BHP Billiton Ltd v Utting & Anor [2005] NSWSC 260

New South Wales Supreme Court

CITATION : BHP Billiton Ltd v Utting & Anor [2005] NSWSC 260

HEARING DATE(S) : 24 March 2005

JUDGMENT DATE : 1 April 2005

JUDGMENT OF : Simpson J

DECISION : summons dismissed

CATCHWORDS : cross-vesting application - proceedings commenced in the Dust Diseases Tribunal of NSW - transfer to Supreme Court of SA - interests of justice - special procedures to facilitate hearing

Dust Disease Tribunal Act 1989, s11A, s25(3), s25A, s25B(1), s32 LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987, s5(2)(b)(iii), s8(1)

BHP Billiton Ltd v Schultz [2004] HCA 61; 211 ALR 523 William John Charles Ewins v BHP Billiton Ltd [2005] VSC 4; unreported, 12 January 2005 CASES CITED : James Hardie and Co Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503

BHP Billiton Ltd - Plaintiff PARTIES : Lawrence Utting - 1st Defendant Brambles Australia Ltd - 2nd Defendant

FILE NUMBER(S) : SC 10814/05

TGR Parker - Plaintiff COUNSEL : MJ Joseph SC - 1st Defendant DR Campbell SC - 2nd Defendant

Piper Alderman - Plaintiff SOLICITORS : Slater & Gordon - 1st Defendant AO Ellison & Co - 2nd Defendant

LOWER COURT JURISDICTION : Dust Diseases Tribunal NSW

LOWER COURT FILE NUMBER(S) : No 47 of 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Friday 1 April 2005

10814/05 BHP Billiton Ltd v Lawrence Utting & Anor

JUDGMENT 1 HER HONOUR: By summons filed on 8 March 2005 the plaintiff, BHP Billiton Limited ("BHP"), claims orders pursuant to s8(1) and s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 ("the Cross-vesting Act") that proceedings commenced by the first defendant (Lawrence Utting) in the Dust Diseases Tribunal of NSW ("the DDT") be removed into this Court, and then transferred to the Supreme Court of South Australia. BHP's claims are supported by the second defendant, Brambles Australia Limited ("Brambles"). 2 The proceedings the subject of the summons were commenced by statement of claim filed in the DDT on 21 February 2005. Mr Utting alleges that, between September and October 1958 and 1965 and 1966 he was employed by BHP in a foundry at Whyalla in South Australia. Between 1959 and 1962, 1965 and 1968, and 1970 and 1972, he was employed by Brambles at various sites also in Whyalla. He alleges that, in the course of each period of employment, he was negligently exposed to asbestos dust, fibre and particles. As a consequence of the exposure he now suffers from mesothelioma. His life expectancy is much reduced. (Evidence was given that, as of the middle of March, his life expectancy was in the order of four to six months. That circumstance demands expedition in the determination of BHP's summons.) 3 Removal from the DDT to this Court under s8 of the Cross-vesting Act is a mechanism to enable consideration to be given to the real point of the application, which is to transfer Mr Utting's proceedings to the Supreme Court of South Australia. If it is inappropriate to make an order for transfer to that Court, it would be inappropriate to make an order for removal from the DDT. 4 Pursuant to s5(2)(b)(iii) of the Cross-vesting Act, whether transfer is to be ordered depends upon whether it is in the interests of justice to do so. The Cross-vesting Act gives no additional guidance on how that question is to be determined. However, the High Court has, in a very similar case, given some such guidance: BHP Billiton Ltd v Schultz [2004] HCA 61; 211 ALR 523. Extensive consideration has been given to the question in another very similar case by Gillard J in the Supreme Court of Victoria: William John Charles Ewins v BHP Billiton Ltd [2005] VSC 4; unreported, 12 January 2005. In Schultz, the High Court excluded the plaintiff's choice of forums as a relevant factor. Four members of the Court (Gleeson CJ, McHugh and Heydon JJ in a joint judgment, and Kirby J in a separate judgment) referred to "the natural forum", this being the forum to which the claim has its strongest or most obvious connection. This concept also underlay the judgments of the other members of the Court. In determining "the natural forum", the place where the tort is alleged to have been committed is a significant factor, as is the location of the parties and witnesses. Also of significance to Gummow J, with whom Hayne J agreed, and to Callinan J, is the substantive law by which the claim is to be determined. By reason of the earlier decision of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503, that is the law of the place where the tort occurred. 5 Notwithstanding the primacy of the natural forum, that is not the only consideration in determining where the interests of justice lie. The natural forum may, in an appropriate case, be displaced by other factors. 6 In Ewins Gillard J listed six factors as relevant in an application under s5(2)(b)(iii). These are: (i) the place where the tort occurred; (ii) the place of residence of the parties, or, in the case of a corporation, its place of business; (iii) convenience to the parties and witnesses (although the weight his Honour attributed to this factor was limited); (iv) the law governing the proceedings; (v) the experience of a particular court and its ability to provide an efficient and speedy trial, with particular consideration to any special procedural or evidentiary rules to facilitate the hearing of cases; (vi) the condition of the parties, for example, reduced life expectancy of a plaintiff. 7 I think it is appropriate to here observe that the litigation commenced by Mr Utting is, as the evidence in this application demonstrates, litigation of a particular species with which courts (at least in this state) have, regrettably, become all too familiar. There must have been thousands of cases, certainly in courts in NSW and the DDT, as well as elsewhere, in which, many years after exposure to asbestos, plaintiffs have suffered serious and often terminal illnesses as a consequence. So prevalent has such litigation become in NSW that, as long ago as 1989, a specialist tribunal (the DDT) was established by the Dust Disease Tribunal Act 1989 ("the DDT Act") in order to deal with those claims expeditiously and efficiently. Not only was the DDT established for that purpose, over the years specific provisions have been enacted to reduce the time necessary for the hearing of claims, and to utilise accumulated preparation, knowledge and experience, together with rulings of the court, in order to avoid the duplication that otherwise would have occurred. The consequence has been considerable streamlining and efficiency in the delivery of justice, as well as cost and timesaving to all participants (including the system of justice itself). 8 The DDT Act contains a number of specific provisions which are relevant in this present application. They include: