Supreme Court New South Wales Medium Neutral Citation: DPSPL Pty Limited v Comcare t/as HWL Ebsworth Lawyers [2011] NSWSC 814 Hearing dates: 22 July 2011 Decision date: 22 July 2011 Jurisdiction: Civil Before: Adams J Decision: 1. Application refused. 2. Summons dismissed with costs. Catchwords: CROSS-VESTING APPLICATION - proceedings commenced in Dust Diseases Tribunal - worker suffering from asbestosis - injury suffered in Queensland - witness in Queensland - Queensland law applicable -defendants and cross-defendants participated in contribution assessments procedure - Contribution Assessment Determination as between defendant and cross-defendants - worker and defendant in Tribunal Proceedings reached settlement - defendant relied on effect of Contribution Assessment Determination - application by cross-defendants to transfer proceedings to Supreme Court of Queensland made without prior notice - natural forum Queensland - Queensland natural forum but interests of justice prevent cross-vesting - application to transfer refused. Legislation Cited: Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2007 Jurisdiction of Courts (Cross-Vesting) Act 1987 Cases Cited: Amaca Pty Ltd v Harris [2005] NSWSC 622 BHP Billiton Ltd v Schultz and Ors [2004] HCA 61; (2004) 221 CLR 400 BHP Billiton Ltd v Stephens [2011] NSWSC 675 Bonser v Melnacis & Anor [2000] QCA 13 Cardross Pty Ltd v Comcare (unreported NSWSC 25 July 2008) QBE Insurance (Australia) Limited v Wallaby Grip Limited [2007] NSWCA 43 Category: Principal judgment Parties: DPSPL Pty Limited (Plaintiff) Comcare t/as HWL Ebsworth Lawyers (Defendant) Representation: Counsel A. Giurtalis (Plaintiffs) M. J. O'Meara (Defendant) Solicitors Bruce Thomas Lawyers (Plaintiffs) HWL Ebsworth Lawyers (Defendant) File Number(s): 2011/176876 Judgment Introduction 1The plaintiffs are cross defendants to a cross-claim brought by the defendant which is a defendant in proceedings in the Dust Diseases Tribunal (the Tribunal) brought by a Mr Thompson. Those proceedings concern personal injury suffered by Mr Thompson as a result of the inhalation of asbestos fibres whilst working on the Brisbane waterfront between 1964 and the mid 1970s. The defendant is the successor of the liabilities of what might be regarded in practical terms as the cross defendants' insurers, namely, the Stevedoring Industry Finance Committee and, prior to that, the Stevedoring Industry Authority. The defendant settled Mr Thompson's claim on 18 April 2011 within the framework of the Dust Diseases Tribunal Act 1989 following informal negotiations. 2On 23 November 2010 the defendant cross-claimed against the plaintiffs in the Tribunal, seeking a contribution from them in respect of Mr Thompson's damages. By reg 48 of the Dust Diseases Tribunal Regulation 2007 the cross-defendants "must agree among themselves as to the contribution that each is liable to make to [the plaintiff's] damages" within a specified timetable. If agreement is not reached, reg 49(i) requires the Registrar "to refer the matter to a Contributions Assessor for determination ..." The Assessor is to determine the relative contributions "on the assumption that the defendants are liable [subject to presently irrelevant qualifications] and solely on the basis of ... the plaintiff's statement of particulars and the [cross] defendant's replies on the claim ... and the standard presumptions as to apportionment determined by the Minister ...": reg 49(4). Cross-defendants are to be notified of the referral and may reply to the statement of particulars. 3The determination by the Assessor is final, subject to the jurisdiction of the Tribunal to consider and decide any dispute between the parties as to contribution: reg 49(8). However, reg 52(3) imposes significant costs penalties if a disputing party does not materially improve its position and, where a party establishes that it is not liable, reg 53(1) enables that party to recover indemnity costs against the other parties who did not agree that it was not liable if the former party wins on the ground stated in its initial reply to the Assessor. The questions of liability and apportionment are determined according to the relevant law, here that of Queensland. 4In their replies, the plaintiffs stated that the Mr Thompson's claim was governed by Queensland law and, in substance, denied any liability. 5Prior to settlement, on 17 February 2011, the Assessor made a contributions assessment determination against or in respect of the obligations of the cross-defendants. I t is not submitted here that the assessor took into account some immaterial matter or did not give the cross-defendants' reply a just consideration. 