Studorp Ltd v Lance John Robinson

Supreme Court of NSW|2012-02-24|Before: Adamson J

Judgment 1On 11 April 2011, the defendant, who now resides in New South Wales, commenced proceedings in the Dust Diseases Tribunal ( the DDT ) against the plaintiff, a New Zealand company, claiming that the plaintiff had negligently manufactured and supplied asbestos building products which had released asbestos dust and fibre which he had inhaled while working with his father from about 1968 to 1974 in New Zealand ( the DDT Statement of Claim ). 2The defendant purported to serve the DDT Statement of Claim on the plaintiff at its registered office in New Zealand. 3By summons filed in this Court on 21 November 2011, the plaintiff seeks an order setting aside service of the DDT Statement of Claim or an order staying the proceedings on the basis that the DDT is a clearly inappropriate forum for the determination of the defendant's claim.

Relevant statutory provisions 4The statutory provisions relied upon by the parties, or which are otherwise germane, are set out below. 5Rule 1.5 of the UCPR provides: " 1.5 Application of these rules (1) Subject to subrule (2), these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule. (2) In respect of each court referred to in Column 1 of Schedule 1, civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of each provision of these rules referred to in Column 4 of that Schedule in respect of those proceedings. (3) The exclusion of civil proceedings from any such provision is subject to such conditions, limitations or exceptions as are specified in Column 4 of Schedule 1 in relation to that provision." 6In respect of the DDT, Schedule 1 relevantly provides: Column 1 Column 2 Column 3 Column 4 Part 15, Division 3 Dust Diseases Tribunal All civil proceedings Part 9 Part 21 Part 22

7Part 11 of the UCPR provides for service of documents outside Australia. It relevantly provides: " Part 11 Service of documents outside Australia and service of external process Division 1 General 11.1 Application of Part (1) This Part applies to proceedings in the Supreme Court. (2) For the purposes of this Part, a reference to Australia includes a reference to the external Territories. 11.2 Cases for service of originating process (1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6. (2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention. 11.3 Notice to the defendant served outside Australia (1) If originating process is intended to be served on a defendant outside Australia, a notice to that effect must be included in the originating process. ... 11.6 Mode of service A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected. 11.7 Setting aside originating process served outside Australia (1) The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia. (2) Without limiting subrule (1), the Supreme Court may make an order under this rule: (a) on the ground that the service of the originating process is not authorised by these rules, or (b) on the ground that the court is an inappropriate forum for the trial of the proceedings." 8Schedule 6 relevantly provides that originating process may be served outside Australia in certain circumstances which include: "(e) if the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in New South Wales caused by a tortious act or omission wherever occurring..." 9The Dust Diseases Tribunal Act 1989 ( the DDT Act ) relevantly provides for the jurisdiction and functions of the DDT as follows: " 10 Jurisdiction and functions of the Tribunal (1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12. (2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act. ... (4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court. 11 Claims for damages for dust diseases etc to be brought under this Act (1) If: (a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and (b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and (c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death, proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal ." [Emphasis added] 10"Decision" is defined by s 3 of the DDT Act including "judgment, order and ruling". 11Section 25(3) of the DDT Act provides: "(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties." 12Section 12 of the DDT Act provides that where proceedings of the kind referred to in s 11(1) are brought or are pending in the Supreme Court, the Registrar of that Court must transfer the proceedings to the DDT. 13Section 32H of the DDT Act confers a regulation-making power on the Governor with respect to a list of topics, none of which refers to service of originating process outside the jurisdiction. 14Clause 19 of the Dust Diseases Tribunal Regulation 2007 ( DDT Regulation ) relevantly provides: " 19 Effect of claim being subject to claims resolution process (1) While a claim is subject to the claims resolution process: (a) the parties to the claim must comply with the provisions of this Part, and (b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and (c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation. (2) This clause does not affect the application of the practice and procedures of the Tribunal with respect to: (a) the service of the statement of claim on the defendant, including the service of the statement of claim outside Australia , or..." [Emphasis added.] 15Clause 21 of the DDT Regulation relevantly provides: " 21 Service of documents (1) Rules 10.5-10.19, 10.21 and 10.22 of the Uniform Civil Procedure Rules 2005 apply to and in respect of the service of documents for the purposes of this Part in the same way as they apply to and in respect of the service of documents for the purposes of proceedings in the Tribunal. (2) In the case of a defendant who is outside Australia, any document to be served for the purposes of this Part may be served on the defendant: (a) in the same manner as that in which the relevant statement of claim was served on the defendant , or (b) in such other manner as the parties may agree." [Emphasis added.]

