Dust Diseases Tribunal of New South Wales CITATION : Scott v Resi Corporation [2004] NSWDDT 2 PARTIES : Robert Scott Resi Corporation MATTER NUMBER(S) : 9 of 2004 JUDGMENT OF: O'Meally P at 1 CATCHWORDS: :- LEGISLATION CITED: Service and Execution of Process Act 1992, ss 20, 20(2), 20(3) & 20(4) 9th schedule, Supreme Court SA Rules 1987 Hearne v The Commonwealth (2000) 21 NSWCCR 203; Broken Hill Pty Co Ltd v Zunic 22 NSWCCR 92; Hewish v Washgab (1990); Williams v State of South Australia; CASES CITED: Orica Ltd and Anor v CGU Insurance Ltd [2003] NSWCA 331; CSR Ltd & Anor v Thomson; Thompson v CSR Ltd & Anor [2003] NSWCA 329 at 41; Pfeiffer Pty Ltd v Rogerson (2000) 20 NSWCCR 111; Regie National Des Usines Renault SA v Zhang [2002] HCA 10 (14 March 2002); Julia Farr Services Inc v Hayes (2003) NSWCA 37 at 83 DATES OF HEARING: 11/2/2004 EX TEMPORE JUDGMENT DATE : 02/11/2004 FOR PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman. LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr B Ferrari instructed by Thompson Cooper Lawyers Pty Ltd. JUDGMENT: 1. This is an application by the Resi Corporation that the proceedings commenced against it by the plaintiff Robert Scott be stayed on the basis of the application of the provisions of s 20 of the Service and Execution of Process Act 1992. 2. The plaintiff and his wife have since 1976 resided in the State of New South Wales. The plaintiff has three adult children who live nearby and it is proposed in this case to call the plaintiff's wife and one of his children. 3. The plaintiff, currently 64 years of age, was diagnosed with mesothelioma in July 2003. Dr Burns in his reported history states that from July 1976 until 1982 the plaintiff was a manager of the Broken Hill Community Credit Union. From 1982 the plaintiff has worked for Elcom Credit Union at Doyalson in New South Wales until late 2003 when ill health forced him to cease work. 4. The plaintiff has been treated by a number of medical practitioners as contained in the affidavit of Judith Joan Horobin (Exhibit MNXR1) and it is proposed that the plaintiff will call and rely upon all those doctors, all of whom reside in New South Wales and carry on practice in New South Wales. The plaintiff has, and is being treated at Gosford Hospital, Strathfield Hospital and Royal Prince Alfred Hospital. It is proposed that the medical practitioners who have attended to the plaintiff for treatment purposes in the abovementioned hospital will be called to give evidence. 5. The plaintiff is at present undertaking a course of chemotherapy in New South Wales and it is proposed that such treatment continue on a three weekly basis for the next few months. The plaintiff is unable to travel to South Australia by reason of his medical condition. Moreover, the financial circumstances of the plaintiff render it unfeasible for him to meet the costs of all witnesses travelling to South Australia for the purpose of giving evidence. 6. The defendant has tendered, for all relevant purposes, the evidence of Michael Brown, a legal practitioner in the Supreme Court of South Australia. It is also not in issue between the parties that the defendant corporation has been a defendant in a number of matters relating to these diseases in this Tribunal. 7. The evidence of Mr Brown I did not consider was of much assistance in respect of the matters which I have to consider because he was unaware or had no knowledge of any costs agreement between the defendant and its solicitors, nor has his firm his ever acted for the defendant corporation, although there has been some consultation in regard to this issue. He has not engaged in any asbestos litigation or dealt with any mesothelioma or any related disease. 8. I did not think in those circumstances that in dealing with the issues of which I am faced, his evidence was of much assistance. 9. In relation to paragraph 3 of Mr Brown's affidavit in dealing with costs in the matter he merely reiterated what is set forth in the 9th schedule of the Supreme Court Rules 1987 of the Supreme Court of South Australia. He also indicated that the hearing in the Dust Diseases Tribunal may render more additional costs than if the matter was heard in South Australia, but given the circumstances of this case where the plaintiff and all his witnesses reside in New South Wales, in my view it can be hardly be the case that additional costs will be incurred. 10. There is no dispute that the exposure to asbestos occurred solely in the State of South Australia. There is no dispute that the law applicable is the law of that State in relation to the relevant issues in this matter. 11. I accept that the District Court of South Australia, in a matter to be heard as a matter of urgency, would give a priority listing and attempt to list the trial as soon as practicable. From the evidence of Mr Brown it seems that the District Court of South Australia can travel to homes and other locations if necessary for hearings in order to dispose of cases expeditiously. I assume that that would depend upon the matter being listed and considered in light of the evidence in the plaintiff's case being purely in New South Wales. 12. Part of the case in terms of the issues to be determined relates to the question of what evidence might need to be called by the defendant. The defendant has not put before me any particular evidence it seeks to call in relation to this matter in South Australia. I think the plaintiff's submissions are significant in regard to what the issues are, or would be in this case. They should or ought to be known by the defendant as the power station, the subject of these proceedings, has been the subject of other matters involving the defendant in this Tribunal. 