Julia Farr Services Inc v Hayes [2003] NSWCA 37 (28 April 2003)

Last Updated: 19 May 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Julia Farr Services Inc v Hayes [2003] NSWCA 37

FILE NUMBER(S):

40011/03

HEARING DATE(S): 20 February 2003

JUDGMENT DATE: 28/04/2003

PARTIES:

Julia Farr Services Inc - Appellant

Ethel Barbara Hayes - Respondent

JUDGMENT OF: Spigelman CJ Giles JA Cripps AJA

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S): DDT 329/02

LOWER COURT JUDICIAL OFFICER: Maguire J

COUNSEL:

G Little SC & D Toomey - Appellant

M Joseph SC & R O'Keefe - Respondent

M Sexton SC & M Leeming - Attorney General of NSW

SOLICITORS:

Church & Grace - Appellant

Alex Stuart & Associates - Respondent

Crown Solicitors Office - Attorney General of NSW

CATCHWORDS:

Proceedings in Dust Diseases Tribunal - appeal from Tribunal only in point of law. South Australian parties, tort and venue - appeal if action in South Australian court not so fettered - whether in those circumstances Tribunal had no jurisdiction - or alternatively whether is unfettered right of appeal from Tribunal - distinction between jurisdiction and choice of law - no conflicting exercise of appellate jurisdiction - s118 of Constitution had no relevant application -- in any event appellate rights procedural and South Australian appellate rights did not arise - answers no. Whether New South Wales legislature lacked competence to invest the Tribunal with extra-territorial jurisdiction defined by the limited right of appeal - no offence to federal structure - answer no. Adjournment if proceedings involve a matter arising under the Constitution - whether proceedings in Tribunal did so - whether error in declining to adjourn proceedings - analysis of issue raised - answers no. Application for stay on forum non conveniens grounds - based on inherent jurisdiction - stay declined - on appeal error asserted in exercise of jurisdiction under Service and Execution of Process Act - query whether open so to assert - whether stay should have been ordered - on either basis no error. Forseeability of risk from exposure to asbestos - whether question of exposure to quantities below then accepted exposure standard or question of any low level of exposure - on existing authority, the latter - no error in Tribunal's approach. Findings of breach of duty of care - various findings challenged - not appeal in point of law.

LEGISLATION CITED:

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40011/03

DDT 329/02

SPIGELMAN CJ

GILES JA

CRIPPS AJA

Monday 28 April 2003

JULIA FARR SERVICES INCORPORATED v HAYES

Judgment

1 SPIGELMAN CJ: I agree with the reasons of Giles JA and with the orders his Honour proposes.

2 As Giles JA indicates, decisions of this Court establish the proposition that breach of duty can be made out on the basis that there was no known safe dose of asbestos. Those authorities are, however, expressly based on the proposition established by Wyong Shire Council v Shirt [1980] HCA 12; (1981) 146 CLR 40 at 47-48 to the effect that a risk of injury is reasonably foreseeable so long as it is not far-fetched or fanciful. (See e.g. Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 esp at 328-329; E M Baldwin & Son Pty Ltd v Plane [1999] NSWCA 130; (1998) 17 NSWCCR 434 esp at [110]; cf Seltsam Ltd v Minahan (1996) 13 NSWCCR 410 esp at 425.)

3 Some doubt now attaches to Wyong Council v Shirt. (See Tame v New South Wales [2002] HCA 35; (2002) 76 ALJR 1348 esp at [96]-[108] per McHugh J and [331] per Callinan J.) However this Court is bound by the judgment and must apply it.

4 GILES JA: This is an appeal from proceedings in the Dust Diseases Tribunal of New South Wales ("the Tribunal") in which judgment was given on 20 December 2002. The plaintiff in the Tribunal and initial respondent in the appeal died on 16 February 2003. An administrator ad litem was appointed to represent her estate, and was substituted as party to the appeal. Albeit inaccurately, I will continue to refer to the plaintiff as the respondent.

Introduction

5 For many years the appellant conducted a hospital in Adelaide. From 10 May 1971 to 30 May 1974, when the appellant's name was The Home for the Incurable Incorporated, the respondent was employed by it at the hospital. She worked as a nursing attendant in the West Block at the hospital.

6 In January 2001 the respondent began to have chest pains. In June 2002 came a diagnosis of mesothelioma. That the respondent suffered from mesothelioma has not been in issue.

7 On 27 August 2002 the respondent commenced proceedings in the Tribunal against the appellant and B I (Contracting) Pty Ltd ("BI"). She alleged that the West Block had been insulated with asbestos insulation material supplied to and installed for the appellant by BI, then known as Bradford Insulation (Contracting) Pty Ltd; that she had been exposed during her employment to asbestos dust and fibre; and that inhalation of the asbestos dust and fibre caused her mesothelioma. She claimed damages for negligence on the part of both defendants and for breach of statutory duty under South Australian legislation on the part of the appellant. (The pleading also claimed damages for breach of contract by BI; perhaps breach by the appellant of the contract of employment was intended. The question of breach of contract seems to have been ignored in the Tribunal and was ignored in the appeal.)

8 Any tort or breach of statutory duty had been committed in South Australia. The appellant was a South Australian company, and BI was a New South Wales company. Both defendants filed appearances in the proceedings, and on 18 September 2002 and 3 October 2002 respectively the appellant and BI filed defences in which they effectively denied or did not admit the respondent's substantive allegations.

9 On 21 October 2002 the proceedings were fixed for hearing on 16 December 2002. The hearing was to take place before Maguire J in Adelaide, where the respondent lived, she being in poor health.

10 On 12 December 2002 the respondent discontinued the proceedings as against BI.

11 On 13 December 2002, a Friday, the appellant applied in this Court for prerogative relief in the nature of prohibition directed to the Tribunal on the ground that, following the discontinuance as against BI, the Tribunal had no jurisdiction over the appellant or alternatively should not exercise its jurisdiction on forum non conveniens grounds. The application was accompanied by an application for expedition. The application for expedition came before me. I granted expedition on the question of jurisdiction, but declined to grant expedition on the question of forum non conveniens because that was in the first instance a matter for the Tribunal.

12 The application was heard in this Court on the question of jurisdiction later on 13 December 2002. Relief was refused. The Court said, following Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 at 417, that it was not necessary that the cause of action have a nexus with New South Wales, and that the appellant had been served outside New South Wales in accordance with New South Wales law and had entered an unconditional appearance: [2002] NSWCA 407 at [2].

13 Shortly after the commencement of the hearing in Adelaide on 16 December 2002, the following Monday, the appellant applied in the Tribunal for a stay of the proceedings on forum non conveniens grounds. Maguire J declined to grant a stay.

14 Later on 16 December 2002 the appellant applied in the Tribunal for what was described as a stay of the proceedings, on the ground that the proceedings involved a matter arising under the Constitution or involving its interpretation so that notice to the Attorneys General was required and a reasonable time for their intervention in accordance with s 78B of the Judiciary Act 1903 (C'th). Maguire J declined to adjourn the proceedings.

15 The hearing took place over the period 16 to 20 December 2002. Maguire J gave judgment on 20 December 2002. He found that the appellant had been negligent and in breach of its statutory duty, and awarded damages of $546,936.52.

16 The grounds of appeal were classified under the headings "The Constitutional Issue" (grounds 1-4), "Forum Non Conveniens" (ground 5), "Liability/Foreseeability" (grounds 6-12), "Statutory Duty - Health Act 1935 (SA)" (grounds 13-14) and "No Evidence for Factual Findings; alternatively, Factual Findings Erroneous" (ground 15). In the grounds the judgment on the forum non conveniens application was described as J1, the judgment on the s 78B application was described as J2, and the judgment of 20 December 2002 was described as J3.

17 By s 32 of the Dust Diseases Tribunal Act 1989 (NSW) ("the Act") appeal from the Tribunal to this Court relevantly lies only in point of law. That an appeal is confined in that way underpinned the appellant's submissions as to the constitutional issue. However, the appellant also (and perhaps inconsistently) submitted that its appeal was not so confined. The submissions as to the extent of the appeal were bound up with the submissions as to the constitutional issue.

The Constitutional Issue

18 Grounds 1-4 were -

"1. His Honour Maguire J, erred in declining to stay the proceedings, to enable the issuing of notices pursuant to s 78B of the Judiciary Act (Cth) and the passage of reasonable time thereafter, before determining the issue of whether there existed a conflict between the substantive law of New South Wales and South Australia as regards the ambit of the appellant's rights in these proceedings (J2[1]-[4]).

2. The proceedings below were commenced in the Dust Diseases Tribunal of New South Wales against two defendants, being the now appellant and BI (Contracting) Pty Ltd (the second defendant). The proceedings were listed for hearing on 16 December 2002. On 12 December 2002, two working days prior to the commencement of the hearing the plaintiff and now respondent discontinued the proceedings against the second defendant. That left as the only parties to the proceedings, parties who were resident and domiciled in South Australia. The appellant had never carried on business in New South Wales. The alleged tort had been entirely committed in South Australia. The substantive law applicable to the case was that of South Australia. In these circumstances His Honour erred in failing to hold that by reason of s 118 of the Constitution the Dust Diseases Tribunal of New South Wales did not have jurisdiction to hear and determine the proceedings (and thereby invoke the operation of s 32 of the Dust Diseases Tribunal Act 1989 limiting rights of appeal only to questions of law) ("the Constitutional question"). (J2 at [1]-[4]; J3 at [3]).

3. His Honour erred in determining the Constitutional question by reference to, and application of, the decision of Johns J in McDonough v Stevedoring Industry Finance Committee (2000) NSWCCR 385, which decision concerned the question of whether s 25B of the Dust Diseases Tribunal Act 1989, infringed Chapter III of the Constitution or was otherwise a valid exercise of the legislative power of the New South Wales Legislature, and which did not consider s 118 of the Constitution in light of the restricted rights of appeal prescribed by s 32 of the Dust Diseases Tribunal Act 1989.

4. This ground of appeal concerns the trial judge's exercise of federal jurisdiction. Pursuant to s 78B of the Judiciary Act 1993 (Cth) notices must be issued to the Attorneys-General with respect to this question."

19 The purported ground 4 is not a ground of appeal. Notices had been issued to the Attorneys General for the purposes of the appeal. The Attorney General for New South Wales appeared and made submissions on the constitutional issue, supporting the respondent. None of the other Attorneys General intervened or sought removal of the proceedings to the High Court.

20 Ground 1 does not itself proffer a constitutional issue; it is consequential on there being a constitutional issue. Grounds 2 and 3 go together, and proffer the constitutional issue. It is convenient first to consider grounds 2 and 3, the nub of which is that Maguire J erred in failing to hold that the Tribunal did not have jurisdiction to hear and determine the proceedings.

21 It is necessary to appreciate the evolution of the constitutional issue.

22 A "constitutional point" was asserted by the appellant in conjunction with its forum non conveniens application on 16 December 2002. Counsel for the appellant said -

"The constitutional point that we want to take, your Honour, is in the following terms, if I can summarise it. In circumstances where the proceedings are commenced in New South Wales that the parties to the action are domiciled in South Australia have not carried on business in New South Wales and where the alleged tort was entirely committed in South Australia, whether section 118 of the constitution requires the substantive law to be applied in the assessment of the defendant's liability to be that of New South Wales, that is invoking 25B and 25(3) of the Dust Diseases Tribunal Act rather than the substantive law of South Australia.

As your Honour would be aware under 78B of the Judiciary Act that does not mean that your Honour is necessarily embargoed from continuing with the matter per se but what it does mean that your Honour is duty bound, in our respectful submission, not to proceed to receive evidence that touches on that constitutional issue until such time as a reasonable opportunity has been provided for notices to be given to the Attorney General; that is your Honour could continue if my learned friend decides to take this course, to receive the plaintiff's evidence, your Honour could continue to receive evidence in the nature of documentary tenders that arise in these proceedings, but once we jump over the line in 25B and 25(3) material that is the point where the proceedings will have difficulty in continuing."

23 This did not challenge the Tribunal's jurisdiction over the appellant or its jurisdiction to hear and determine the proceedings. On the contrary, the appellant accepted that the Tribunal had jurisdiction but said that, for a constitutional reason, those aspects of the Tribunal's exercise of jurisdiction involving reception of evidence previously given and relitigation of general issues previously determined were unavailable. The constitutional point fell away when counsel for the respondent effectively disclaimed reliance on s 25B and s 25(3) of the Act; in fact they were not relied on.

24 The next form of the constitutional issue was at the time of the s 78B application. His Honour was not asked to hold that the Tribunal did not have jurisdiction to hear and determine the proceedings, and the notation of "J2 at [1]-[4]" part of ground 2 is misdirected. The submissions at that time put forward as the issue whether the parties had the limited right of appeal in s 32 of the Act or a full right of appeal said to be available under South Australian law. Counsel for the appellant said that the question the High Court should be asked was "whether the parties to this action have an unvetted [sic: unfettered] right of appeal from a judgment of this tribunal". He submitted that "the limited right of appeal is inconsistent with South Australian law and a question arises about that under section 118 [of the Constitution]".. After much discussion counsel said, "The defendant wants to know whether this trial is being conducted with a limited right of appeal in the Dust Diseases Tribunal Act or the rights that it would have in South Australia". What was sought was that there should be a stay of the proceedings by reason of that issue.

25 In the course of counsel's submissions he said at one point, "The matter unfortunately arising under the Constitution is the whole of the trial your Honour. The court can [sic: ?can not] hear the case because any appeal rights from it will be inconsistent with South Australian law". If this was intended to raise a challenge to the Tribunal's jurisdiction, it was inadequate. As will be seen from his Honour's reasons on the s 78B application, to which I will come when considering ground 1, no such challenge was perceived; nor did ground 1 treat the constitutional issue as challenging the Tribunal's jurisdiction to hear and determine the proceedings.

26 The third form of the constitutional issue was raised in the appellant's written submissions provided to Maguire J at the conclusion of the evidence on 20 December 2002. It was a rather different constitutional issue, and one which also took an extra step to jurisdiction. The evolution to a jurisdictional submission was very late.

27 The constitutional issue then raised was -

"In circumstances where the proceedings are commenced in New South Wales the parties to the action domicile in South Australia, have not carried on business in New South Wales and where the alleged tort was entirely committed in South Australia, whether s 118 of the Constitution requires the substantive law to be applied to the proceedings to be that of New South Wales (thereby invoking the operation of s 32 of the Dust Diseases Tribunal Act, 1989 (NSW) and limiting rights of appeal only to questions of law) rather than that of South Australia pursuant to which rights of appeal on all grounds exist, and if so, whether this Tribunal has jurisdiction to determine the action?" (emphasis added)

28 After submissions similar to those presented to this Court, the written submissions relevantly concluded -

"[15] In the circumstances, it is submitted, that this Tribunal should determine that by reason of the imposition of the fetter on the parties appellant rights by operation of s 32 of the Dust Diseases Tribunal Act, 1989 (NSW), and in circumstances where there is no nexus in terms of parties or action to New South Wales, this Tribunal lacks jurisdiction to determine the rights of the parties having regard to those constraints in its enabling legislation, which provisions in the circumstances of this case are contrary to s 118 of the Constitution."

29 Maguire J's reasons on this constitutional issue in his judgment of 20 December 2002 were brief. His Honour said -

"3. This point was taken in written submissions delivered to my Chambers after 11am today, the fifth day of the trial. The point could and should have been taken long ago. Reference was made to what was said to be a constitutional point within the first hour of the trial last Monday in Adelaide. I understood that Mr Miller said at the end of the discussion was [sic] no such point would be taken if the plaintiff did not introduce evidence pursuant to s 25(3) nor s 25B of the Dust Diseases Tribunal Act. The plaintiff has not. A rereading this afternoon of Monday's transcript suggests that there might be some ambiguity in what Mr Miller than said. I will not pause to discuss that; the point is now taken. It amounts to the fourth attempt to bring this trial undone. It must be determined, no matter the hurry involved. In the limited time available I have read the judgment of his Honour Judge Johns in McDonohue v Stevedoring Industry Finance Committee 2000 NSWCCR 385. It seems to me that his Honour's reasoning on the point before him in that case applies with equal force to the point taken here. The trial will proceed."

30 Under the heading of estoppel by record, the respondent submitted that in refusing the application on the question of jurisdiction on 13 December 2002 this Court had held that the Tribunal had jurisdiction over the appellant, and that the appellant (and the respondent and the Tribunal) were "bound" by that decision. It was common ground that the constitutional issue and the attendant argument going to jurisdiction had not been raised or put to this Court on the application. The respondent said that the decision was nonetheless binding on the appellant, citing Algama v Minister for Immigration and Cultural Affairs [2001] FCA 1884. The appellant said, without the benefit of authority, that the decision was "limited to the matters argued before the Court on [the] application".

31 Algama v Minister for Immigration and Cultural Affairs is concerned with the precedential value of decisions between other parties, not the effect of a decision between the instant parties. Neither the respondent nor the appellant otherwise addressed the availability or impact of res judicata estoppel. In the absence of proper submissions, the respondent's submission should not be decided. For reasons which will appear, it is not necessary to decide it.