Whether service was authorised and properly effected and whether New South Wales is an inappropriate forum: the parties' arguments 16The plaintiff submitted that although Part 11 is not referred to in Schedule 1 of the UCPR, it applies only to proceedings in the Supreme Court. Accordingly UCPR 1.5 is not sufficient to authorise effective service of the originating process in the DDT outside the jurisdiction if the plaintiff does not submit to the DDT's jurisdiction. 17Furthermore, the plaintiff submitted that s 10(4) of the DDT Act was insufficient to confer the Supreme Court's power in Part 11 of the UCPR on the DDT. It contended that the power to "make decisions", conferred on the DDT in s 10(4) does not extend to confer an entitlement on a party to serve the DDT's originating process outside Australia, and thereby invoke the DDT's jurisdiction. 18It also submitted that the conferral on the DDT of exclusive jurisdiction in respect of claims for damages for dust-related conditions did not prevent this Court from setting aside service of the DDT Statement of Claim. 19The plaintiff submitted that the notice requirements in UCPR 11.3(1) for service outside Australia had not been complied with. 20The plaintiff contended that this Court should make an order under UCPR 11.7, either on the ground that service was not effected pursuant to the UCPR or because New South Wales was an inappropriate forum. 21It contended that the DDT was an inappropriate forum by reason of the following: (1)New Zealand law is the governing law of the tort because all the exposures to asbestos dust for which the defendant alleges the plaintiff was responsible occurred in New Zealand; (2)the defendant's solicitor, who conducts litigation in seven different jurisdictions including New Zealand, has a professional address in Queensland; (3)although the defendant, his father and his general practitioner live in New South Wales, they all live close to the Queensland border and therefore they are significantly closer to Brisbane than to Sydney; (4)the defendant's treating clinicians live in Queensland; (5)the plaintiff and its records are in New Zealand; (6)the plaintiff's liability witnesses, if any, are likely to reside in New Zealand and are also likely to be elderly; (7)there is no basis to assume that the DDT has expertise over that of its counterparts in Queensland or New Zealand; and (8)it is immaterial that two out of three of the plaintiff's current directors live in the Sydney metropolitan area since the acts and omissions alleged against the plaintiff occurred from about 1968 to about 1974. 22The plaintiff relied on Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538 (Voth) in which the High Court held that the fact that Missouri was the place of the tort, its law was the governing law by which the substantive issues in the case were to be determined, and it was also where Mr Voth (against whom the allegations were made) lived outweighed the fact that Manildra Four Mills, the plaintiff, was a company that was registered and operated in New South Wales. 23The plaintiff submitted that the factors that connect the defendant to New South Wales were incidental and of less weight than the factors that connect the proceedings with New Zealand. 24The plaintiff relied on the unchallenged expert report of Mr Hodder SC as to matters of New Zealand law. Mr Hodder gave evidence that courts in New Zealand regard themselves as applying New Zealand common law, which is historically derived from the common law of England. Because of the modern statutory bar in New Zealand on common law claims for damages for personal injury, principles of negligence have in that country have developed in recent years mostly in the context of negligence claims against councils which have inspected defective buildings. He opined that while Australian cases are cited in New Zealand courts, it is the common law of England which is still the major influence on the common law of New Zealand. The justice and reasonableness of imposing a duty tend to be of greater significance in determining the existence and scope of a duty of care than foreseeability, which has greater significance in Australia. Mr Hodder also opined on the differences in matters such as breach, causation and damages between Australian law and New Zealand law. 25The plaintiff submitted that although the question whether a duty of care was owed might not be in issue per se in these proceedings, the scope and extent of any duty and the standard of care will be important. Accordingly the differences between the Australian and New Zealand common law of negligence may be significant. The plaintiff relied on the following passage from James Hardie Industries v Grigor (1998) 45 NSWLR 20 (Grigor) at 37, per Spigelman CJ: "Once it is determined that the place of the tort is New Zealand this identifies immediately a significant source of prejudice by reason of the need to prove the law of New Zealand as a matter of fact, by means of expert evidence. At this stage it is not possible to say whether or not there will be a conflict of evidence on this matter. However, on the materials before the Court at present, it does not appear that New Zealand law is sufficiently certain to determine how readily the applicable law will be able to be identified." 