13. Without knowing who the witnesses are and what evidence they will give and in relation to what issues, it is somewhat difficult to determine whether or not there is a necessity to have part of the case heard in South Australia. However, even if this were the case it would seem to me that the District Court of South Australia is no more in these circumstances an appropriate forum than the Dust Diseases Tribunal. 14. The Tribunal, as is now well known, specialises in cases of this kind and is experienced in travelling to other locations and taking evidence. 15. It seems to me clear that the determination in this matter (which in effect has been agreed between the parties) is a consideration of s 20 and its provisions in relation to the discretion that is to be exercised. The defendant concedes that the plaintiff's case is entirely in New South Wales on the question of damages. 16. The subject matter in this notice of motion has been the subject matter of a number of notices of motion in this Tribunal, and before the Supreme Court. One only needs to refer to Hearne v The Commonwealth (2000) 21 NSWCCR at 203 and to the matter of Broken Hill Pty Co Ltd v Zunic 22 NSWCCR at 92, and to two unreported judgments in the Tribunal of his Honour Judge Maguire of 24 April 2003 and of his Honour Judge Duck of 9 January 2004, being Hewish v Washgab 1990 Ltd and Robert Malcom Williams v The State of South Australia. 17. An analysis of these cases, in so far as they relate to the provisions of the Service and Execution of Process Act 1992, s 20(2) permits the defendant to apply (as it has done) for a stay of proceedings. If the Court is satisfied that a court of another state, that has jurisdiction to determine all the matters in issue between the parties, is the appropriate court to determine those matters, such an order may be made (s 20(3)). 18. Section 20(4) provides the matters that the Tribunal is to take into account in determining whether a court of another state is the appropriate court for the proceedings. That section specifies a number of subsections which in my view have been sensibly applied in the matter of Williams v The State of South Australia (supra). 19. When it comes therefore to considering the place of residence of the party and of the witnesses likely to be called in the proceedings it is overwhelmingly the fact (given the state of the evidence before me) that it will be in New South Wales. 20. Given what I have already said about the plaintiff's state of residence, his medical treatment, the witnesses to be called and that there is not any dispute that given the damage pleaded, (see Orica Ltd and Anor v CGU Insurance Ltd [2003] NSWCA 331 and the decision of Ipp J in CSR Limited & Anor v Thompson; Thompson v CSR Limited & Anor [2003] NSWCA 329 at 41 and 45) the tort was completed in New South Wales. The place of exposure was in South Australia. 21. As far as the financial circumstances of the parties are concerned I have already referred to the financial circumstances of the plaintiff in relation to any proceedings in South Australia, even if he were fit to travel. As far as subsection (d) is concerned it is agreed between the parties that no agreement between the parties about the Court or place in which the proceedings should be instituted exists. 22. The law to be applied will be the law of South Australia pursuant to the authority of John Pfeiffer Pty Ltd v Rogerson (2000) 20 NSWCCR 111, reaffirmed in Regie National Des Usines Renault SA v Zhang [2002] HCA 10 (14 March 2002). In those circumstances it is my view that the District Court of South Australia is in no better position than the Tribunal to apply the appropriate law. 23. The requirement to consider subsection (4) does not bear on the present case I am unaware of any related or similar proceedings. I do not consider the fact that proceedings have been commenced in this Tribunal in New South Wales. 24. Giles JA in Julia Farr Services Inc v Hayes (2003) NSWCA 37 at 83 (as referred to by his Honour Duck J in Williams) permits consideration of other relevant matters. Such factors would be the state of health of the plaintiff and the nature of the condition that he suffers and its etiology. Also consideration is to be given to the fact that the plaintiff at present is undergoing chemotherapy and will be for the next months and he will suffer from the effects of it. There is also the limitation in respect to his life expectancy to be considered. 25. I think that the overwhelming factor in this case is that the plaintiff, his witnesses and his medical treatment have all occurred in New South Wales. Much of the other matters are neutral. The fact there may be some evidence in South Australia would not persuade me that the Dust Diseases Tribunal is not an appropriate court for these proceedings. I add that applications of this kind, given the rulings that have emanated out of this Tribunal, makes the issue very much a matter of the particular circumstances. The exercise of the discretion is to be considered in the context of the circumstances of each case as it is applied to the section. 26. I refuse in those circumstances to order a stay of proceedings. 27. I order that costs be costs in the cause. 28. I give the parties liberty to apply. Mr J Sharpe instructed by Turner Freeman appeared for the plaintiff Mr B Ferrari instructed by Thompson Cooper Lawyers Pty Ltd appeared for the defendant 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.