32 The respondent also submitted that the appellant should not be permitted to argue the constitutional issue and challenge the Tribunal's jurisdiction on appeal, because "there had been ample prior opportunity to raise it and has [sic] failed to do so". The respondent cited Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 43 NSWLR 131 and Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631. It is sufficient to say that, however late, the issue was raised and the Tribunal's jurisdiction was challenged, and the challenge was determined in the Tribunal. It is not a case of a new point for the first time on appeal.

33 I go therefore to the appellant's submissions presented to this Court.

34 The Tribunal was established as a specialist tribunal for hearing and determining proceedings on claims for damages for dust related conditions, with the same power to make decisions as the Supreme Court of New South Wales would have had in relation to similar proceedings. Perhaps because it was established as a specialist tribunal, appeal to this Court is restricted to appeal in point of law. The respondent's claim against the appellant could have been made in proceedings in the Supreme Court of South Australia or the District Court of South Australia. Appeal from a single judge of the Supreme Court of South Australia to the Full Court is not restricted to appeal in point of law, although in some circumstances appeal is not available or lies only by leave (Supreme Court Act 1935 (SA), s 50). Appeal from a judge of the District Court lies to the Supreme Court, in the case of an interlocutory judgment to a single judge and otherwise to the Full Court, and with a limited exception again is not restricted to appeal in point of law (District Court Act 1991 (SA), s 43).

35 It was common ground that, the appellant being a South Australian company and any tort or breach of statutory duty having been committed in South Australia, at least after the discontinuance as against BI the substantive law to be applied in any proceedings was the law of South Australia (John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503).

36 Although they were not clearly distinguished, the appellant's submissions presented two arguments for the Tribunal lacking jurisdiction to hear and determine the proceedings. One was founded on s 118 of the Constitution. The other was founded on an implied constitutional limitation on the legislative competence of the New South Wales legislature.

37 The appellant's s 118 argument was as follows. Section 118 of the Constitution required that full faith and credit be given throughout the Commonwealth to "the laws, the public Acts and records, and the judicial proceedings of every State". Under the law of South Australia an appellant had a right of appeal on all grounds, that is, not confined to appeal in point of law. That was part of the substantive law, and had to be accorded full faith and credit. So far as there was conflict with s 32 of the Act, there was a "Constitutional impasse that can only be resolved by a finding that [the Tribunal] does not have jurisdiction in the circumstances of the present case".

38 The appellant submitted that what was involved was a question of choice of law, so that selection of the law of South Australia as the substantive law led to the dominance of South Australian appellate rights over the right of appeal in s 32 of the Act. The asserted dominance required categorising appellate rights as substantive rather than procedural, it being accepted that procedural matters were governed by the law of the forum (which the arguments took to be the law of the Tribunal's state, New South Wales, rather than the law of South Australia where Maguire J sat to take evidence). The step then to lack of jurisdiction turned on there being conflict between s 32 of the Act and the law of South Australia.

39 The appellant put forward as an alternative that, because of the conflict, the limitation of the appeal to this Court to appeal in point of law was invalid and a full right of appeal was available: I will come to that later.

40 In support of the argument, it was said that within Australia there should not be different outcomes in litigation according to where or in what court the litigation took place. Particular reliance was placed on the remarks of Kirby J in John Pfeiffer Pty Ltd v Rogerson at [129]-[130] -

"129. It may be reasonable to recognise the right of a litigant to choose different courts in the one nation by reason of their advantageous procedures, better facilities or greater expedition. However, it is not reasonable that such a choice, made unilaterally by the initiating party, should materially alter that party's substantive legal entitlements to the disadvantage of its opponents. If this could be done, the law would no longer provide a certain and predictable norm, neutrally applied as between the parties. Instead, it would afford a variable rule which particular parties could manipulate to their own advantage. Such a possibility would be obstructive to the integrity of a federal nation, the reasonable expectations of those living within it and the free mobility of people, goods and services within its borders upon the assumption that such movement would not give rise to a significant alteration of accrued legal rights.

130. In Australia, the consideration of the mobility of people, goods and services within a federation therefore encourages both the broadest possible access to the available courts within the unified Judicature of the nation and the adoption of a choice of law rule which helps to promote an identical outcome for the parties' substantive rights, wherever in that nation those rights fall to be determined by a court of law."

41 In my view, the appellant's argument fails properly to distinguish between jurisdiction and choice of law.

42 In John Pfeiffer Pty Ltd v Rogerson Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said at [25] -

"25. Questions of jurisdiction (in the sense of authority to decide) are better kept separate from questions of the applicable law. A court has jurisdiction in a civil action either because the plaintiff has served the originating process on the defendant while within its territorial jurisdiction or because applicable "long arm" provisions have been invoked. The assumption of jurisdiction raises no question as to the law to be applied in deciding the rights and duties of the parties. That last question might, in some cases, affect whether the court should decline to exercise its jurisdiction and stay the proceedings. But the authority of a court to decide a question of forum non conveniens and, also, to decide the substantive rights and duties of the parties comes from the fact of service of the process."

43 That passage was adopted by the same five justices in Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 187 ALR 1 at [10]. Their Honours also pointed out (at [7], with reference to Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 at [78]- [79]) that "jurisdiction" is used in a variety of senses, and may refer to the amenability of a defendant to the court's writ and the geographical reach of that writ, to the subject matter of the actions entertained by a particular court, or to the location of a particular law area or district.

44 The present case involves jurisdiction in the first of these senses. It was no longer in question that the Tribunal's "long arm" jurisdiction had been enlivened, and even if there were otherwise a difficulty the appellant's appearance had subjected it to the jurisdiction. The Tribunal's jurisdiction was in part defined by the extent of the right of appeal, since "a right of appeal from any Court is a limitation of that Court's jurisdiction" (The Commonwealth v The Limerick Steamship Co Ltd [1924] HCA 50; (1924) 35 CLR 69 at 92 per Isaacs and Rich JJ), and by the right of appeal this Court had a potential jurisdiction over the appellant. But no jurisdiction of a South Australian court, whether the Supreme Court or the District Court, had been enlivened.

45 Two things followed. First, the appellant and the respondent had a right of appeal from the Tribunal to this Court, although one limited to appeal in point of law. Secondly, neither the appellant nor the respondent had a right of appeal under South Australian law, because no proceedings were on foot from which an appeal might lie. Any jurisdiction exercisable on appeal would be that of this Court, and there was no question of a conflicting exercise of unfettered appellate jurisdiction in South Australia.

46 In these circumstances, s 118 had no work to do. There was no occasion to give full faith and credit to the laws of South Australia as to appellate jurisdiction, and no conflict to be resolved (assuming it could be resolved by the step to lack of jurisdiction) by denial of the Tribunal's jurisdiction. I expressly only assume the step: amongst other matters, why should South Australian law trump New South Wales law rather than vice versa? As was said in John Pfeiffer Pty Ltd v Rogerson at [63], s 118 does not in its terms "state any rule which dictates what choice is to be made if there is some relevant intersection between legislation enacted by different States". Its effect in this respect was left for later resolution (at [65]).

47 On this analysis, one does not get to categorisation of appellate rights as substantive or procedural. If that categorisation be approached, again s 118 does not avail the appellant.

48 Section 118 is not concerned with choice of law, and only applies once there has been ascertained the law to which full faith and credit is to be given (John Pfeiffer Pty Ltd v Rogerson at [139]; James Hardie & Co Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [81]). While according to choice of law rules as now reformulated the substantive law of South Australia was to be applied in the proceedings, that choice of law did not extend to procedural law. The distinction between substantive and procedural laws remains notwithstanding the well-known difficulty in applying it. If jurisdictional laws of the kind presently in question are of the latter kind, s 118 does not dictate what jurisdiction can be exercised, but only that once it has been properly invoked the laws providing for its exercise should be respected.

49 In John Pfeiffer Pty Ltd v Rogerson at [99] Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said -

"Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum. Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, "rules which are directed to governing or regulating the mode or conduct of court proceedings" are procedural and all other provisions or rules are to be classified as substantive."

50 The appellant relied on the reference to "existence, extent or enforceability of the rights and duties of the parties to an action" in the second of the principles, treating appellate rights as within those words. Regard to the first of the principles, however, shows that the appellant gains no comfort. The respondent can not insist on a full right of appeal because she might have brought proceedings in the Supreme Court of South Australia. She must take the Tribunal and this Court as she finds them. Although the appellant is an unwilling litigant in the Tribunal and in a sense in this Court, it also must take the Tribunal and this Court as it finds them, and it matters not that the respondent might have brought proceedings in the Supreme Court of South Australia. This is so even when, upon a constitutional issue arising, the Tribunal was exercising federal jurisdiction (Judiciary Act s 39; see for example Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 94, 114, 136), because the constitution and structure of a State court invested with federal jurisdiction is taken as it exists and no federal law altered the jurisdictions (Constitution s 77(iii); Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 27 at 37; Kable v Director of Public Prosecutions (NSW) at 67, 82, 110).

