Bhp Billiton Ltd v Schultz

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Heydon JJ,Gummow J,Kirby J,Hayne J,Callinan J
• Judgment Date: 07 December 2004
• Neutral Citation: 2004-1207 HCA A,[2004] HCA 61
• Court: High Court
• Docket Number: S108/2003
• Date: 07 December 2004

[2004] HCA 61

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

S108/2003

Bhp Billiton Limited

Appellant

and

TREVOR JOHN SCHULTZ & ORS

RESPONDENTS

Representation:

B W Walker SC with T G R Parker and K M Richardson for the appellant (instructed by Piper Alderman Lawyers)

D F Jackson QC with J L Sharpe and A S Bell for the first respondent (instructed by Turner Freeman Lawyers)

No appearance for the second to fifth respondents

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth, with M A Perry intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

W C R Bale QC, Solicitor-General of the State of Tasmania, with C E Prideaux intervening on behalf of the Attorney-General of the State of Tasmania (instructed by the Solicitor-General of Tasmania)

P A Keane QC, Solicitor-General of the State of Queensland with G R Cooper, intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law Division, Department of Justice)

R J Meadows QC, Solicitor-General for the State of Western Australia with K H Glancy intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor's Office (Western Australia))

M G Sexton SC, Solicitor-General for the State of New South Wales, with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)

C J Kourakis QC, Solicitor-General for the State of South Australia, with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office (South Australia))

Service and Execution of Process Act 1992 (Cth), ss 15, 20.

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5, 8, 9, 13.

Dust Diseases Tribunal Act 1989 (NSW), ss 10, 11, 11A, 13.

Jurisdiction of Courts (Cross-vesting) Act 1987 (SA), s 11.

Supreme Court Act 1935 (SA), s 30B.

BHP Billiton Limited v Schultz

Courts and judges — Courts — Concurrent jurisdiction of different courts — Cross-vesting legislation — Plaintiff alleges that his asbestos-related disease resulted from exposure to asbestos while working in South Australia — South Australia identified as the place of the alleged wrong — Plaintiff commenced proceedings in Dust Diseases Tribunal of New South Wales — Plaintiff a resident of South Australia — Whether Supreme Court of South Australia a ‘more appropriate’ forum — Whether proceeding to be transferred ‘in the interests of justice’ — Relevance of circumstance that jurisdiction of the Dust Diseases Tribunal was regularly invoked — Relevance of plaintiff's choice of forum — Relevance of circumstance that law of other State less favourable to plaintiff than the law of the forum — Relevance of circumstance that the forum has particular experience and facility in dealing with the specific type of claim — Relationship between cross-vesting applications and forum non conveniens.

Private international law — Choice of law — Lex loci delicti — New South Wales statute empowers Dust Diseases Tribunal to award further damages at a future date if the injured person develops dust-related condition — South Australian statute provides for a once and for all assessment of damages — Whether New South Wales law procedural or substantive in character.

Constitutional law (Cth) — State Parliaments — Powers — Whether State Parliaments competent to legislate in a manner which curtails or interferes with the exercise of the powers of another State — Whether State Parliaments competent to legislate for the exercise of adjudicative functions by their courts outside their geographical territory.

Constitutional law (Cth) — Full faith and credit — Choice of law — Lex loci delicti — Whether requirement that full faith and credit be given to the laws, the public Acts and records, and the judicial proceedings of every State, places it beyond competence of one State to require its courts or tribunals to determine the action by any system of substantive law other than the lex loci delicti.

Words and phrases: ‘more appropriate forum’, ‘interests of justice’.

Constitution, ss 73, 74, 75(v), 107, 118.

ORDER

1. Appeal allowed.

2. Set aside Order 1 of the orders of the Supreme Court of New South Wales entered on 30 October 2002, and in its place order that:

(a) Proceeding No 308 of 2002 in the Dust Diseases Tribunal of New South Wales be removed into the Common Law Division of the Supreme Court of New South Wales; and

(b) The proceeding so removed thereupon be transferred to the Supreme Court of South Australia.

