That is a long way from factors connecting the proceedings to the proposed court.
43 Mason P went on to say, at [96]:
Other decisions support this broad approach to the "interests of justice" inquiry. Thus, in Bourke v State Bank of New South Wales (1988) 22 FCR 378, Wilcox J said (at 394):
In my opinion this phrase ought to be read widely. Under that rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in "the interests of justice" to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation. [Emphasis added.]
44 The cost of conducting similar litigation in more than one court, when the totality of the litigation can be jointly managed in one court, with potential saving in costs is capable of being regarded as an "unnecessary burden". Holding back the bulk of the cases pending determination of a lead case or cases with a view to saving costs, is not an "unnecessary delay".
45 His Honour then said, at [97] and [98]:
See also Pegasus Leasing Ltd v Tieco International (Australia) Pty Ltd (1993) 61 SASR 195 and Bissett v Goliath Portland Cement Co [1999] VSC 145.
There remains a liberality about the Australian decisions under the Cross-Vesting Act compared to the recent English cases on forum non conveniens. However, to a considerable degree the Australian cases reflect the relative ease of transport and communication within Australia. There is also recognition that legal and cultural differences in the practice of law from law area to law area within Australia are relatively insignificant (see Pegasus Leasing at 199-200 per Debelle J).
46 In order to appreciate the thrust of Mason P's judgment in James Hardie, it is instructive to note what was decided in that case and why. The plaintiffs had commenced proceedings in New South Wales, in the Dust Diseases Tribunal. The defendants sought to have the proceedings transferred to the Supreme Court of Queensland. There were connecting factors with Queensland as the proposed forum, including that the plaintiffs suffered the alleged exposure there, that they resided there, that they had received medical treatment there and that medical practitioners, whose evidence was likely to be relevant, were located there. The advantages of the Dust Diseases Tribunal were purely procedural. In particular, the Tribunal had a rule allowing the tender of historical and general medical evidence which had been tendered in other proceedings, subject to necessary procedural safeguards. Mason P found, at [111], that this rule would "dramatically shorten the proceedings". Another rule required leave to relitigate issues of a general nature, and there was a decision of the Tribunal determining such an issue against the defendants.
47 It will be noted that these were not connecting factors making the Tribunal the appropriate court in the Spiliada sense.
48 In this regard, Mason P said, at [110]:
I shall of course weigh on the side of the balance such Queensland "advantages" as are established to my satisfaction by the evidence. These include avoidable costs now attributable to the need to prepare for trial in Sydney and probably in Brisbane in circumstances where there is a Brisbane predominance of witnesses involved specifically with the plaintiff, such as the plaintiff's treating doctors.
49 Then, after referring to the rule mentioned above, Mason P said, at [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 (cf Spiliada at 482ff). They are also factors to be weighed against transfer insofar as they have the clear capacity to assist both the defendants and the judicial system of Australia in the just, quick and cheap resolution of the present dispute.
50 Finally, at [116], Mason P said:
Sections 25(3), 25A and 25B of the DDT Act are therefore very relevant to the interests of justice. They offer a significant possibility that substantial savings of time and cost would ensue if the proceeding remains in the Tribunal. In my view, they more than neutralise the countervailing factors of disruption to Queensland witnesses and additional expense which favour the defendants (only slightly, in view of the Tribunal's practice of hearing evidence in Brisbane regularly).
51 Spigelman CJ agreed with Mason P, saying, at [20], that "the interests of justice lie with the efficient and expeditious disposal of the proceedings". Priestley JA also agreed with Mason P.
52 As to burden of proof, Mason P said (at [100]):
One aspect of Bankinvest which has puzzled later courts is the statement by Rogers AJA (with which Street CJ definitely agreed and Kirby P probably agreed) that it is inapt to speak of any onus resting upon the applicant for transfer (see at 726-7). Such a sentiment may be understandable where transfer is ordered on the Court's own motion. However, like others I find it elusive in the context of a contested proceeding inter partes. If one views the exercise as one of judicial discretion according to proper principle, then it is natural to regard the applicant for particular relief as carrying at least the persuasive onus (see Bourke at 395-6, Chapman v Jansen (1990) 100 FLR 66 at 94, Dawson at 18, Hoddell v Hoddell Pty Ltd [1999] WASC 156 at [18], Nygh, op cit p92). Fortunately, "onus" will seldom if ever be determinative at the end of the day.
53 Having weighed up the relevant considerations, the court was not satisfied in Hardie that a transfer order would be in the interests of justice. In the present case, the plaintiffs must satisfy the court affirmatively that a transfer order would be in the interests of justice. But that is beside the point. Hardie stands as authority for the proposition that a procedural advantage which is likely to contribute to a saving in costs qualifies as a relevant consideration to be put into the balance with or against Spiliada-type connecting factors. That will be so irrespective of where the burden of proof lies.
54 I was referred to Wilson v Nattrass [1993] SASC 3945. The plaintiff and his parents were injured in a motor accident which occurred in South Australia. The plaintiff's parents commenced proceedings in Victoria in March 1992. The plaintiff commenced proceedings in South Australia on 21 September 1992. An application by the plaintiff to transfer his proceedings to Victoria was heard by Debelle J on 30 March 1993, six months after the plaintiff's proceedings were commenced. The plaintiff resided with his parents in Victoria. Obviously enough, the three cases involved common issues relating to liability and, in the same jurisdiction, would likely have been heard together as to liability.
55 His Honour recognised "the desirability of avoiding unnecessary cost" as a relevant consideration. However, having regard to where the witnesses respectively resided or carried on business, it was, his Honour found, plainly more convenient and far less expensive for the plaintiff's proceedings to be heard in South Australia rather than Victoria. His Honour refused the application to transfer the proceedings.
56 Concerning the plaintiff's choice of jurisdiction, his Honour said, at [12]:
There is another relevant factor. It is unusual for a plaintiff who has instituted an action in one court to seek to transfer his action to another. I am not aware of any reported decision where a cross-vesting application has been made by a plaintiff. Having selected the forum, the plaintiff should, as a general rule, be required to continue the action in that forum. The cross-vesting legislation was intended to be a means by which courts could avoid inconvenience and expense caused by jurisdictional limits of federal, State and Territory courts. The preamble to the Act expresses the intention that it is not intended to detract from the existing jurisdiction of any court and that, so far as practicable, proceedings concerning matters which, apart from the Act, would be entirely or substantially within the jurisdiction of a court should be finally determined in that court. The Act was not intended to provide a means by which a plaintiff could, if he chooses, transfer his action from one jurisdiction to another. It will only be in special circumstances that a plaintiff should be permitted to transfer his action particularly where, as here, the defendant has prepared his defence on the footing that the action will be heard in this Court.
57 In Wilson, considerations relating to convenience and cost favoured the jurisdiction initially chosen by the plaintiff. In that regard, it was significant that the defendant had prepared a defence on the footing that the action would be heard in South Australia. That is an important distinction from the present case where the defendants have done nothing except file appearances.
58 I do not disagree with the result in that case in view of the facts. But, for myself, I do not see why - all else being equal - a plaintiff should not, as a matter of common justice, have a second choice of forum, if there is a good reason for the second choice, an explanation for why the second choice was not made in the first place and no prejudice to the defendant. What interest is served by denying such an application? The plaintiff secures a benefit. The defendant loses nothing except the tactical advantage of detriment to the plaintiff.
59 It is not necessary, however, to go so far in the present case because of the joint case management factor and its significance to the interests of justice.
60 Other cases cited in argument add nothing of legal principle.