26The plaintiff relied on the passage from the plurality's reasons in Voth at 566 and placed emphasis on the first part of the following sentence: "[t]he substantive law of the forum is a very significant factor in the exercise of the court's discretion, but the court should not focus upon that factor to the exclusion of all others." 27The plaintiff accepted that the DDT would, under the following circumstances, have jurisdiction to hear and determine the defendant's claim. It said that it would be necessary, in circumstances such as the present where the plaintiff does not submit to the jurisdiction of the DDT, for the defendant to commence proceedings in this Court and then have issues of service out of the jurisdiction resolved by this Court before the Registrar transferred the proceedings to the DDT, as the Registrar is obliged to do under s 12(1) of the DDT Act. 28The defendant submitted that the fact that there is no mention of Part 11 in the fourth column of Schedule 1 of the UCPR shows that there was no intention to deprive the DDT of jurisdiction with respect to service of its originating processes out of the jurisdiction. Furthermore it contended that the intention of s 10(4) was to confer all the procedural and substantive jurisdiction of the Supreme Court on the DDT, subject to exceptions such as the appellate jurisdiction. 29The defendant argued that the combined effect of s 10 and s 11 of the DDT Act is to confer exclusive jurisdiction on the DDT to permit service of originating processes claiming damages for asbestos-related diseases. He submitted that to permit the procedure set out above (namely, commencement in this Court to attract the powers in Part 11 of the UCPR and then have the matter transferred to the DDT) would subvert the express terms of s 11, and in particular the prohibition that proceedings for damages in respect of dust-related conditions: "may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal ." [Emphasis added.] 30The defendant also called in aid DDT Regulations 19 and 20 and contended that there was a clear implication that the DDT had power to authorise service outside the jurisdiction. The defendant did, however, concede that his argument in this respect turned on my construction of s 10(4). 31The defendant sought to distinguish the right of a party to serve originating process outside Australia from the jurisdiction to make decisions under the Jurisdiction of Courts (Cross-vesting) Act 1987 to remove a proceeding from a State Court or Tribunal and transfer them to another jurisdiction within Australia, which were held to be outside the jurisdiction of the DDT: James Hardie & Coy Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [56] and [68], per Mason P, with whom Spigelman CJ and Priestley JA relevantly agreed. He submitted that service of process outside the jurisdiction was an integral part of the decision-making process of a court or tribunal and that the jurisdiction to transfer proceedings to another court was of an entirely different order. 32The defendant argued that the originating process had been served in compliance with Part 11 of the UCPR since it had been served in accordance with New Zealand Law, by service at the plaintiff's registered office. It said that although he had mistakenly attached a notice to the DDT Statement of Claim that purported to be a notice under the Service and Execution of Process Act 1992 (Cth) this was a mere procedural irregularity which ought be disregarded since it was obvious from the face of the document that the originating process was intended to be served on the plaintiff in New Zealand. Furthermore there could be no suggestion that the plaintiff had been prejudiced because it had commenced these proceedings in this Court to set aside the service. He submitted that if I were otherwise satisfied that service was effective, I ought to treat the error as an irregularity under s 63(2) of the Civil Procedure Act 2005. 