51 The extent of a court's jurisdiction is procedural in a fundamental way, not just as regulation of "the mode or conduct of court proceedings" but as the statement of the limits within which the court can act. In the distinction between substantive and procedural laws it seems to me that the jurisdictional laws of the kind presently in question should be regarded as procedural. Thus s 118 supports the respondent rather than the appellant.

52 The extent of appellate rights has the potential to affect outcomes, of course, but so does any regulation of the mode or conduct of court proceedings, and that is not enough to overcome the fundamentally procedural nature. The appellant cited no writings treating appellate rights as substantive law. On the contrary, rights of appeal are said to be governed by the law of the forum in Graveson, Conflict of Laws - Private International Law, 7th ed, 1974, p 615; Sykes and Pryles, Australian Private Law, 3rd ed, 1991, pp 356-7; and Cheshire and North, Private International Law, 13th ed, 1999, p 72. In the discussion of substance and procedure in ALRC 58 Choice of Law para 10.9 appeals are said to be "traditionally ... classified as procedural". In the Restatement of the Law, Second "Conflict of Laws", 1971, para 127 the same approach is taken.

53 While the label "procedural" is hallowed, it may be better to see appellate rights as governed by the law of the forum simply because they are a given for litigation in the forum. In the present case, to take up what I have earlier said, the only right of appeal from the Tribunal was that conferred by s 32, and there was no right of appeal to the Supreme Court of South Australia.

54 Kirby J's remarks concerning a party's choice of court materially disadvantaging the opponent can readily be appreciated. One means of alleviating that undesirable situation is, as his Honour said, the adoption of a choice of law rule which will promote an identical outcome for the parties' substantive rights. Other means are principles of forum non conveniens and the cross-vesting legislation, but these do not exclude regard to so-called "legitimate juridical advantages" in litigating in one court rather than another (see for example Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 571). Jurisdictional differences and differences in prescribed procedures are a fact of life, but judicial reworking of the jurisdictions of courts and abolition of the distinction between substantive and procedural issues can not be and have not been employed to overcome them.

55 For the appellant's other argument it relied on Mobil Australia Pty Ltd v State of Victoria [2002] HCA 27; (2002) 76 ALJR 926. As I have said, the argument was not clearly distinguished from the s 118 argument, and it was not fully articulated, but as I understand it came down to the contention that the New South Wales legislature lacked legislative competence to invest the Tribunal with extra-territorial jurisdiction defined by the limited right of appeal. The argument again turned on there being conflict between s 32 of the Act and the law of South Australia, it being submitted that in the federal system the Act had to "adapt to, and be consistent with, the legislative powers of the other States, as well as of the Commonwealth": Mobil Australia Pty Ltd v State of Victoria at [20] per Kirby J.

56 The question in Mobil Australia Pty Ltd v State of Victoria was whether Victorian legislation providing for the conduct of group proceedings was invalid, relevantly because of a limitation on the extraterritorial competence of the State legislature implied from the federal structure of the Constitution. A limitation of that nature was recognised (at [13]-[15], [49], [121], [177]), although it was described as "somewhat vague and ill-defined" (at [13]). But the legislation was upheld by Gleeson CJ and Gaudron, Gummow, Kirby and Hayne JJ, Callinan J dissenting.

57 Gleeson CJ said that there was nothing antithetical to the federal structure about legislation of one state that has legal consequences for persons or conduct in another state or territory (at [16]), and saw nothing in the extraterritorial reach of the group proceedings scheme incompatible with federalism (at [17]).

58 Gaudron, Gummow and Hayne JJ emphasised that jurisdiction based on the amenability of the defendant to the court's process plus choice of law rules were the basis for a court's extra-territorial adjudication, and implicitly saw that as consistent with the federal structure; their Honours said in particular (at [58]) -

"[58] It is also necessary to notice another consequence of the fact that a state court may take jurisdiction in a personal action when its originating process is served on the defendant within the bounds of its territorial jurisdiction. It inevitably follows from that fact that there can be cases in which similar, even identical, issues can be raised in the courts of two states between the same or related parties. It is inevitable, therefore, that there can be overlapping, even conflicting, procedures and judgments of the courts concerned. Those are difficulties that have hitherto been resolved by the application of principles concerning abuse of process or, more recently, by the application of cross-vesting legislation. They are not, however, difficulties that have so far been, or should now be, understood as stemming from some limitation on, or want of power in, the parliament of one or other of the states to regulate the procedures of its Supreme Court. Indeed the content, if not the existence, of the whole body of law that has developed about forum non conveniens, denies that the question is to be understood as one rooted in some territorial limitation on the powers of state parliaments which would require that either the plaintiff or the plaintiff's claim be connected with the state. If the question were one of legislative power, it would be entirely irrelevant and wrong to ask whether the defendant seeking a stay of proceedings had demonstrated that the forum chosen by the plaintiff was clearly inappropriate." (citations omitted)

59 Kirby J looked for demonstrated "operational inconsistency" or direct conflict with another State's laws, and considered that the legislation brought neither (at [130]-[145]).

60 Just as in that case there was no occasion to adapt the legislation to consistency with the legislative powers of the other States, so also in this case. In my opinion there is nothing offensive to the federal structure, requiring denial of the Tribunal's jurisdiction, in the existence of a restricted right of appeal from proceedings properly brought in the Tribunal compared to a wider right of appeal if the claim had been made in proceedings brought in some other court. Jurisdictional laws, including principles of forum non conveniens and the cross-vesting legislation, and choice of law determinations, accommodate to the federal structure. As Gaudron, Gummow and Hayne JJ made plain, denial of legislative competence is not called for.

61 In my opinion, therefore, the appellant's arguments on the constitutional issue should not be accepted. It is difficult to see how there could be any other result. Assume that there was a full right of appeal from the Tribunal to this Court but subject to a leave requirement not found in South Australia, or a full right of appeal from the Tribunal to this Court and a leave requirement in South Australia, or any other difference between the appellate regimes: the equivalent argument would mean no jurisdiction in the Tribunal. Assume a limited right of appeal from the District Court of South Australia and a full right of appeal within the Supreme Court of South Australia: the argument would collapse. Other illustrations could be given. On the test of practical application, the argument is unworkable.

62 Maguire J had little opportunity to consider the constitutional issue. His Honour adopted the reasoning of Johns J in McDonough v Stevedoring Industry Finance Committee (2000) 20 NSWCCR 385 in which (as ground 3 states) the question was whether s 25B of the Act is a valid exercise of the legislative power of the New South Wales legislature. His Honour may have had in mind Johns J's apparent rejection of the argument that s 25B was an unconstitutional "fetter on the capacity of parties to litigate a matter in a tribunal to which they were obliged to resort" (see McDonough v Stevedoring Industry Finance Committee at [41]). Whether or not his Honour's reasoning is suspect, however, does not matter. The constitutional issue, which is within an appeal in point of law, falls adversely to the appellant.

63 I go then to ground 1, which in the manner it was presented I am prepared to accept is within an appeal in point of law.

64 I have earlier referred to the issue put forward by the appellant in submissions on the s 78B application, being whether the parties had the limited right of appeal in s 32 of the Act or a full right of appeal said to be available under South Australian law. In his reasons Maguire J said, after an introductory paragraph -

"2. It is now suggested that there is an issue arising concerning the full faith and credit provision of the constitution of Australia. The issue is said to be the scope of the right of appeal that exists from a decision of this Tribunal to the Court of Appeal of New South Wales and its contrast with the right of appeal which exists from a judgment of the Supreme Court of South Australia to a Full Bench of that Court. I fail to see that there is any issue before me at present. There are two reasons for that.

3. Firstly, nobody can appeal until there is a judgment. If there is not a judgment there can be no appeal and any examination of the kind suggested by Mr Little does not presently arise. Section 78B of the Judiciary Act speaks in the present tense "Involves a matter arising under the constitution". There is no such matter arising.

4. My second reason is this, that the Court of Appeal and I have separately and in respect of quite differential [sic] issues determined that this Tribunal is an appropriate place for this litigation to take place. I interpolate that it does not matter for anybody's purposes at the moment whether I am sitting in Sydney or Adelaide or indeed any other part of the world. This is the appropriate Tribunal for this litigation. If it goes to judgment one party will be aggrieved. That party will have an appeal pursuant to the law that governs the operation of this Tribunal which is the appropriate venue for the determination of this litigation."

