Wallaby Grip Limited v Gilchrist and 5 ors

CASES CITED : BHP Biliton Limited v Schultz [2004] HCA 61; 221 CLR 400 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503

Wallaby Grip Limited (Plaintiff) Robert Millen Gilchrist (1st Defendant) AMACA Pty Limited (Formerly James Hardie & Co Pty Limited) (2nd Defendant) PARTIES : Rohn Pty Limited (Formerly Horn Engineering (Pty) Limited) (3rd Defendant) Martin Engineering Co Pty Limited (4th Defendant) Comcare (5th Defendant) WorkCover Queensland (6th Defendant)

Mr DJ Russell SC (Plaintiff) Mr C Little SC with Mr S Tzouganatos (1st Defendant) COUNSEL : Miss C Hartley (2nd Defendant) Mr A Curtis (5th Defendant) Ms A Houlahan (6th Defendant)

Middletons (Plaintiff) Turner Freeman (1st Defendant) SOLICITORS : Holman Webb Lawyers Brisbane (2nd Defendant) Australian Government Solicitor (5th Defendant) Ferguson Bolton Lawyers (6th Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13650/07 Wallaby Grip Limited v Robert Millen Gilchrist

JUDGMENT 1 BELL J: By summons filed on 16 July 2007 the plaintiffs, Wallaby Grip Limited (Wallaby Grip) and Wallaby Grip (BAE) Pty Limited (In Liquidation) apply for orders (i) removing proceedings pending in the Dust Diseases Tribunal of New South Wales (the DDT) brought by the defendant, Robert Millen Gilchrist, against Wallaby Grip and a number of other defendants into this Court pursuant to s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Act), and (ii) transferring the proceedings to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Act. 2 The evidence led on Wallaby Grip's behalf comprised the affidavit of Vikash Raman, a solicitor with Middletons, who act for Wallaby Grip in the these proceedings and the proceedings before the DDT; two affidavits sworn by Zoe Patterson, a law graduate with Middletons and letters written by the partner responsible for the proceedings before the DDT on Wallaby Grip's behalf to Mr Thady Blundell who acts for Mr Gilchrist. 3 Mr Gilchrist opposes the transfer of the proceedings and affidavits sworn by Mr Blundell on 31 August and 15 October 2007 were read in his case. 4 None of the remaining defendants took an active part in the conduct of the proceedings.

5 Mr Gilchrist commenced proceedings against seven defendants in the DDT on 27 December 2006: Wallaby Grip (first defendant); Wallaby Grip (BAE) (second defendant); AMACA Pty Limited (formerly James Hardie & Co Pty Limited) (third defendant); Rohn Pty Limited (formerly Horn Engineering Pty Limited) (fourth defendant); Martin Engineering Co Pty Limited (fifth defendant); Comcare (sixth defendant); and WorkCover Queensland (seventh defendant). He claims damages arising out of his condition of asbestos related pleural disease (ARPD). His claim is in negligence and arises out of exposure to asbestos in New South Wales and in Queensland between 1957 and 1996. 6 In respect of his exposure to asbestos in New South Wales Mr Gilchrist claims provisional damages under s 11A of the Dust Diseases Tribunal Act 1989 (the DDT Act) and he seeks an order entitling him to claim further damages should he develop asbestosis, mesothelioma, lung cancer or asbestos induced carcinoma. 7 Section 11A of the DDT Act provides: 11A Award of provisional damages (1) This section applies to proceedings of the kind referred to in section 11 (1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought ( the injured person ) will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition. (2) The Tribunal may, in accordance with the rules: (a) award damages assessed on the assumption that the injured person will not develop another dust-related condition, and (b) award further damages at a future date if the injured person does develop another dust-related condition.

