Eden v Amaca Pty Ltd & Ors [2007] VSC 374 (3 October 2007)

	Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

ARTHUR RON EDEN	Plaintiff

v

AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD) & ORS	Defendants

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2007
DATE OF JUDGMENT:	3 October 2007
CASE MAY BE CITED AS:	Eden v Amaca Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 374

PRACTICE AND PROCEDURE – Cross-vesting application – Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5 – Plaintiff resident in Tasmania – Claim for damages for exposure to asbestos in Queensland – Plaintiff’s short life expectancy – Application to transfer refused.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B F Quinn	Slater & Gordon

For the Second-named Defendant	Dr S Keeling	Monahan & Rowell

1 This is an application by the second defendant, Seltsam Pty Ltd, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) (“the Act”) for an order that the proceeding be transferred to the Supreme Court of Tasmania, or, alternatively, to the Supreme Court of Queensland. The first, third, fourth and fifth defendants have signified that they neither consent to, nor oppose, the application.

2 The proceeding was commenced by a generally indorsed writ on 27 October 2006. Subsequently, the names of the third and fourth defendants were amended. The amended writ, with a statement of claim, was served on 7 September 2007. On the hearing before me an amended statement of claim was filed and served. The plaintiff claims damages arising out of exposure to asbestos in the course of his work as a plumber between 1958 and 1976. The plaintiff claims that, as a result of that exposure, he suffered lung cancer, which was first diagnosed in December 2006.

3 The nature of the plaintiff’s claim is set out in his amended statement of claim. The first defendant manufactured and supplied asbestos cement building products and materials, and thermal insulation containing asbestos. The second defendant manufactured and supplied asbestos cement building products and materials including asbestos cement sheets. The third and fourth defendants manufactured and supplied asbestos cement building products and materials, including asbestos cement sheets, as well as acting as agents for the supply and sale of lagging manufactured by the first defendant. The fifth defendant is the statutory insurer for the State of Queensland, and is liable to pay damages awarded to the plaintiff in respect of his employment with Watson’s Plumbing.

4 The statement of claim further pleads that between 1958 and 1962, the plaintiff was employed by Watson’s Plumbing in Brisbane as a licensed plumber. It is pleaded that in the course of that work the plaintiff was exposed to asbestos products. Between 1962 and 1976, the plaintiff worked as a plumber and pipe fitter in Queensland. It is again alleged that he was exposed to asbestos products throughout that period. The plaintiff pleads that he was owed duties of care by each of the first, second, third and fourth defendants, and Watson’s Plumbing, and that his exposure to asbestos was caused by the negligence of the first, second, third and fourth defendants and, between 1958 and 1962, Watson’s Plumbing.

5 The plaintiff resides with his wife in Devonport, Tasmania. The registered offices of each of the first to fourth defendants are in New South Wales. The fifth-named defendant is, of course, a Queensland statutory corporation.

6 The plaintiff was born in June 1927 and is therefore 80 years of age. In November 2006, he was diagnosed with metastitic squamous cell carcinoma in the right middle lobe of his lung. In September 2007, he presented again at the Mercy Hospital with increasing shortness of breath, back pain secondary to his bone metastases, de-conditioning and tiredness. His treating doctor, Dr Jain, stated that he has terminal advanced metastitic non-small cell carcinoma of the lung. His prognosis is poor. While it is difficult to be exact, Dr Jain would expect that the plaintiff would survive only for a matter of months rather than years.

7 The plaintiff’s solicitor, Mr Hammond, has sworn two affidavits. In his second affidavit he states that he expects that the issues which will arise in the case include those of foreseeability of risk, breach of duty and causation. It is also expected that the defendants will rely on contributory negligence. Mr Hammond states that it is anticipated that, in addition to the plaintiff’s treating doctor, the plaintiff will also rely on six expert witnesses. Two of those witnesses reside in Western Australia, one resides in Victoria, one in Queensland, one in New South Wales and one in South Australia.

8 Section 5(2)(b)(iii) of the Act provides that where a proceeding is pending in this Court, and it appears to be “otherwise in the interests of justice” that the proceeding be determined by the Supreme Court of another State or Territory, this Court shall transfer the proceeding to the other Court. It is to be noted that the terms of s 5(2)(b) are imperative. If I reach the conclusion that it is in the interests of justice that the proceeding be heard by the Supreme Court of Tasmania or Queensland, then I am obliged to transfer the proceeding to that Court.[1]

9 The principles which govern an application under s 5(2)(b) are, by and large, uncontroversial. They received detailed consideration by the High Court in BHP Billiton Limited v Schultz & Ors.[2] In that case, the Court held that the primary judge erred in considering that the choice of forum made by the plaintiff was a matter which should be accorded weight in determining where the interests of justice lie. Further, the applicable test is not whether this Court is a “clearly inappropriate” forum. Rather, the test is whether, in the interests of justice, the Court of another State or Territory is more appropriate.[3]