65 Ground 1 describes the issue as "whether there existed a conflict between the substantive law of New South Wales and South Australia as regards the ambit of the appellant's rights in these proceedings". This is close to the issue at that time as I have described it. Maguire J declined to adjourn the proceedings because there was "no issue before me at present". His Honour gave as his first reason that there was no matter arising under the Constitution. The second reason may have been that the purported issue was unarguable, although it is (with respect) not entirely clear.

66 The appellant put little argument in support of ground 1. In my opinion his Honour was correct in his first reason, and it is unnecessary further to explore the second reason.

67 In order that s 78B apply the proceedings before his Honour had to involve what I will for short call a constitutional matter. It was not necessary that the position for which the appellant contended on the constitutional matter was correct, provided the constitutional matter was raised bona fide (see Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864; (2000) 101 FCR 1 at [15] and cases cited). But whether the proceedings involved a constitutional matter was a different question. Mere assertion is not enough, and a postulated constitutional matter may in truth not arise (see Green v Jones (1979) 2 NSWLR 812 at 818; Narain v Parnell (1986) 9 FCR 497 at 488-9; Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73).

68 The constitutional issue in the present case evolved into one going to the jurisdiction of the Tribunal, as has been seen. But it had not reached that stage of evolution at the time of the s 78B application, and it was not for his Honour to draw out for himself a challenge to his own continuation with the proceedings which, as will be evident from my consideration of the constitutional issue, I regard as rather ambitious. At the time of the s 78B application the proceedings did not involve appellate rights. It is true that the Tribunal's jurisdiction was in part defined by the extent of the right of appeal from the Tribunal (see earlier in these reasons), but that effect on the Tribunal's jurisdiction was of no consequence to Maguire J's dealing with the proceedings. Appellate rights would come up only when his Honour had finished with the proceedings, and the proceedings with which his Honour was concerned did not involve the issue then put forward as the constitutional issue.

69 In the notice of appeal the relief claimed by the appellant was a verdict in its favour. Failure to adjourn proceedings in obedience to the s 78B(1) duty would at most upset the verdict in favour of the respondent, although it is not easy to see why it would do that, leading to a new trial. It could not lead to a verdict for the appellant. The appellant has now been able to argue the (evolved) constitutional issue, after notice to the Attorneys General. The appellant fails on that issue. No substantial wrong or miscarriage would have been occasioned if Maguire J had erred in failing to accede to the s 78B application, and so in any event pursuant to Pt 51 r 23(1) of the Rules the verdict in favour of the respondent would survive ground 1.

70 With the (evolved) constitutional issue raised in the appellant's written submissions of 20 December 2002, the proceedings before his Honour may well have involved a constitutional matter. By force of s 78B(1) it would have been his Honour's duty not to proceed pending notice to the Attorneys General. It would also have been the responsibility of counsel to draw that duty to his Honour's attention. No ground of appeal was addressed to error at this point in the proceedings. If there were error, no substantial wrong or miscarriage was occasioned.

71 I return to the submission that the limitation of the appeal to this Court to appeal in point of law was invalid and a full right of appeal was available. The argument was that the conflict between the South Australian right of appeal on all grounds and s 32 of the Act should be resolved, again by adaption of the Act to consistency with the legislative powers of the other States (Mobil Australia Pty Ltd v State of Victoria cited above), by holding s 32 of the Act valid "only to the extent that there is no inconsistency". As earlier explained, there is no relevant conflict and no constitutional cause to intervene in the extent of conferral of jurisdiction on the Tribunal and this Court. How any intervention could enlarge this Court's statutory appellate jurisdiction need not be gone into.

Forum Non Conveniens

72 Ground 5 was -

"On the basis of the matters set out in paragraph 2 above and on the basis that all questions of convenience were heavily in favour of the respondent's case being dealt with by the Supreme Court of South Australia his Honour erred in declining to stay the proceedings. His Honour should have found that they ought to have been commenced in the Supreme Court of South Australia."

73 The "paragraph 2 above" was ground 2. As I have said, in the notice of appeal the relief claimed by the appellant was a verdict in its favour. In submissions it said that, if ground 5 were upheld, this Court should now order a stay of proceedings on terms that the appellant consented to a hearing in the Supreme Court of South Australia using the evidence already given supplemented as the parties desired.

74 At the time of the forum non conveniens application to Maguire J the appellant did not identify a basis for the application in statute or rules of court. The application was implicitly on common law principles of forum non conveniens, with particular reference to Goliath Portland Cement Company Ltd v Bengtell so far as it was concerned with those principles. The appellant's position at that time was that the statement of claim had not been validly served under the Service and Execution of Process Act 1992 (C'th) ("the SEP Act"), a position it maintained in the appeal; it took that position for the consequential position that, following the discontinuance as against BI, the jurisdiction of the Tribunal had gone. That the jurisdiction had gone had not been accepted in this Court, but it is understandable that the appellant continued its denial of jurisdiction pursuant to service under the SEP Act and so did not found its application on the statutory power to stay proceedings under the SEP Act.

75 A court may stay proceedings on forum non conveniens grounds in the exercise of its inherent jurisdiction "in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case" (Voth v Manindra Flour Mills Pty Ltd at 554). The court in which the proceedings have been brought must be "a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of `seriously and unfairly burdensome, prejudicial or damaging', or, vexatious, in the sense of `productive of serious and unjustified trouble and harassment'." (ibid at 586; repeated in Regie National des Usines Renault SA v Zhang at [78]). The ultimate consideration is one of prevention of injustice (Regie National des Usines Renault SA v Zhang at [25]).

76 The question for his Honour was not, as ground 5 suggested, whether the respondent's proceedings ought to have been commenced in the Supreme Court of South Australia. It was whether the Tribunal was a clearly inappropriate forum according to the principles stated by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 247-8, see Voth v Manildra Flour Mills Pty Ltd at 564, 586.

77 Maguire J first noted the stage the proceedings had reached, and that on the material before him the respondent was likely to die before the end of February 2003. After setting out a history of the proceedings, his Honour said -

"6. It is common ground that I have a discretion to rule on this matter. I have been referred by both counsel to the decision of the Court of Appeal in Goliath Portland Cement Company Limited v Bengtell and Another (1994) 33 NSWLR 414. I am clearly of the view that had the plaintiff never sued the second defendant in the instant case or had she discontinued significantly earlier than last Thursday and had this application been made promptly in relation to either of those two possibilities the test set out by Gleeson CJ in Goliath may well have operated in favour of the defendant. However, that is not the case there. There have been 11 interlocutory occasions before judges prior to today.

7. Much of the costs involved will be thrown away if I exercise my discretion against the plaintiff. That waste has been compounded by the defendant's failure to make the application on Friday last in Sydney. I am told that the Supreme Court of South Australia has a protocol that would get the plaintiff's case on quickly if I rule in favour of the defendant and the plaintiff starts afresh in that Court. Given the fact that we are now enjoying the second half of December, given that the registry of the Supreme Court of South Australia will close for the holidays and will not reopen until 6 January 2003 I think that those facts must be taken into account in the exercise of my discretion on the point taken.

8. Timing in this case is everything. I have already referred to the fact that the application should have been made on Friday, or at lest flagged on Friday. It was not made at 10 o'clock this morning. It was only after the case had started that it was made. Taking into account all the matters to which I have referred I think it fair that I should exercise my discretion in favour of the plaintiff and hold that the Tribunal is not a clearly inappropriate forum. I do so."

78 His Honour was exercising a discretion, and the appellant must demonstrate that his exercise of discretion miscarried within the principles for which House v The King [1936] HCA 40; (1936) 55 CLR 499 is conventionally cited. It may or may not add to the appellant's burden, but s 32 of the Act requires that it also establish error in point of law.

79 The appellant scarcely addressed the reasons given by Maguire J for the exercise of his discretion. Its submissions included that delay on its part in seeking a stay of the proceedings in the Tribunal was not relevant, in that it would have been "hard pressed to obtain a stay" until after the discontinuance against BI on 12 December 2002 and that it thereafter moved swiftly. Perhaps generously to the appellant, his Honour seems to have accepted that the appellant was justified in not making its application prior to the discontinuance against BI, and I do not think that his Honour held against the appellant that it had not applied prior to that discontinuance. He was not impressed by failure to apply on the preceding Friday, no doubt because that meant that all concerned were already gathered in Adelaide for the hearing of the proceedings when the application was made. I see no error in his Honour paying regard to that as a matter contributing to the waste of costs if the hearing did not proceed.