6The defendant's solicitor deposed - and it was not disputed - that he negotiated settlement with Mr Thompson "on the understanding that the contributions assessment would not be challenged". Mediation is a necessary part of the Tribunal's procedures and it is notorious that attempts to settle claims are essential. Having regard to the submission of replies to the Assessor and silence on the part of the plaintiffs on the issue of cross-vesting, the defendant was entitled to infer that the matter of contribution (and liability), which was clearly signalled in the replies, would remain in the Tribunal for final determination. The Tribunal's procedures, including those to which I have referred in respect of contributions, facilitate the relatively quick and cheap disposition of disputes. 7The plaintiffs did not inform the defendant that they intended to seek cross-vesting to Queensland, although they must have known that it was engaged in negotiations with Mr Thompson to settle his claim. Following the entry of the settlement orders on 18 April 2011, the defendants by summons filed in the Court on 30 May 2011 sought orders that the proceedings in the Tribunal be removed into this Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 and sent to the Supreme Court of Queensland. 8The test applying to such an application is whether it is in the "interests of justice" to make the orders: s5(1)(b)(ii) of the Cross-vesting Act. It is in this respect the course of the litigation, to the point of the application, the nature and extent of the subsequent procedural concomitants, the character of the litigation and its scope in respect of likely witnesses, where those witnesses are located, and the costs that might be incurred by each party in relation to the litigation which are material factors. They fall to be considered, however, in the context described by the High Court of Australia in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400. Strictly speaking, Schultz determined that it was wrong to take into account the notion that the plaintiff's choice of a forum was not to be lightly overridden and that procedural advantages available to the plaintiff were not available or so readily available in the court to which the cross-vesting was sought. In respect of the general principles that apply in such cases, Gleeson CJ, McHugh and Heydon JJ said (uncontroversially) - "[14] 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 to ensure 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 hypothesis 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. ... [19] In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications." Dealing with the way in which relevant considerations might be balanced, their Honours said - "[18] There is nothing unusual, either in the State or the federal judicature, about actions between residents of different Australian law areas. Federal diversity jurisdiction is an obvious example. Actions in New South Wales courts are commonly brought by residents of other States, especially when the residence or principal place of business of the defendant is New South Wales. Reference is sometimes made to one forum or another being the "natural forum". Such a description is usually based upon a consideration of "connecting factors" ...as including matters of convenience and expense, such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction. Lord Templeman described such factors as "legion", and said that it was difficult to find clear guidance as to how they are to be weighed in a particular case: [ Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 465]. Thus, New South Wales might well be the "natural forum" for an action for damages brought by a passenger in a motor vehicle against the driver if they were both residents of New South Wales, even though the injury resulted from a collision that occurred on the other side of the Queensland or Victorian border. [19] In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications." (See also Amaca Pty Ltd v Harris [2005] NSWSC 622 at [30] and BHP Billiton Ltd v Stephens [2011] NSWSC 675 at [24].) 9Of considerable significance, therefore, is the place where the tort was committed, the law applicable in that place, the location of the witnesses, and allied considerations as to the location of the parties, and the comparative costs and expenses to which the parties may be put. In most respects, Queensland is the "natural forum" in the present case: the tort was committed in Queensland; Mr Thompson lives in Queensland, as do the medical witnesses; and the applicable law is that of Queensland, in which respect (as it happens) there is significant relevant authority from the Queensland Court of Appeal ( Bonser v Melnacis & Anor [2000] QCA 13). There is no evidence as to comparative costs as between conducting the litigation in the Tribunal on the one hand and the District Court of Queensland on the other. Since the only witnesses envisaged are the medical practitioners and, possibly Mr Thompson, it can be readily accepted that their evidence, if it is to be adduced, can be given by video link, so this does not strike me as an important consideration. Moreover, the affidavit of the plaintiffs' solicitor does not identify any particular medical issue or suggest that the fundamental diagnosis of asbestosis is in question. I regard the passage claiming that these witnesses would be called as being no more than describing a theoretically potential course of litigation. The plaintiffs are defunct companies, and the location of their insurers is not significant. It is clear, also that the Tribunal is in as good a position as any other Court to apply Bonser , although there is something in the argument that it would be somewhat strange - if the matter went on appeal on a contention that Bonser was misunderstood or misapplied - that the question would be determined by the Court of Appeal of this State. 