10 Each case depends upon its own particular facts. In determining which is the more appropriate forum, a number of facts are taken into account. The question of the convenience of, and expense to, the parties is important. The Court also takes into account what has been referred to as “the preponderance of connecting factors” in the case with a particular forum.[4] Generally, in a case such as this, significant weight is attached to the place of the tortious wrong which is relied on by the plaintiff. That factor is considered to be relevant for two reasons. First, the courts of the forum in which the cause of action arose will be more experienced in applying the law of that forum. Secondly, where the case is heard in the forum in which the cause of action arose, it is possible to avoid debates concerning procedural and substantive law. Such debates are unhelpful in litigation, as they add a layer of uncertainty to the outcome.[5]

11 In cases in which the plaintiff’s health is in peril, and in particular where the plaintiff has a short life expectancy, substantial weight is attached to the question whether the Court of a particular forum is able to dispose of the case expeditiously and efficiently.[6]

12 The question whether the applicant bears an onus of proof, or an onus of persuasion, is at present unsettled, at least in Victoria.[7] In BHP Billiton Limited v Schultz, Gummow J[8] expressed the view that it was inappropriate to speak in terms of an applicant bearing an onus of proof. That view was favoured by Dodds-Streeton J in McLeod & Anor v Munro[9] and by Harper J in Holt v Forehan.[10] On the other hand, in Ewins v BHP Billiton Limited, Gillard J[11] was not prepared to accept that the views of Gummow J in Schultz represented the law. In this case, the issue of the onus of proof is academic, as there are no competing issues of fact which I must resolve. The question whether there is an “onus of persuasion” is answered by the terms of s 5(2)(b). In its express terms, s 5(2)(b) empowers me to transfer the proceeding to another Court only if it is “otherwise in the interests of justice” that the proceeding be determined in that Court. If I do not consider that it is “otherwise in the interests of justice” that the Court of either Tasmania or Queensland determine the case, then I have no power to transfer the proceeding to that Court. It is the applicant who seeks to persuade me that it is otherwise in the interests of justice that the Supreme Court of Tasmania, or alternatively of Queensland, determine the case. To that extent, an “onus” of persuasion falls on the applicant.[12]

13 Dr Keeling, who appeared on behalf of the second defendant, submitted that there were no connecting factors between the cause of action and the State of Victoria. The plaintiff is a Tasmanian resident. He contracted his illness in Tasmania. All his doctors are in Tasmania. The place of the tort was Queensland, and therefore the substantive law of that State would apply. In addition, in his first statement of claim, the plaintiff also pleaded that he was exposed to asbestos while working in Tasmania between 1976 and 1979. The amended statement of claim has deleted that part of the claim. Nevertheless, there is a potential that the fifth defendant will rely on that circumstance to seek contribution against the first and second defendants, arising out of an exposure of the plaintiff to asbestos while working in Tasmania from 1976 to 1979.

14 In addition, it was submitted that the Supreme Court of Tasmania is capable of hearing and determining the case expeditiously. In support of that proposition, the second defendant relies on the affidavit of its solicitor, Mr Rowell, who has referred to two cases which have been transferred from Victoria to Tasmania, and which have been subject to expeditious treatment in that State. In both those cases, the plaintiff claimed to have suffered mesothelioma arising out of his exposure to asbestos. The second defendant also relies on an affidavit of Ms Audrey Mills, a legal practitioner in Tasmania. Ms Mills states that she has spoken to the Registrar of the Supreme Court of Tasmania, and that she has been told by the Registrar that a mediation could be organised for the case in late October or November 2007, and that, if the case proceeded to trial, it is likely the Court would be able to hear the action in December 2007, based on an estimated hearing of three to five sitting days.

15 Dr Keeling also relied on the delay which has occurred in the prosecution of the plaintiff’s claim. The plaintiff was diagnosed in November 2006, but the proceeding was not served on the defendants until 11 September 2007. If the proceeding had been prosecuted expeditiously, the plaintiff would not now need to rely on the proposition that the case should be heard in the Court which can give it the earliest hearing date.

16 In response Mr Quinn, who appeared for the plaintiff, submitted that this was not a “Tasmanian” case. The only connection with Tasmania is that the plaintiff resides in Tasmania and his treating doctors are there. However, the plaintiff resides in Devonport, which is a three hour drive from Hobart. It was submitted that the plaintiff would be able to reach Melbourne by aeroplane more speedily than he would be able to reach Hobart by motor vehicle. While Queensland is the place where the tort occurred, nonetheless the action will be decided according to common law principles. Queensland statute law will only play a minor part, in relation to issues such as the appropriate discount rate and the like. It was further submitted that the Supreme Court of Victoria has developed a particular expertise in hearing and disposing of cases of this type with expedition. It is expected that the case will last for more than three to five days, and thus it is uncertain whether a speedy hearing can be given to it in Tasmania.