80 The appellant's submissions in this Court were founded on s 20 of the SEP Act. This statutory basis, rather than the inherent jurisdiction, was only invoked on appeal.

81 By s 20, except in relation to a proceeding in which the Supreme Court of a State is the court of issue the person served may apply to the court of issue for an order staying the proceeding, and -

"(3) The court may order that the proceeding be stayed if it 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.

(4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:

(a) the places of residence of the parties and of the witnesses likely to be called in the proceeding; and

(b) the place where the subject matter of the proceeding is situated; and

(c) the financial circumstances of the parties, so far as the court is aware of them; and

(d) any agreement between the parties about the court or place in which the proceeding should be instituted; and

(e) the law that would be most appropriate to apply in the proceeding; and

(f) whether a related or similar proceeding has been commenced against the person served or another person;

but do not include the fact that the proceeding was commenced in the place of issue.

(5) The court's order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense."

82 The appellant submitted that Maguire J failed to take into account the permissible matters in paras (a) - (f) of s 20(4) and took into account the impermissible matter that the proceedings had been commenced in the Tribunal. It submitted that his Honour had erred in considering that the applicant's delay, for present purposes the delay from the Friday to the Monday, outweighed all other considerations. The appellant said that each of the matters in s 20(4) compelled a finding that the Supreme Court of South Australia was the appropriate court, and that paramount in his Honour's mind should have been that by South Australian law the appellant was entitled to a trial before a Supreme Court judge with an unfettered right of appeal therefrom.

83 Section 20(4) is not exhaustive, and does not preclude taking into account matters other than those stated in paras (a) - (f) if those matters are relevant (save so far as it excludes the fact that the proceeding was commenced in the place of issue). In its terms, however, it calls for regard to the matters in the paragraphs. His Honour's reasons do not specifically advert to the matters in the paragraphs, no doubt because the application made to his Honour was not founded on the SEP Act.

84 A reading of the transcript shows that counsel for the appellant rested his application on the domicile of the respondent and the place of business of the appellant being in South Australia, the commission of any tort being in South Australia, and in particular that the substantive law to be applied was that of South Australia. This was the constitutional point in its first form, directed to reception of evidence previously given and relitigation of general issues previously determined. Counsel submitted that the constitutional point would not arise if the proceedings were heard in the Supreme Court of South Australia. As I have said, the constitutional point fell away when counsel for the respondent effectively disclaimed reliance on s 25B and s 25(3) of the Act. It does not seem that there was otherwise any dispute that, in accordance with John Pfeiffer Pty Ltd v Rogerson, the substantive law to be applied was the law of South Australia, and the question of appellate rights was not raised by the appellant until a later time.

85 The South Australian focus of the litigation was plain. Once s 25B and s 25(3) were out of the way, the application made to Maguire J was substantially against the background, common to the parties, that at a practical level there was no real difference between litigating in the Tribunal sitting in Adelaide and litigating in the Supreme Court of South Australia, the complication of appellate rights not having been raised. The appellant's reliance on Goliath Portland Cement Co Ltd v Bengtell was for the passing reference (at 419-20) to stay of proceedings against a Tasmanian defendant if there had not been the New South Wales co-defendant, and his Honour indicated that if the appellant alone had been sued or the discontinuance against BI had occurred earlier a stay may well have been appropriate. But then there was the stage the proceedings had reached, the respondent's state of health and delay if she were forced to start again in a South Australian court, and the waste of costs in that event. His Honour considered, in the exercise of his discretion, that when the proceedings in the Tribunal had progressed to the hearing then under way a proper exercise of his discretion was adverse to the appellant.

86 As an exercise of discretion on the common law principles of forum non conveniens, I do not think error in this exercise of discretion has been shown. It was entirely open to his Honour to consider that the Tribunal was not a clearly inappropriate forum.

87 It is not clear to me that, when it did not advert to the SEP Act before his Honour and its position was that there had not been valid service under that statute, the appellant can now complain that the statutory power to stay the proceedings was erroneously exercised. However, in my view the result is the same.

88 Although the "court of issue" was the Tribunal, a New South Wales court, and the "place of issue" was New South Wales, the Tribunal was sitting in Adelaide. So far as the appellant relied on Adelaide rather than a place in New South Wales as the place of residence of the parties and the witnesses and the place where the subject matter of the proceedings was situated, there was no reason to regard the Supreme Court of South Australia as the appropriate court for the proceeding, because the Tribunal was as a practical matter equally appropriate. His Honour had no information as to the financial circumstances of the parties, but so far as the appellant relied on financial hardship in litigating elsewhere than in the Supreme Court of South Australia there is no reason to think that the litigation in the Tribunal, sitting in Adelaide, would impose greater hardship. Indeed, a stay of the proceedings in the Tribunal and forcing the respondent to bring fresh proceedings in the Supreme Court of South Australia could only increase costs (there was unchallenged evidence to that effect), and any regard to the financial circumstances of the parties would tell against finding that the Supreme Court of South Australia was the appropriate court for the proceedings. It is evident that there was no agreement between the parties about the court or place in which the proceedings should be instituted. Save as to s 25B and s 25(3), there was no suggestion that the substantive law to apply in the proceedings would differ according to whether they were litigated in the Tribunal or in the Supreme Court of South Australia, and those exceptions were nullified by the respondent's attitude. No question of appellate rights had been raised. No relevant related or similar proceedings commenced against the respondent or another person were suggested.

89 If the application had been founded on the statutory power to stay proceedings under the SEP Act, either because there was nothing to take into account or because the facts were all but common to the parties it would not have been necessary for his Honour specifically to canvass in his reasons the matters in paras (a) - (f) of s 20(4). Nor would there have been an impermissible taking into account of "the fact that the proceeding was commenced in the place of issue". A party which has commenced proceedings in one place can not for that reason alone enhance its ability to continue the proceedings. Where the proceedings have continued and the stay would cause wasted costs or other injustice to that party, that can be taken into account: it is part of the focus on "the advantages and disadvantages arising from a continuation of the proceedings in the selected forum" (Voth v Manindra Flour Mills Pty Ltd at 558). His Honour took into account the waste of costs, in the particular circumstances, if the proceedings were stayed. That was permissible.

90 I do not accept the assertion that regard to each of the matters in paras (a) - (f) of s 20(4) compelled a finding that the Supreme Court of South Australia was the appropriate court for the determination of the case. But in any event, determining the appropriate court is not the end of the exercise. Section 20(3) of the SEP Act confers a discretion following satisfaction that a court of another state with jurisdiction is the appropriate court for determination of the case. If there had been reference to the SEP Act, in my view his Honour's discretion would have been exercised in the same way. Again, the stage the proceedings had reached, the respondent's state of health and delay if she were forced to start again in a South Australian court, and the waste of costs in that event would have shaped the exercise of discretion. In my opinion his Honour was entitled to see as of particular significance in doing justice between the parties the stage which the proceedings had reached and the waste of costs if they were to be stayed. Exercising the statutory discretion which his Honour was not asked to exercise, a stay of proceedings was not appropriate.

Liability/Foreseeability

91 A number of the grounds trespassed beyond appeal in point of law. I will come to the grounds separately, but will first introduce some of the evidence in the proceedings and refer to some parts of Maguire J's reasons.

92 The West Block was constructed for the appellant in the mid-1960's. Steel members were fireproofed by spraying with a fire protection asbestos, specified as "a mix of high grade white amosite fibre combined with shorter chrysotile fibre with cement and an approved bonding agent". In most areas there were suspended ceilings beneath the sprayed members, but in the plant room in the basement the sprayed members were exposed.

93 The respondent gave evidence that when maintenance work was carried out in the ceiling spaces of the West Block, which occurred regularly and sometimes daily, she saw dust and fibre coming down which she inhaled. She described the times she spent in the areas where the dust and fibre were present. She saw the dust and fibre on her uniform and settled on the floor. Two electricians employed by the appellant from about October 1973 (Mr Walter Dawson) and February 1974 (Mr Eric Stevenson) gave evidence of maintenance work in the ceiling spaces involving disturbance of the asbestos insulation and the insulation material falling to the floor. Neither the respondent nor the electricians were warned of any danger from the asbestos, and other than sweeping it up with a broom nothing was done to prevent its distribution. These accounts, which were more detailed than this summary, were plainly accepted by his Honour, and were not in issue on appeal.

94 The respondent called Professor Douglas Henderson to give evidence of the state of knowledge concerning risk of exposure to asbestos in the early 1970's. Through Professor Henderson and otherwise, it tendered a number of publications in order to show the state of knowledge; Professor Henderson gave oral evidence on the subject.

