This application for proceedings in the Dust Diseases Tribunal of New South Wales (DDT) to be transferred to this Court, and thereafter to the Supreme Court of Queensland, came before me in the Duty List two days ago. Due to the helpful refinement of issues achieved by senior counsel for the first, second and third plaintiffs (to whom I shall refer compendiously as the applicants) and counsel for the fifth, sixth and seventh defendants (to whom I shall compendiously refer as the respondents), I can be brief.
Mr Lynn Maclean (the first defendant, to whom I shall refer as the plaintiff) regrettably suffers from the grave illness of mesothelioma. He allegedly contracted it while working at a mill in Bundaberg, Queensland. He has commenced proceedings against his former employer for negligence, on the basis of his alleged exposure to asbestos at work. His employer (Amaca Pty Limited, the second defendant) has cross-claimed against manufacturers and suppliers of asbestos, some of whom are the applicants.
Proceedings were commenced in the DDT by the plaintiff on 28 October 2016. The cross-claim against the applicants was filed on 3 February 2017. Chiefly on the basis that the matter has no real connection with New South Wales, the applicants, by way of a summons filed 13 March 2017, commenced this application.
Both counsel were agreed that, pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the real question for me is whether it would be "in the interests of justice" for the matter to be transferred to Queensland: see s 5(2)(b)(iii) of that Act.
Submissions of counsel for the applicants
The submissions of senior counsel for the applicants may be summarised as follows.
First, the matter has no connection with New South Wales, whether by way of the tortious events said to have occurred, the residence of the plaintiff or witnesses, the location of expert medical witnesses, including treating doctors, or anything else. Prima facie, it was said, this matter arises from Queensland and should be resolved in Queensland.
Secondly, although the vast bulk of the law that will need to be applied (whether in New South Wales or Queensland) is the common law of negligence that existed before the commencement of the Civil Liability Act 2002 (NSW) and its analogues, there are some heads of damage that will need to be determined in accordance with the law of Queensland, and not that of New South Wales.
Thirdly, the evidence shows that, in appropriate matters, the Supreme Court of Queensland is able to move very quickly, in the same way that this Court can do when necessary.
Fourthly, it is true that the question of contribution may well arise, and may well be complex. It is also true that the DDT has a system of mediation whereby such questions can be resolved promptly. Having said that, it was not disputed before me that that system is not completely binding on the parties, and therefore does not guarantee speedy permanent resolution. As well as that, pursuant to the rules of the Supreme Court of Queensland, the applicants are quite content to replicate those facilitative aspects of the procedures of the DDT.
Fifthly, he submitted that it is important that the plaintiff himself (who was represented before me) does not oppose the transfer. Nor did any other parties, other than the respondents.
Sixthly, I was taken to judgments of single judges of this Court demonstrating a readiness to make the order sought in similar circumstances.
Seventhly and finally, senior counsel made it clear that, even if his application were crowned with success, his clients would not seek the costs of the disputed hearing before me.
Submissions of counsel for the respondents
Counsel for the respondents made the following submissions in response.
First, he accepted that the matter has little real connection with New South Wales. His submission was, however, that (unlike criminal proceedings) the need for territorial nexus is quite limited in civil proceedings within the federal structure of Australian courts in this country. If it be the case, he submitted, that the applicants cannot demonstrate that it is "in the interests of justice" for the matter to be transferred, then it should simply stay in the jurisdiction in which it was commenced.
Secondly, he submitted that, regrettably, time is indeed of the essence in this matter. There could be, he submitted, delays not only in recommencing the matter in Queensland, but also in advancing it there.
Thirdly, he submitted that the evidence from a solicitor expert in the conduct of such matters in that jurisdiction strongly suggests that the particular question of contribution may take quite some time to resolve.
Fourthly, he submitted that I would accept that the DDT has a facilitative mechanism that permits disputes such as this one to be resolved very quickly. There is no reason, he submitted, why the parties should not be able to take advantage of that valuable resource.
In short, he submitted that, in all of the circumstances, the matter should remain where it commenced; that is, in the specialist tribunal best suited for the speedy and efficient resolution of such matters.
Determination
Turning to my determination, I accept generally that the DDT has indeed developed a specialist expertise and specialist mechanisms with regard to diseases such as the one from which the plaintiff is suffering. I also accept the joint position of the parties that Queensland possesses no such specialist tribunal.
Having said that, I consider that a very general starting point is that a tort allegedly committed in a State or Territory of Australia, the Parliament of which has determined how such matters should be resolved within that jurisdiction, should be resolved there.
Secondly, I think it important that (apart from the commencement of proceedings here, and perhaps the presence of one or two registered offices or firms of solicitors in Sydney), the matter has no real connection with New South Wales whatsoever. In fact, the tort is alleged to have been committed just over 1,000km north of the Registry of this Court. Questions of convenience surely argue powerfully for the matter to be resolved in Queensland.
Thirdly, I am respectfully confident that the Supreme Court of that State is soundly able to accommodate, both procedurally and logistically, the urgency of this matter.
Fourthly, my determination is founded as well on my confidence that the applicants will do all that is reasonably practicable to advance the matter promptly in that jurisdiction.
Fifthly, I accept that the DDT has a particular regime of determining contribution by assessment that has its advantages. But, again, I am confident that that regime can, to a significant degree, be replicated by the approach suggested by the solicitor for the applicants.
Sixthly and finally, the fact that part of the claim will require application of the law of Queensland, and not the law of New South Wales, to my mind argues in favour of transfer. Other things being equal, it is surely preferable for a Queensland judge to apply Queensland law, with which he or she is intimately familiar, than for a New South Wales judge to do so.
In short, for the foregoing reasons, I am affirmatively satisfied that it is in the interests of justice for this matter to be transferred to Queensland. The statutory test having been made out, I propose to make the substantive orders sought in the summons of the applicants filed on 13 March 2017 (in the circumstance of the matter leaving this Court forthwith, I do not consider that I should make any orders of a procedural nature).
Orders
I make the following orders:
1. Pursuant to s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), Proceedings No 278 of 2016 pending in the Dust Diseases Tribunal of New South Wales commenced by Mr Lynn David Maclean against Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) to which Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) then filed a cross-claim, statement of cross-claim against CSR Limited, Wallaby Grip Limited, Wallaby Grip (BAE) Pty Limited (in liquidation), Wallaby Grip (NSW) Pty Limited (in liquidation), Klinger Limited, Bundaberg Walkers Engineering Ltd, Bundaberg Distilling Investments Pty Ltd and Bundaberg Sugar Group Ltd, are removed from the Dust Diseases Tribunal of New South Wales into the Common Law Division of this Court.
2. Pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the above proceedings are transferred to the Supreme Court of Queensland.
3. Each party is to bear its own costs.
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Decision last updated: 16 April 2018