8 The provisions of the Act that govern the present application are as follows: 5 (2) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court (in this subsection referred to as the first court ), and (b) it appears to the first court that: … (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court. 9 Section 8 of the Act provides the mechanism for removal of proceedings into this Court. Relevantly it provides: 8(1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in: … (ii) a tribunal established by or under an Act, and (b) it appears to the Supreme Court that: … (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court. 10 The High Court considered the principles to be applied in dealing with an application such as the present in BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400. In their joint reasons Gleeson CJ, McHugh and Heydon JJ at 421 [14] said this: In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypotheses that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. 11 ARPD is classified as a divisible disease; each exposure to asbestos fibre constitutes a separate insult. Mr Gilchrist's condition is asserted to be the result of the accumulation of some hundreds or thousands of tortious exposures. The assessment of his damages will require that liability be apportioned between the defendants, taking into account both the length and the intensity of the exposure.

12 Mr Gilchrist filed a detailed statement of particulars in the DDT on 13 June 2007. This is a requirement under the DDT's claims resolution procedures for claims that require apportionment of liability between defendants. In the statement Mr Gilchrist details the history of his exposure to asbestos. This includes that between 1952 and 1957 Mr Gilchrist was undertaking an apprenticeship as a marine engineer fitter with Alexander Stephen & Sons, the operators of a shipyard. This employment was in Scotland. In the last three years of his employment Mr Gilchrist was exposed to asbestos lagging. He makes no claim in relation to his exposure to asbestos in Scotland. Mr Gilchrist describes the intensity of his exposure to asbestos during this period as ranging from medium to high. He estimates that 20 percent of his overall exposure to asbestos occurred during this period. 13 Mr Gilchrist's claim for provisional damages arising out of exposure to asbestos in New South Wales is brought against Wallaby Grip and AMACA and is confined to exposure in the years 1957 - 1961. During this time Mr Gilchrist was employed by Shaw Savill & Albion Co Ltd as a marine engineer and he worked on ships that travelled worldwide. Sydney was one of the main ports at which the ships in which Mr Gilchrist worked docked. He estimates that he was present in Sydney at least six times (and probably more) in the four years that he was employed by Shaw Savill. Quite an amount of maintenance was carried out on the ships while they were in Sydney. This involved the use of a lot of asbestos materials. Mr Gilchrist was present on these occasions and asserts that he had significant asbestos exposure. His stays in Sydney were for two to three weeks on each occasion. Mr Gilchrist particularises the intensity of his exposure to asbestos in these years as "high" when he was in Sydney and otherwise as low. He estimates that about 10 percent of his overall exposure to asbestos occurred while he was employed with Shaw Savill. 14 The next period that Mr Gilchrist particularises as one in which he was exposed to asbestos is between 1965 and 1969. He was employed by Horn Engineering as a fitter at Kangaroo Point, Brisbane. During this period he worked on ships belonging to the Royal Australian Navy (the RAN). Mr Gilchrist particularises the intensity of his exposure to asbestos as ranging from medium to very high during this period. He estimates that about 25 percent of his overall exposure to asbestos occurred during this period. 15 Mr Gilchrist's next exposure to asbestos is particularised as between March 1969 and 1972 when he was employed by Carbir Fishing Co. This employment was also in Queensland. He particularises the intensity of his exposure to asbestos in this employments as medium to high and only for short periods of time. He estimates that about five percent of his overall exposure to asbestos occurred during this period. 16 Mr Gilchrist's next period of exposure to asbestos was between 1976 and 1989, when he worked for Martin Engineering in Brisbane. He particularises his employment with Martin Engineering as exposing him to a medium to high intensity of asbestos. He estimates that about 37 percent of his overall exposure to asbestos occurred during this period. 17 Between 1989 and 1994 Mr Gilchrist states that he worked for various labour hire companies as a fitter and welder in the Brisbane area and that he was exposed to asbestos at various sites. Mr Gilchrist particularises the intensity of his exposure to asbestos in this period as low. He estimates that this period would account for about two percent of his overall exposure. 18 Mr Gilchrist says that between 1994 and 2001 he had minor exposure to asbestos while working for Kepple Cairncross, various labour hire companies, Stork ICM and Forgacs. It appears that each of these employments was in Queensland. Mr Gilchrist estimates that his exposure to asbestos in this period would account for not more than one percent of his overall exposure.