33The defendant argued that the plaintiff had not established that the DDT is an inappropriate forum for the trial of the proceedings within the meaning of UCPR 11.7(2)(b). 34The defendant contended that the following factors were relevant: (1)although the plaintiff is a New Zealand company, its parent and related companies (ABN 60 Pty Limited, formerly James Hardie Industries Limited and Amaca Pty Limited, formerly James Hardie & Co Pty Limited) are registered in New South Wales; (2)one of the plaintiff's three directors resides in Chicago, but the other two live in New South Wales, in metropolitan sydney; (3)a critical witness on liability, his father, lives in New South Wales and all witnesses on damages (the defendant, his wife and his clinicians) live in Northern New South Wales or Queensland; (4)the defendant's physical condition is compromised by chronic chest pain, shortness of breath and fatigue as a result of asbestos-related pleural disease. He is unable to drive for any period of time. His symptoms have emerged only in New South Wales and Queensland; (5)the defendant suffered damage in New South Wales; (6)the DDT travels to Brisbane on circuit; and (7)the DDT requires parties before it to engage in mediation. 35The defendant also submitted that s 25(3) of the DDT Act was of particular juridical advantage to him since it saved considerable time and expense. He submitted that this provision has been found to be procedural (by Mason P in Grigor at 43, with whom Beazley JA agreed) and therefore the defendant will get the benefit of the provision in the DDT even if the governing law is that of New Zealand. 36The defendant submitted that test to be applied is whether the DDT is a clearly inappropriate forum and not whether there is some comparatively appropriate forum: Voth at 559, per Mason CJ, Deane, Dawson and Gaudron JJ. The test focuses on the advantages and disadvantages for the continuation of the proceedings in the DDT rather than on the need to make a comparative judgment. However the availability of relief in the foreign forum is a relevant factor in deciding whether this court is a clearly inappropriate forum: Voth at 558, per Mason CJ, Deane, Dawson and Gaudron JJ. 37The defendant also relied on Puttick v Tenon Limited [2008] HCA 54; (2008) 238 CLR 265 (Puttick) and submitted that even if the applicable law is the law of New Zealand, it does not follow that the DDT is an inappropriate forum. French CJ, Gummow, Hayne and Kiefel JJ said, at [31]: "If the tort which Mrs Puttick alleges Tenon committed against her late husband was shown not to be a foreign tort, Tenon's claim to a stay of proceedings would have been greatly weakened. But it by no means follows that showing that the tort which is alleged is, or may be, governed by a law other than the law of the forum demonstrates that the chosen forum is clearly inappropriate to try the action. The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction. Moreover, considerations of geographical proximity and essential similarities between legal systems, as well as the legislative provisions now made for the determination of some trans-Tasman litigation, all point against treating the identification of New Zealand law as the lex causae as a sufficient basis on which to conclude that an Australian court is a clearly inappropriate forum to try a dispute. " 38The plaintiff submitted in reply that I should not act on the basis that it had been determined that s 25(3) of the DDT was procedural since it was obiter in Grigor and had been doubted by Callinan J, as appears from the following passage in BHP Billiton v Schultz [2004] HCA 61; (2004) 221 CLR 400 at 491: "Sections 23, 25, 25A and 25B [of the DDT Act] do more than relax the rules of evidence. They alter, or at least would allow the Tribunal to depart from the audi alteram partem rule. Their effect is to enable the Tribunal to use against a party evidence and findings which it has had no opportunity of testing or controverting. However they may be expressed, provisions capable of producing that outcome, of denying natural justice, do not have the appearance of being merely procedural ." [Emphasis added.] 