hook's general practitioner is based in Western Australia. This factor also favours the Supreme Court of Western Australia as the most appropriate forum.

22 The plaintiff's affidavit material emphasised that this Court is very experienced in conducting asbestos-related proceedings. Insofar as the plaintiff sought to suggest that this Court is better equipped to conduct such proceedings than the Supreme Court of Western Australia, I rejected that suggestion.

23 The law firms representing the plaintiff and AS have offices in Perth and Melbourne. PTAWA's main lawyers are based in Perth. This factor is largely neutral.

24 Applying the 'nuts and bolts' approach to deciding which court, in the pursuit of the interests of justice, is more appropriate to hear the substantive dispute between the parties, and having regard to the connecting factors to the Supreme Court of Western Australia, I was clearly of the view that that Court is the natural and most appropriate forum.

25 Accordingly, I was of the opinion that it is in the interests of justice that the proceeding be determined by the Supreme Court of Western Australia and that a cross-vesting order should be made to transfer the proceeding to that Court.

26 I was also of the opinion that, as the plaintiff did not oppose the making of such an order, it is in the interests of justice that the costs of the defendants' applications for a cross-vesting order be costs in the cause.

Application for hearing of Preliminary Questions

27 The Preliminary Questions can only arise if the proceeding is governed by Victorian law and, more particularly, by the Accident Compensation Act 1985 ('AC Act'). For the reasons set out at [18] above, there are difficulties with the proposition that the proceeding is governed by Victorian law. Even if Victorian law applies, there is a separate issue about the extent, if any, to which the AC Act applies.

28 As I have concluded that the Supreme Court of Western Australia is the most appropriate forum to hear the proceeding, it will be a matter for that Court to decide which law applies to the proceeding. If that Court decides that Victorian law applies, it can decide the issues raised by the Preliminary Questions. There is no necessity for this Court to decide the Preliminary Questions in circumstances where the proceeding is to be cross-vested to the Supreme Court of Western Australia.

29 In support of its contention that the Preliminary Questions should be determined prior to the hearing of the cross-vesting applications, AS submitted that if those questions were resolved in its favour, there would be no pending proceeding in this Court and thus this Court would not have jurisdiction to make the cross-vesting order. I did not accept that submission. Until such time as any order is made dismissing, striking out or otherwise extinguishing this proceeding, it is on foot and provides a proper basis for the making of a cross-vesting order.

30 AS also submitted that it would be more appropriate for this Court to determine the Preliminary Questions, as this would affect what remained of the proceeding that could be the subject of a cross-vesting order. Once again, I rejected this submission. In the circumstances of this case, as I have decided that the Supreme Court of Western Australia is the most appropriate forum and that that Court is well equipped to determine all issues in the proceeding, including those raised by the Preliminary Questions, it would be inappropriate for this Court to make any order that alters the nature and scope of the proceeding. That is because, on full and proper consideration of the issues, the Supreme Court of Western Australia may adopt a different view from that of this Court, thereby causing unnecessary embarrassment for the future conduct of the proceeding.

31 For the above reasons, I decided to dismiss AS' oral application in relation to the Preliminary Questions.

32 I also decided to order AS to pay the plaintiff's costs that are exclusively referable to AS' oral application. This is because that application, which was made at short notice, had the effect of converting what would otherwise have been a simple uncontested application on summons for a cross-vesting order into a lengthier and more expensive contested oral application which was unsuccessful.

[1] [2013] VSC 613 (15 November 2013) ('Tamaresis').

[2] Blunden v Commonwealth (2003) 218 CLR 330.