19 Comcare's liability is said to arise because of the claimed exposure to asbestos while working on ships belonging to the RAN. Rohn and Martin Engineering are both now deregistered. WorkCover Queensland has a statutory obligation with respect to the liabilities of each of these deregistered entities. 20 The Wallaby Grip defendants to Mr Gilchrist's claim and Amaca are sued in respect of their alleged tortious conduct in New South Wales and in Queensland. 21 Mr Gilchrist lives in Queensland. All of the treating medical practitioners and other medical practitioners consulted by him who are listed in his statement of particulars were consulted and practice in Queensland.

22 At the date of filing his statement of particulars Mr Gilchrist was aged 71 years and he had a life expectancy of about 13 years. He particularises his claim in a total of $234,321.15 damages (and provisional damages) for his condition of ARPD.

23 Mr Blundell has the conduct of the proceedings in the DDT on Mr Gilchrist's behalf. He has experience in representing plaintiffs in asbestos related litigation in the DDT and in the District and Supreme Court of Queensland. In his opinion additional costs will be incurred should the proceedings be transferred to the Supreme Court of Queensland. This was not in issue.

24 The DDT has a streamlined procedure for dealing with claims for damages for asbestos disease. A new claims resolution procedure was introduced in 2005. The procedure is governed by the DDT Regulation 2007. The plaintiff is required to file a statement of particulars. A timetable leading to compulsory mediation is then fixed. The statement of particulars in Mr Gilchrist's case was filed on 13 June 2007. An amended timetable was settled on 3 July 2007. The last date for filing cross-claims was 1 August 2007. Both the Wallaby Grip defendants have filed a reply in accordance with the timetable. Mr Gilchrist has been medically examined by Dr Edwards for the Wallaby Grip defendants and it appears that he has also been examined on behalf of AMACA. The last date for the defendants to file apportionment statements was 27 September. Arrangements have been made by Comcare and WorkCover Queensland for Mr Gilchrist to undergo medical examination on 29 October in Sydney. A mediator is to be appointed by 9 November. The last date for completion of mediation is 7 December. 25 The DDT's claims resolution procedure is designed to deal with the apportionment of liability between defendants. Claims are assessed by a contributions assessor by reference to the standard presumptions that are set out in the Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007. In Mr Blundell's experience the standard presumptions applied by the DDT in cases involving the apportionment of liability between defendants has resulted in considerable saving of time and expense. He is not aware of a like procedure that is available in the Supreme Court in Queensland.

26 Mr Blundell states that the claims resolution procedure has simplified proceedings in the DDT and it has been his experience that the bulk of cases have settled at mediation. 27 The Supreme Court of Queensland has a power to refer matter to mediation but it has no equivalent to the claims resolution procedure of the DDT. 28 Amaca, Comcare and WorkCover Queensland, who are the other active defendants in the proceedings brought by Mr Gilchrist, each wish the proceedings to remain in the DDT.

29 The parties to proceedings brought in the DDT have the benefit of the evidentiary and procedural provisions of s 25(3) and 25A of the DDT Act. Section 25(3) makes provision for historical and general medical evidence concerning dust exposure and dust diseases which has been admitted in other proceedings to be received as evidence in proceedings whether or not brought between the same parties. Section 25A makes provision for material obtained by way of discovery or interrogatories in other proceedings to be received whether or not the proceedings are between the same parties. 30 The capacity for the procedural and evidentiary provisions of the DDT Act to save time and expense in litigating claims was not in issue. There was no issue that the members of the DDT have expertise in dealing with asbestos claims. 31 The Wallaby Grip defendants have advised Mr Blundell that subject to proof of exposure to its products and to the diagnosis of an asbestos related disease being confirmed, liability will not be in issue between them and Mr Gilchrist in any proceedings. In the event the proceedings are transferred to the Supreme Court of Queensland the Wallaby Grip defendants will (i) not object to the tender of documents in Mr Gilchrist's case which he would be entitled to tender pursuant to s 25(3) or 25A of the DDT Act; and (ii) will not request further particulars of the statement of claim and will not require a list of documents or an affidavit to be sworn by Mr Gilchrist. 32 The evidence does not establish that any of the remaining defendants will give Mr Gilchrist the benefit of the operation of s 25(3) and s 25A of the DDT Act should the proceedings be transferred to the Supreme Court in Queensland. There is no evidence that the other defendants will make any concessions concerning liability or forgo any procedures available to them under the Uniform Civil Procedure Rules 1999 (Qld). In Mr Blundell's experience, in claims for damages for asbestos disease in the Supreme Court of Queensland lengthy requests for particulars of the claim are usually made.