39The plaintiff also relied on a decision of O'Meally P in the DDT, Stavar v Caltex Refineries (NSW) Pty Limited [2008] NSWDDT 22. The circumstances of that case occurred wholly within the State of Queensland. O'Meally P proceeded, on the basis of the passage from BHP Billiton set out above, that s 25(3) was substantive. O'Meally P also considered s 25B of the DDT Act and summarised the divergence of judicial opinion in the following terms: "It has frequently been held in the Tribunal that all asbestos exposure during an acceptable latency period makes a material contribution to mesothelioma. That has been the subject of determination by judges of the Tribunal under s 25B of the Act. In James Hardie & Coy Pty Ltd v Barry (2000) 21 NSWCCR 150, Spigelman CJ at 157 [16] expressed the view that s 25B is substantive in nature. The same view was expressed at [123] by Priestly JA. Mason P, on the other hand, thought at [78] it was procedural. In Schultz (supra), Callinan J, in the passage already quoted, expressed the view that s 25B was substantive. It might be said that these views are obiter , but they appear in considered appellate judgments. Unless and until a contrary view is expressed, I feel constrained to hold that s 25B is substantive in nature and the plaintiff may not rely upon findings in earlier proceedings that mesothelioma is an indivisible injury to which all asbestos exposure makes a material contribution." 40The plaintiff also submitted in reply that the mandatory mediation in the DDT was a neutral factor since he was instructed that his client would participate in mediation at any time convenient to the defendant. 41The plaintiff also submitted in reply that I should ignore the fact that the DDT goes on circuit to Queensland since this amounted to an "extraordinary aspect" of its powers (see Grigor at 43C per Mason P).

Whether the plaintiff was served within the rules 42I prefer the plaintiff's construction of Rule 1.5, Schedule 1 and Part 11 of the UCPR. The fact that the rule-making body saw fit to provide expressly that Part 11 applies to proceedings in the Supreme Court is sufficient, in my view, to displace any inference that the absence of reference to Part 11 in Column 4 of Schedule 1 means that it applies to the DDT. 43I do not consider that s 10(4) of the DDT Act has the effect for which the defendant contends. To provide, as Parliament has done, that the DDT has the "same power to make decisions as the Supreme Court would" is not to confer all the jurisdiction and powers of the Supreme Court, together with the rights of parties who file originating process in this Court, but merely the power to make "decisions". Although "decision" includes "judgment, order and ruling", each of these matters relates to an exercise of judicial power, rather a privilege of a party to serve originating process in a particular way and thereby invoke exterritorial jurisdiction. UCPR 11.2, in effect, confers a right on a party to invoke the Court's jurisdiction by serving originating process outside the jurisdiction if the matter concerns certain subject matters which have a connection with the jurisdiction. For these reasons I do not consider s 10(4) authorises the DDT to exercise jurisdiction in circumstance where its originating process has been served outside Australia, in circumstances where the named defendant does not appear. 44Nor do I consider that the DDT Regulations, which on their face, appear to contemplate that a statement of claim can be served outside the jurisdiction, can take the matter any further. In so far as they purport to authorise such service on a party who objects to such jurisdiction, they may be beyond the regulation-making power in s 32H of the DDT Act and, if so, would be read down to preserve their validity in accordance with s 32 of the Interpretation Act 1987 so as to authorise service on a party who subsequently appears in the DDT and can therefore be taken to have voluntarily submitted to the jurisdiction of the DDT. They are not, of themselves, sufficient to override the statutory provisions referred to above. 45As the submissions of the parties highlight, there is some tension between the following three provisions: prohibition against a party bringing proceedings for damages for a dust-related condition in s 11 of the DDT Act; the express contemplation that such might occur in s 12 of the DDT Act; and UCPR, Part 11, which I have construed as applying only to proceedings in this Court. 46Legislation is to be read as a whole. It is to be presumed that "Parliament intended its legislation to operate rationally, efficiently and justly, together": Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 724, per Kirby P. 47I consider that the prohibition contained in s 11 ought to be read as qualified by UCPR Part 11. In other words, a party may commence proceedings in this Court for damages for a dust-related condition in order to obtain the right to serve the originating process outside Australia and have this Court's jurisdiction invoked if the defendant in that process is not prepared to submit to the jurisdiction of the DDT. 48The Registrar's obligation under s 12(1) of the DDT Act to transfer any proceedings of that nature commenced in this Court must, in my view, be qualified by this Court's exclusive jurisdiction to give effect to service of the originating process outside Australia. 