3. The appellant pay the costs of the first respondent in this Court.

1 Gleeson CJ, McHugh AND Heydon JJ. This is an appeal from a judge of the Supreme Court of New South Wales, who dismissed the appellant's application to have an action pending in the Dust Diseases Tribunal of New South Wales (‘the Tribunal’) removed from the Tribunal to the Supreme Court of New South Wales, and then transferred to the Supreme Court of South Australia. The power of transfer is conferred by s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (‘the Cross-vesting Act’).

The proceedings in the Tribunal

2 The first respondent suffers from asbestosis and asbestos-related pleural disease. Between 1957 and 1964, and between 1968 and 1977, he worked for the appellant at Whyalla in South Australia. He claims that his condition is the result of exposure to asbestos over those periods. He commenced proceedings in the Tribunal against the appellant, alleging negligence, breach of contract and breach of statutory duty, and against four other corporations, also respondents to this appeal, who were allegedly negligent in the manufacture and supply of the materials that ended up at Whyalla.

3 At the time of the commencement of the proceedings, the first respondent was a resident of South Australia. The appellant is incorporated in Victoria, and carries on business both in South Australia and in New South Wales. The second respondent is incorporated in the United Kingdom, and is registered as a foreign corporation in New South Wales. The third and fourth respondents are incorporated in the Australian Capital Territory. The fifth respondent is incorporated in New South Wales. According to the first respondent, products containing the asbestos were manufactured, sold and supplied to the appellant and the second respondent in New South Wales by the fifth respondent. According to the appellant, the products were supplied to the appellant in South Australia. There are cross-claims between the appellant and the respondents other than the first respondent.

4 The appellant was the moving party in the application before Sully J. The respondents other than the first respondent took no active role before Sully J or before this Court. In argument in this Court, the focus of attention was the first respondent's case against the appellant. That, however, does not mean that the claims against the other respondents, and the cross-claims, are to be ignored. Sully J identified South Australia as the place where the first respondent's causes of action against the appellant arose. In this Court, the first respondent did not challenge the view that the law of South Australia would be the substantive law that would govern his claim against the appellant, but asserted that the law of New South Wales could govern some of the claims against the other respondents and the cross-claims.

5 Subject to proof of exposure and diagnosis, liability will not be in issue between the first respondent on the one hand and the appellant and the other respondents on the other hand. Subject to the qualification mentioned, the only issues affecting the first respondent will relate to damages and a claim that a limitation period has expired. The lay witnesses, and most (but not all) of the medical witnesses, reside in South Australia.

6 Sully J pointed out that s 11A of the Dust Diseases Tribunal Act 1989 (NSW) (‘the Tribunal Act’), a provision unique to the Tribunal, empowered the Tribunal to make an award of damages in stages. That section provides:

‘(2) The Tribunal may …

• (a) award damages assessed on the assumption that the injured person will not develop another dust-related condition, and

• (b) award further damages at a future date if the injured person does develop another dust-related condition.’

The first respondent sought from the Tribunal an order preserving his right to make a future and additional claim for damages should he develop any of the conditions of asbestos-induced lung cancer, asbestos-induced carcinoma of any other organ, pleural mesothelioma, or peritoneal mesothelioma.

The Cross-vesting Act

7 The purpose of the proposed removal of the proceedings from the Tribunal to the Supreme Court of New South Wales under s 8 of the Cross-vesting Act was so that it could then be transferred to the Supreme Court of South Australia under s 5 of the same Act. The criterion for transfer established by s 5 is that it is in the interests of justice that the proceedings be determined in the Supreme Court of South Australia.

8 From the outset, it has been recognised by courts applying the Cross-vesting Act that, although an application for transfer under s 5 will often involve evidence and debate about matters of the same kind as arise when a court is asked to grant a stay of proceedings on the ground of forum non conveniens, there are differences between the two kinds of application. Because of one controversial aspect of the reasoning of Sully J, it is useful to refer to some matters of history in order to explain those differences.

9 The current English common law on the subject of forum non conveniens was...