33 In the event that Mr Gilchrist's claim does not settle at mediation it will proceed to a hearing before the DDT. It is accepted that the hearing is likely to come on more quickly before the DDT than if the proceeding is transferred to the Supreme Court of Queensland. 34 The focus of the submissions was upon the question of whether it is in the interests of justice that the proceedings be transferred to the Supreme Court of Queensland for the purposes of s 5(2)(iii) of the Act. The assumption was that if it were not there would be no occasion to order the removal of the proceedings into this Court under s 8 (1)(b)(ii). 35 If I decide that it is in the interests of justice that the proceedings be transferred to the Supreme Court of Queensland I must so order: BHP Billiton v Schultz per Gleeson CJ, McHugh and Heydon JJ at 421, [14]. The determination of this issue requires the balancing of the various factors which are discussed in BHP Billiton v Schultz. They are listed in the judgment of Gummow J at 435 [64]. I do not understand this to be an exhaustive statement of the considerations that may bear on the determination of the question but they were prominent in the submissions that were advanced by both Wallaby Grip and Mr Gilchrist.

36 One consideration is the personal circumstances of Mr Gilchrist. I accept Wallaby Grip's submission that this is a neutral consideration. Mr Gilchrist's condition is not life threatening. No feature of his claim makes the urgent disposition of the proceedings desirable in the interests of justice. For the same reason the circumstance that the DDT is able to fix an expedited hearing on an earlier date than the Supreme Court of Queensland is likely to be able to offer is also a neutral consideration because it is not asserted that Mr Gilchrist's claim requires expedition. 37 The Court is to take into account any delay by the party seeking transfer in bringing the application. There is none here. The last defendant to the claim brought by Mr Gilchrist was served on 20 June 2007. Wallaby Grip moved promptly to obtain an order for transfer. This, too, is a neutral consideration. 38 Counsel for Wallaby Grip submitted that the lex loci delicti of the torts is also a neutral consideration. Mr Gilchrist's claim is a common law claim in negligence arising out of exposure to asbestos in New South Wales and in Queensland. The liability of the defendants will be determined by the common law of Australia: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503.