49Section 12(1) of the DDT Act should, in my view, be read as if it expressly provided that the obligation to transfer such proceedings to the DDT is subject to the determination by this Court of any questions of service of originating process outside the jurisdiction. The exclusive jurisdiction of the DDT is not compromised or trenched in any way by the interpretation I have given these provisions. 50It follows from what I have said above that the defendant would have been entitled to serve originating process on the plaintiff in New Zealand within the UCPR by complying with New Zealand law as to service, had it been filed in this Court rather than the DDT. 51Accordingly, the DDT Statement of Claim was not served in accordance with the rules. 52Had it been an originating process of this Court, then I consider that it was properly served. The defendant's claim fell within Schedule 6(e) and service was effected pursuant to New Zealand law. This is because damage for the purposes of Schedule 6(e) is not confined to immediate physical injury or loss suffered when the cause of action first accrued. A claimant who suffers damage within New South Wales by, for example, incurring medical expenses consequent on physical injury comes within Schedule 6(e). 53The notice appended to the DDT Statement of Claim did not comply with the UCPR. However, had this been the only instance of procedural irregularity, I would have been disposed to treat it as such pursuant to s 63 of the Civil Procedure Act 2005 and to find that the rules had been complied with.

Is the DDT an inappropriate forum? 54Even if the defendant had commenced proceedings in this Court, served the originating process in accordance with UCPR 11.2 and made any application for leave to proceed under UCPR 11.4, the plaintiff could still have moved to set aside the originating process on the ground that this Court is an inappropriate forum for the trial of the proceedings: UCPR 11.7(2)(b). The plaintiff accepted that if I find that the service of the DDT originating process in New Zealand was invalid and insufficient to invoke the jurisdiction of the DDT, it would nonetheless be appropriate for me to determine whether the DDT was an inappropriate forum since I have heard evidence and detailed submissions on the question. Furthermore, should the defendant decide to adopt the course set out above, there will already be a determination of that issue. 55I accept the defendant's submissions that it is likely that he and his father will both be crucial witnesses on liability. Important witnesses on damages, including his wife and clinicians, live in, or near, New South Wales. 56Although the defendant did not in terms concede that the proper law of the tort was the law of New Zealand, his counsel was unable to identify any other possibility. He accepted that the test was not where the damage accrued, but rather, where the wrong had occurred. He could point to no alleged wrongdoing by the plaintiff which did not occur in New Zealand. It is well established that it is the acts of the plaintiff and not their consequences that must be the focus of attention in determining the proper law of the tort: Voth at 567. 57I consider that the law of New Zealand is the substantive law that must be applied: Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491; cf Puttick where the exposure occurred in Malaysia, Belgium and New Zealand and therefore it was not possible to identify the lex loci delicti with any certainty. This means that New Zealand law must be proved as a matter of fact if the proceedings are to be heard and determined in the DDT. As the passage set out above in Puttick establishes, this is not a determinative factor against the local tribunal, although, as the High Court said in Voth , it is a significant one. 58It appears from the passage from Stavar set out above that there is a real prospect that s 23, s 25, s 25A and s 25B of the DDT Act will be found to be substantive and therefore inapplicable to the defendant's claim against the plaintiff in the DDT, since they do not form part of the law of New Zealand, which is the governing law of the tort. In light of the current state of the law, I cannot assume that the defendants will have the benefit of these provisions in the DDT. 59I turn therefore to consider the factors relevant to the determination of whether the DDT is an inappropriate forum. In favour of the proposition are: (1)the governing law is the law of New Zealand which accordingly will have to be proved as a matter of fact in the DDT; (2)the plaintiff's witnesses on liability are likely to be elderly and located in New Zealand; (3)the plaintiff's documents are in New Zealand; and (4)there is a real prospect that the evidentiary provisions available in local proceedings in the DDT will be regarded as substantive and therefore would not be available in the proceeding if it were heard in the DDT. The usual modus operandi of the DDT would be accordingly not apply if these proceedings were heard there. 60On the other hand the following considerations tend point to against the DDT being an inappropriate forum: (1)the defendant, his father, his wife, his general practitioner and treating clinicians live in or near New South Wales; (2)although there are distinctions between the law of negligence as it has developed in New South Wales and in New Zealand law, these distinctions are likely to be reasonably subtle having regard to their both being derived from the common law of England. They are unlikely to produce significantly more complexity than the differences in the law of torts in various States of Australia, which are occasioned by different statutory regimes, against the background of the common law; and (3)although the plaintiff is a New Zealand company, its parent company and associated company are registered in New South Wales. 61On balance I do not consider the governing law of the tort to be sufficient to outweigh the three factors listed above as tending to point against the DDT being an inappropriate forum. 62Leaving aside the question of service which has been dealt with separately above, I am not satisfied that the DDT is an inappropriate forum, much less a clearly appropriate one. 63The orders which I consider dispose of the present contest between the parties are: (1)Set aside service of the defendant's statement of claim filed in the Dust Diseases Tribunal, proceedings No. DDT 96 of 2011 ( the DDT Statement of Claim ). (2)Declare that the Dust Diseases Tribunal has no power to hear or decide proceedings No. DDT 96 of 2011. (3)Declare that the Dust Diseases Tribunal is not a clearly inappropriate forum for the determination of the defendant's claim for damages against the plaintiff for damages for dust-related injuries as set out in the DDT Statement of Claim. (4)Each party is to pay their own costs of these proceedings. (5)Direct that the defendant is to include a copy of these reasons, for the attention of the Registrar, together with any originating process in this Court in which substantially the same allegations are made as in the DDT Statement of Claim. 64At the conclusion of the hearing I foreshadowed that I would give the parties an opportunity to be heard on any order that concerns the course that the defendant might take in light of these reasons. Accordingly, I shall defer making the direction in paragraph 5 above to permit the parties to address me on the form of that direction. 65The draft order set out in paragraph 4 above has been proposed without the benefit of hearing from the parties. Accordingly that order will only be made if no application is made for a different order, or if, after hearing from the parties, I am nonetheless satisfied that it is an appropriate one. 66The orders I make are: (1)Set aside service of the defendant's statement of claim filed in the Dust Diseases Tribunal, proceedings No. DDT 96 of 2011 ( the DDT Statement of Claim ). (2)Declare that the Dust Diseases Tribunal has no power to hear or decide proceedings No. DDT 96 of 2011. (3)Declare that the Dust Diseases Tribunal is not a clearly inappropriate forum for the determination of the defendant's claim for damages against the plaintiff for damages for dust-related injuries as set out in the DDT Statement of Claim. (4)Order that, unless an application for a different order is made within seven days, each party is to pay their own costs of these proceedings. (5)Direct that, unless an application for a different form of direction is made within seven days, the defendant is to include a copy of these reasons, for the attention of the Registrar, together with any originating process in this Court in which substantially the same allegations are made as in the DDT Statement of Claim.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2012

(2000) 21 NSWCCR 150

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)