95 Professor Henderson described the respondent's exposure as "in the range of very light to light", but said that it "would have been in excess of any `background' exposure expected for a control or reference urban population without identifiable occupation or domestic or environmental exposure to asbestos".

96 Maguire J set out a good deal of Professor Henderson's evidence. His Honour's reasons included, this extract from paras [19]-[22] beginning with some of Professor Henderson's evidence -

" ...

Question And as at 1972 what opinion had you formed.

Answer Well, by 1972 the opinion was that asbestos generally was dangerous to health.

20. Mr Joseph read to the professor an extract from the 1968 report on hygiene standards done for the British Occupational Hygiene Society.

The primary danger of inhaling asbestos dust is asbestosis. It is generally recognised that there is also significant risk of lung cancer associated with asbestosis, a risk of mesothelioma of the pleura and peritoneum exists in connection with the inhalation of crocidolite dust in particular. There can be little doubt that these risks will be least in the lowest concentration but the quantitative relationship between asbestos and cancer risk is not known, nor is it known exactly why these two are related or even whether all kinds of asbestos present a risk. Consequently it is not possible at this time to specify on air concentration which is known to be free of risk in this respect.

21. The professor's response:

Answer I wasn't aware of that specific opinion at that time but that opinion is within the broad mainstream medical thinking at that time and as I have mentioned we were all very disturbed about the capacity of apparently low dose and very transient asbestos exposures to produce mesothelioma and we did not know how many people would be at risk in the general community.

Question Did they know whether there was a minimum dose of asbestos fibre which was safe in 1972.

Answer No, as far as I'm aware, and it was my recollection of the discussions that no threshold of safe exposure had been delineated for mesothelioma induction and that was one of the disturbing aspects of the relationship.

Further:

Question Doctor, is it your opinion that all exposure whether from brief or not brief is biologically significant in the development of mesothelioma.

Answer Yes

Question Why do you say that.

Answer For the reasons I've just been saying, once the fibres are deposited the amphibole fibres tend to persist and they will build up over time of repeated inhalations and we know that the risk of mesothelioma is related to the inhaled dose of asbestos deposits in lung tissue.

Question Apart from the risk, doctor, does it materially contribute to the disease itself, that is the cumulative exposure.

Answer Yes, we know that the risk of mesothelioma among other factors is related to the cumulative inhaled dose of asbestos and that each increment in exposure produces a correspondent increment in risk.

22. Further, Mr Joseph was asking the professor about the state of affairs in 1972. The professor had this to say:

Answer Had I been aware that circumstance at the time I would like to think that given my knowledge that mesotheliomas have been described in association with apparently very low dose, I think the literature stated minimal asbestos exposures which would be quite transient, I had the attitude that early on that all exposures to asbestos should be minimised so far as is possible not to avoid the risk of asbestosis, not to avoid even the risk of lung cancer but specifically to avoid the risk of mesothelioma."

97 His Honour said in paras [23]-[24] of the reasons -

"23. I have been referred by counsel for the defendant to only one portion of the cross-examination of the professor, this is in par 30 of the submissions.

However, when Professor Henderson was cross-examined he was unable to identify a single publication or report in existence prior to 31 May 974 that identified or documented that there existed a risk to persons inhaling asbestos dust and fibre in circumstances such as the plaintiff's; that is inhaling on an intermittent basis light to very light doses of amosite and chrysotile asbestos fibre falling into a work area as a result of maintenance works being undertaken in a ceiling space dislodging such particles of asbestos insulation that was in situ in that ceiling space."

24. I find that submission misleading. The professor gave abundant evidence about danger, about dose and about concerns in the medical and scientific communities at that time."

98 His Honour later said, referring to the appellant's written submissions before him -

"41. I refer to par 66:

Neither Professor Henderson or Mr Gordon Stewart proffered any evidence of the likely exposure levels or dose that the plaintiff might have been subjected in the period 1971-1974.

42. Professor Henderson certainly did. He made it clear that her exposure was sufficient to cause her to contract the disease. That is her case."

99 In paras [38]-[40] of the reasons his Honour noted the appellant's submission to the effect that foreseeability of risk involved reasonable foresight at the time of exposure and should not be determined by or with the benefit of hindsight, and observed that no suggestion was made to Professor Henderson that he was engaging in hindsight when he spoke of the concerns he had about the dangers of asbestos in the mid-1960's.

100 In paras [50]-[52] his Honour said -

"50. The evidence persuades me that before the plaintiff's exposure ended and in large part before it commenced there was in circulation an abundance of printed learning which should have alerted the defendant to the danger to an employee such as the plaintiff from dust released into the atmosphere by workmen working in the ceiling space.

51. I accept the evidence of the plaintiff, of Mr Dawson and Mr Stevenson. Those responsible for running this place must have seen workmen at work in the ceiling space disturbing dust in the way that these three witnesses describe. If they did not see it they ought to have done so. They were aware or ought to have been aware of the danger posed to the employees in the situation of the plaintiff. There is no doubt that the defendant was aware of the presence of asbestos because the use of it was specified at the time the building was constructed for the defendant. The asbestos dust described by the plaintiff and her two witnesses could have been safely removed from time to time with a vacuum cleaner, and this removal would certainly have reduced the risk of injury.

52. I find that between May 1971 and May 1974 the defendant ought to have known that it was exposing the plaintiff to the risk of injury by reason of its failure to warn her or otherwise to protect her from that risk. If it did not know that is no justification. The defendant had a duty to the plaintiff. A reasonably prudent employer in the position of this defendant would have taken the relatively simple steps needed to reduce the risk of injury to the plaintiff. Its breach of duty amounted to negligence. It was also in breach of a statutory duty imposed by the Health Act of South Australia."

101 I will make some further reference to the evidence and to his Honour's reasons when considering the grounds.

102 Ground 6 was -

"6. His Honour erred in determining the question of foreseeability and breach of duty by reference to the question whether the appellant should have known of the dangers of exposure to asbestos, rather than to the question of whether the appellant, as employer and occupier, should have known in the period 10 May 1971 to 31 May 1974 (`the material period') of the dangers of exposing the respondent to levels of asbestos below, and well below, the accepted standards of that time. (J3 at [38]-[40] and [50]-[52]"

103 The appellant's submission, reflecting the ground, was that his Honour erred in asking himself whether the appellant should have known of the risk of injury from exposure to asbestos, and should have asked himself whether the appellant should have known of the risk of exposure "to small quantities for a low level of asbestos meaning something below, and in the case of this employer, seemingly well below, the then accepted exposure standard". For the latter question it referred to Seltsam v Minahan (1996) 13 NSWCCR 330 at 424 and Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 334. The appellant submitted that, because he asked himself the incorrect question, his Honour failed to make any finding as regards the then accepted exposure standard, and referred in some detail to the evidence with a view to demonstrating that there was a then accepted exposure standard and that the respondent's likely exposure was less than that standard.

104 Foreseeability can arise in relation to duty of care or in relation to breach of duty. Foresight that carelessness may cause damage may, but depending on the nature of the case will not necessarily, give rise to a duty of care. Foresight of the risk of injury, a risk that is not far-fetched or fanciful, is then part of the enquiry into breach of duty, in which the magnitude of the risk and the probability of its occurrence are balanced with other matters to determine the response of the reasonable man: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8.

105 The appellant owed the respondent a duty of care. She was its employee, working in its hospital, and the appellant's duty of care included taking reasonable care to provide a safe working environment. The foreseeability of the risk of injury to the respondent went to the appellant's breach of duty; but it was sufficient for the enquiry into breach of duty that the risk of injury was not far-fetched or fanciful.

106 In Seltsam Ltd v Minahan foreseeability arose in relation to breach of duty. The plaintiff handled rolls of asbestos tape for a total of six to nine months while working as a storeman. There was evidence, which the trial judge accepted, that before some time in the 1960's it was thought that there was a safe level of exposure to asbestos dust and fibre expressed as less than 5 million particles per cubic foot. The trial judge asked whether the plaintiff's employer from 1959 to 1964 "ought reasonably to have known that exposure to asbestos constituted a risk of injury", and answered in the affirmative.

107 On appeal Sheller JA, with whom Handley and Powell JJA relevantly agreed, noted (at 424) that there was no suggestion the plaintiff was exposed to a level of asbestos that would at the time have been known or suspected to have given rise to any risk of injury, and said (at 424-5) -

"MMI's appeal proceeded on the footing that his Honour posed the wrong question in considering whether AWV was in breach of its duty of care. In my opinion the question was not, as his Honour put it, whether AWV should have known of the dangers of asbestos exposure but whether it should have known of the dangers of exposure to small quantities or a low level of asbestos meaning something below, and in the case of this employer, seemingly well below, the accepted standard. Since his Honour did not consider this question this Court must resolve the appeal by answering the question for itself. In my opinion there was no evidence sufficient to support a conclusion that AWV in 1964 should reasonably have known of any risk of injury to the plaintiff from asbestos dust levels less than the accepted limit and hence from his work in the store involving as it did the handling intermittently of the asbestos tape."