10Taking all these matters into account, I would conclude that, ex facie , Queensland is the "natural forum" for this litigation and would, respectfully, follow the approach of McCallum J in Cardross Pty Ltd v Comcare (unreported NSWSC 25 July 2008) and make the orders sought. However, it seems to me that the course of the proceedings to date, particularly the conduct of the plaintiffs in standing by silently whilst the defendant negotiated settlement with Mr Thompson, is an important and decisive countervailing consideration. 11In QBE Insurance (Australia) Limited v Wallaby Grip Limited [2007] NSWCA 43, the Court considered the significance of the stance taken by a defendant from which a contribution is being sought where it seeks to change that stance after another party has settled the principal claim on the basis that the procedures of the Tribunal will apply to the contribution issues. A claim was made in the Tribunal by a worker whose health suddenly deteriorated, requiring the President to remove the claim from the claims resolution process and fix an early hearing date. His Honour, with the consent of one of the cross-defendants and the acquiescence, if not the consent, of the others (counsel being unable to obtain instructions) directed, however, that the contribution apportionment procedures continue to apply. On the second day of hearing the defendants settled the plaintiff's claim. The non-consenting cross-defendants (called the opponents) then sought and obtained an order, opposed by the defendants, that the apportionment procedures should cease to apply to their cross-claims. In discussing the significance of the contributions assessment procedure, Handley AJA (with whom Hodgson and Campbell JJA agreed) noted (at [44]) that "[t]he effect of a determination in promoting settlement before a full trial could not be discounted". His Honour pointed out that, as well as facilitating early resolution of the plaintiff's claim, the procedures had "a second object, which was to maximise the sources available within a short time for payment, directly or indirectly, of the plaintiff's damages ... by including in those sources contributions from defendants who had not settled with the plaintiff and from cross-defendants who had not agreed to contribute". Handley AJA summarised the position in this way - "[52] Thus the availability of the summary procedure facilitated the settlement with the plaintiff although it left each defendant liable to immediate enforcement of the whole judgment. The defendants may have been reluctant to settle and run the risk that one of them would have to satisfy the judgment and wait to recover the contributions. [53] ... [The defendants' solicitor's] evidence established that both defendants relied on the President's order ... [continuing the application of the contributions assessment procedure] in their dealings with the plaintiff and each other. This was a most material consideration in the exercise of the President's discretion. Courts expect litigants to obey their orders and rely on them and they should be scrupulous in protecting the reasonable expectations of litigants who do so. [54] The opponents said and did nothing to challenge the President's order ... until after orders had been made giving effect to the settlement ... [55] The opponents' conduct in standing by in silence ... when the settlement was announced, until it was perfected, was a powerful consideration against making the order." 12In this case, it could be seriously doubted by anyone with practical experience of this kind of litigation, that the expectation of the defendant as to the disposition of the foreshadowed dispute with the plaintiffs, engendered by the plaintiffs initial participation in the Tribunals' procedures, would have been an important consideration in the approach of the defendant to the settlement negotiations. The change of ground now sought is a detriment which is incapable of being corrected. To significantly change the route by which determination of the outstanding issues is to be arrived at this stage would be positively unjust to the defendant. Conclusion 13The interests of justice require that the plaintiffs' application should be refused and the summons dismissed with costs. ********** 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. Decision last updated: 03 August 2011