17 In evaluating the competing submissions, it must, first, be acknowledged that there are few, if any, factors which connect the litigation to the State of Victoria. The plaintiff’s solicitors’ main office is in Victoria. However, as recognised in Ewins,[13] that factor is of minor significance. In any event, the solicitor who is mainly responsible for the conduct of the plaintiff’s action conducts his practice in Queensland. The plaintiff resides in north west Tasmania. The debate whether the Supreme Court of Victoria or the Supreme Court of Tasmania would be more accessible to him is, regrettably, probably academic. I doubt that the plaintiff would be able to make the trip to either Court, given his parlous medical state. In cases such as this, it is common for evidence to be taken from the plaintiff de bene esse, and for that evidence to be presented at the trial.

18 It is clear that the strongest connection of the case is to the State of Queensland. However, the reasons why the High Court, in Schultz,[14] considered that that factor was significant, are not as applicable in this case. As Mr Quinn has submitted, the case will be determined primarily according to the common law, which is the same in Queensland as in Victoria (or Tasmania). Some issues will be decided according to Queensland statute law, such as the applicable discount rate. However, by and large the same principles of law would apply, whether the case was heard in Victoria, Queensland or Tasmania.

19 It is true that there has been substantial delay between the plaintiff’s diagnosis with cancer, and the service of these proceedings on the defendants. However, that does not alter the fact that the plaintiff is terminally ill, with a short life expectancy. The delay has given greater prominence to the debate as to which Court would be able to afford the plaintiff the more expeditious hearing. However, that is not a reason for giving weight to the issue of delay.

20 Ultimately, the critical question is whether it is in the interests of justice that the case be transferred to Tasmania. In this context, I consider it is relevant that neither the second defendant nor any other defendant has put forward any material showing that it would be materially more inconvenient or expensive for that defendant to defend the proceeding in Victoria, than in Tasmania (or in Queensland). The defendants have not suggested that if the proceeding were held in Victoria, rather than Tasmania or Queensland, it would be more difficult, or more expensive, for them to conduct the case in this State, or to have their witnesses available in this State. Nor have the defendants pointed to any other disadvantage to which they might be subjected should the case proceed in Victoria, rather than in Tasmania or Queensland.

21 Further, I consider that it is open to me to take judicial notice of the circumstance that, for a significant period of time, this Court has been able to afford claimants in the position of the plaintiff a speedy hearing and determination of their case, should it remain unresolved. On behalf of the second defendant it was submitted that the Supreme Court of Tasmania has an equal capacity to do so. However, the material which has been put before me is, I consider, not conclusive of that fact. The two proceedings referred to by Mr Rowell in his affidavit have not yet proceeded to trial. The first was resolved at mediation. In the second proceeding, the mediation has commenced, but not been completed. Ms Mills’ affidavit does provide comfort that the Supreme Court of Tasmania would be able to hear the case in December. However, the advice given to Ms Mills was based on an estimated hearing of three to five sitting days. There are five defendants in the current proceeding. It is realistic to expect that the issues, referred to by Mr Hammond in his affidavit, may well arise. I would also expect a number of other issues to arise, including those relating to contribution. Accordingly, I doubt that the parties would be able to give a realistic estimate to either Court that the trial could be completed in three to five sitting days, or anything like it. In those circumstances, there is no evidence that the case could be heard as expeditiously as that indicated by Ms Mills, if the case were transferred to Tasmania.

22 In saying that, I do not depreciate at all the capability of the Supreme Court of Tasmania to hear and determine the case. However, it is relevant that in the present application I am able to take judicial notice of the circumstance that, if this case remained in Victoria, it could be heard with significant expedition. I am left without any persuasive evidence before me that the Supreme Court of Tasmania would be able to provide the case with such a speedy hearing and determination.

23 Furthermore, the Supreme Court of this State has, over the years, developed procedures and expertise which enable it to hear and determine cases of this type with substantial expedition.[15] That is not to say that the Supreme Court of Tasmania would not be fully competent to hear and determine the case itself. However, the capability of the Supreme Court of this State to hear and determine the case in such a manner is, I consider, another relevant circumstance to be taken into account in determining whether the interests of justice require that the case be transferred either to Tasmania or Queensland, as sought by the second defendant.

24 Bearing in mind all of those matters, it seems clear that the second defendant has not been able to point to any particular disadvantage or inconvenience to it, or its witnesses, should the case be heard in this State. Although the connecting factors to this State are slight, if non-existent, nonetheless, for the reasons which I have set out above, I do not accept that it is “otherwise in the interests of justice” that the case be transferred from the Supreme Court of Victoria to the Supreme Court of Tasmania or of Queensland for determination. For those reasons, I have reached the conclusion that the application by the second defendant to transfer the proceeding should fail, and that the second defendant’s summons dated 12 September 2007 should be dismissed.

^[5] BHP Billiton Limited v Shultz & Ors [2004] HCA 61; (2004) 221 CLR 400, [99] (Gummow J, with whom Hayne J agreed); [165], [170] (Kirby J); [242], [259] (Callinan J).

^[6] Ewins v BHP Billiton Limited [2005] VSC 4, [29]-[31]; British American Tobacco Australia Limited v Gordon [2007] NSWSC 230, [43]-[47] (Brereton J).

^[7] Compare McLeod & GDK Financial Solutions Pty Ltd v Munro [2005] VSC 375, [37] (Dodds-Streeton J).