39 Senior counsel for Mr Gilchrist submitted that his client's claim for provisional damages arising out of exposure to asbestos in New South Wales is one subject to the exclusive jurisdiction of the DDT under s 10 of the DDT Act. The rights conferred on Mr Gilchrist under s 11A of the DDT Act are valuable in that Mr Gilchrist may obtain an order that preserves his right to make a future claim for damages against Wallaby Grip and Amaca should he develop another dust-related condition. Rule 5 of the Dust Diseases Tribunal Rules makes procedural provision for the award of provisional damages. There is no equivalent to Rule 5 of the DDT Rules in the Uniform Civil Procedure Rules 1999 (Qld). In counsel's submission the determination of the question of whether s 11A is procedural or substantive is itself a difficult one. It is a question that will not arise if the proceedings remain in the DDT. He submitted that no question of forum shopping arises since the claim for provisional damages is a claim brought with respect to exposure in New South Wales. 40 If the provisions of s 11A are substantive they will apply to Mr Gilchrist's claim in relation to his exposure to asbestos in New South Wales should it be transferred to the Supreme Court of Queensland. I approach this application for present purposes upon an acceptance of Wallaby Grip's submission that if the provisions of s 11A are procedural there is no reason to hold that the interests of justice favour the proceedings remaining in New South Wales to confer the benefit of the provision on Mr Gilchrist: BHP Billiton v Schultz per Gummow J at 445 [100]. 41 Wallaby Grip submitted that there was no feature of Mr Gilchrist's claim which made it desirable that it remain in the DDT because of the acknowledged expertise of its members in dealing with dust disease related claims. Mr Gilchrist's claim is a common law claim for damages arising out of the alleged negligence of the defendants in exposing him to a noxious substance. It is a claim which a common law judge of the Supreme Court of Queensland may be expected to deal with in the ordinary course. The procedural and evidentiary provisions of the DDT Act were submitted to be neutral given the concessions that Wallaby Grip has made concerning its approach to the conduct of the proceedings if they are transferred to the Supreme Court of Queensland. 42 Mr Gilchrist's claim is a relatively modest one which should it be successful will require the apportionment of liability among several defendants. The DDT has special procedures for dealing efficiently with questions of apportionment. A determination by a Contributions Assessor of the questions of apportionment between the defendants is to be made before the mediation which must occur on or before 4 December 2007. It may be that one or more of the parties will be dissatisfied with the assessment and that Mr Gilchrist's claim will require to be determined by the DDT at a hearing. Nonetheless the availability of the DDT's claims resolution procedure when taken with the wish of all of the parties save the Wallaby Grip defendants that the proceedings remain in the DDT is to my mind a consideration which is against an order for transfer. There exists the real prospect that the claim may be promptly resolved within a matter of weeks with significant saving in hearing time and costs should it remain in the DDT. 43 I do not find that should the proceedings be transferred the hearing in the Supreme Court of Queensland is likely to be no longer than a hearing before the DDT by reason of the concessions that Wallaby Grip has made. In the event the proceedings are transferred to the Supreme Court of Queensland there is no evidence as to the stance that the other defendants will take. It may be that consent will not be forthcoming to the admission of evidence that would have been admitted under s25(3) or s25A of the DDT Act. 44 I consider it reasonable to approach the application on the basis that if the proceedings are transferred to the Supreme Court of Queensland any hearing is likely to take longer than a hearing before the DDT. In this respect the expertise of the members of the DDT in the determining the apportionment of liability assumes some significance. The costs of the proceedings should they be transferred to the Supreme Court of Queensland are likely to be greater than should they remain in the DDT. 45 Considerations of comparative costs, the expertise of the DDT and comparative evidentiary considerations in my opinion favour the proceedings remaining in the DDT. 46 In the event the proceedings are transferred to the Supreme Court of Queensland the parties have an unrestricted right of appeal. The right of appeal from the determination of the DDT is confined: s 32 of the DDT Act. This is a consideration which favours transfer.

47 The principal thrust of Wallaby Grip's submission is that the connection between Mr Gilchrist's claim and New South Wales is relatively slight: some 18 weeks of exposure to asbestos as against exposure in Queensland over a span of 29 years. In such a case and where there is no requirement for an urgent hearing the reasonable expectation of the parties was said to be that the claim would be determined by the Queensland Court. Mr Gilchrist is a resident of Queensland and the medical evidence on which he will rely is of doctors who practice in Queensland.

48 It is Mr Gilchrist's case that 10 percent of his overall exposure to asbestos occurred in New South Wales and is the subject of his claim for provisional damages. His exposure in Queensland is estimated as 70 percent of his overall exposure. The Queensland component of Mr Gilchrist's claim is greater than the New South Wales component however the link to New South Wales is more than merely nominal. To my mind this takes away from the force of the submission directed to the reasonable expectation of the parties as to the court in which the proceedings would be brought. 49 In my opinion, weighing the factors to which I have referred, it is not otherwise in the interests of justice that Mr Gilchrist's claim be determined by the Supreme Court of Queensland. His claim is one that has a real link to New South Wales. The specialised procedures and expertise of the DDT suggest that questions of apportionment are likely to be determined with savings in hearing time and costs and it is the wish of all the parties save the Wallaby Grip defendants that the proceedings remain in the DDT.

2. The plaintiffs are to pay the defendants' costs.

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