108 This was the passage on which the appellant relied. However, Sheller JA continued (at 425) -

"Mr Toomey sought to defend the verdict in two ways. First he referred to evidence which may have suggested that the plaintiff was exposed to asbestos while employed at AWV elsewhere than in the store room. Objection was taken at the trial to this evidence as going beyond the plaintiff's particulars and it was rejected. This evidence is not available on the appeal. The plaintiff's case against AWV stands or falls on the consequences of the plaintiff's exposure to asbestos while handling the asbestos tape in the store room. Mr Toomey accepted there was not evidence that at any stage while employed in the store room the plaintiff was exposed to asbestos dust of anything like the level of 5 million particles per cubic foot. Mr Toomey put the argument on the basis that asbestosis was known to be a dose related disease with a risk increasing as more asbestos was inhaled. While it was thought there was a threshold of safety it was known that what caused asbestosis was the accumulation of asbestos in the lungs. AWV should have known that even a dose below the accepted level could accumulate and contribute to ultimate injury. However, Judge O'Meally did not find for the plaintiff against AWV on this basis. None of the findings his Honour made supports it. In my opinion the argument should be rejected.

Since the plaintiff failed to establish any breach of duty against AWV the verdict against MMI to the extent it depends upon negligence should be set aside. For like reasons I do not think the verdict on the statutory count can stand. The question was whether at any time while AWV employed the plaintiff it ought to have known that the inhalation of small amounts of asbestos dust would be likely to be injurious to him. There is no evidence to justify answering this question in the affirmative. Indeed the evidence points in the opposite direction."

109 From this it seems that the result may have been different if the evidence had not been that it was thought that there was a safe level of exposure expressed according to a particular standard, but rather that at the material time it was recognised that there was risk in exposure even to small amounts of asbestos. The proper question was dictated by the evidence. If the evidence were different, the question would be different.

110 That is demonstrated by Bendix Mintex Pty Ltd v Barnes, which is adverse to the appellant's submission rather than in its favour. In relation to foreseeability the reasons of Beazley JA were adopted by Mason P and received the agreement, with additional remarks, of Stein JA.

111 The plaintiff was exposed to asbestos fibres from brake linings from about 1962. Foreseeability arose in relation to both duty of care (the defendants Bendix and Jsekarb as suppliers of brake linings) and breach of duty (the defendant Exxon as employer and Bendix and Jsekarb). While there was reference to a then accepted exposure standard, the evidence went beyond an accepted standard at the time believed to be a safe standard. The evidence included that asbestosis and mesothelioma were generally dose related but could be contracted with minimal exposure and that no safe level of exposure had been identified.

112 The defendants' submissions included that it had to be foreseeable that low level exposure such as in the case of the plaintiff could cause mesothelioma or an asbestos or dose related injury. Beazley JA observed (at 329) that foreseeability does not require foreseeability of the precise risk of injury suffered, referring to Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, Beavis v Apthorpe (1962) 80 WN (NSW) 852; [1963] NSWR 1176 and Commonwealth v McLean (1996) 41 NSWLR 389. Her Honour referred to a deal of evidence, relevantly summarised that the knowledge available at least by 1960 was that the inhalation of asbestos was dangerous, and to evidence of Dr Burns that if asked at the time he would have said that there was no dose of asbestos that would not produce a mesothelioma. Her Honour concluded (at 332) that although there was uncertainty, and some studies indicating that brake service workers were not at risk because the level of dust emitted was very low -

"However, given that during this period, when there was a substantial body of evidence which raised explicit concerns about even low levels of asbestos exposure, it was foreseeable that there was a risk of harm to a person so exposed."

113 Her Honour then referred to evidence that Exxon was probably aware that the inhalation of asbestos dust and/or fibre could be a health risk and could cause asbestosis and may have been aware that it could cause mesothelioma. Her Honour said (at 332) -

"Whilst these concessions did not specifically relate to chrysotile, it was not necessary, in my opinion, for the respondent to establish that it was foreseeable that exposure to a particular type of asbestos could cause injury. At the relevant time it was known that asbestos, as a generic substance, was hazardous. Nor was it necessary for Mr Barnes to prove that it was foreseeable that he could contract the particular injury of mesothelioma. It was sufficient that it was foreseeable that the inhalation of asbestos could cause an injury of the kind which he suffered: Mount Isa Mines Ltd v Pusey; Beavis v Apthorpe; Commonwealth v McLean. I am of the opinion that on this evidence as well, foreseeability has been established as against Exxon."

114 Turning to Jsekarb, her Honour referred to papers in its possession or that of its joint venture partner which, while noting the exposure standards, said that there was no safe upper limit and that "all fibre and any fibre is dangerous". Her Honour said (at 334) that -

" ... Jsekarb had available to it significant information that exposure to asbestos was dangerous and that end users of products could be exposed to asbestos. Notwithstanding the uncertainties which surrounded the question of the level of exposure which was dangerous, it was foreseeable that a person exposed to raw asbestos might suffer an asbestos related disease. That was sufficient to establish foreseeability."

115 Her Honour then turned to Bendix. The appellant relied on her Honour's citation from Seltsam Ltd v Minahan. Putting the citation in context, what her Honour said (at 334-5) was -

"Counsel for Bendix submitted however that the question of foreseeability had to be approached on the basis that Bendix's products were sold in a packaged form, moulded ready for use, with particular linings designed for particular models of vehicles so that the linings were intended to be used in the form in which they were provided to the end user, that is, it was not intended nor was it necessary that they be cut, ground or otherwise interfered with. Further, any exposure to asbestos whilst using Bendix's product was only whilst removing the old linings and, it followed, the exposure was at a very low level. It was submitted that in these circumstances, the correct question to ask in relation to causation

was that formulated by this Court in Seltsam Ltd v Minahan (at 15-16):

"Not whether AWV should have known of the dangers of asbestos exposure but whether it should have known of the dangers of exposure to small quantities or a low level of asbestos meaning something below, and in the case of this employer, seemingly well below, the accepted standard."

This submission was based upon two premises: first that Bendix's products were not sold in New South Wales prior to 1969 and secondly that they were packaged in a ready to use form. There was evidence that Bendix did not set up a sales office in New South Wales until 1969. However that does not establish that Bendix did not sell its products in New South Wales prior to that time or alternatively that its products were not sold in New South Wales prior to then. Mr Barnes' evidence was that he used Bendix products from 1962. It was open to his Honour to accept that evidence, as he evidently did. As to the second basis of this submission, the evidence established that bonded brake linings did not come into use until about the early 1970s. Prior to that, Bendix's brake linings required riveting to attach them to the brake shoe. There was thus an eight year period of exposure to dust containing asbestos. In any event, Mr McSwain gave evidence that he had seen mechanics grind bonded linings.

In my opinion, given that the state of knowledge as to the dangers of asbestos was that any level of exposure could not be excluded as potentially dangerous, foreseeability as against Bendix was also established."

116 Although Beazley JA cited from Seltsam Ltd v Minahan, her Honour did so in recording Bendix's submission. It appears that the submission was founded on the particular facts, as Bendix would have had them, in effect that Bendix had no reason to believe that the plaintiff would be exposed to asbestos dust from its products at all. The submission failed on the facts. Beazley JA did not adopt or endorse the question taken from Seltsam Ltd v Minahan, and her Honour's conclusion was not consistent with that being the correct question. Rather, the question implicit in the conclusion was whether Bendix should have known of the dangers of exposure to asbestos at any level.

117 The additional remarks of Stein JA included (at 344) -

"In particular, I agree with Beazley JA that there was more than sufficient evidence on foreseeability. The risk of injury from exposure to asbestos in the period in which the respondent was involved with the appellants was a foreseeable one. It is also apparent that Exxon (the respondent's employer) had specific knowledge available to it of the dangers of asbestos. The appellant Jsekarb (one of the manufacturers of brake linings) had available to it knowledge of the dangers through its retainer of Dr McCullagh. Bendix (the second manufacturer) was in a different position. However, it had certain knowledge and information available to it and I conclude that it ought to have known of the potential dangers of exposure to small quantities of asbestos: Seltsam Ltd v Minahan (Court of Appeal, 20 March 1996, unreported)."

118 In these remarks his Honour referred to the dangers of asbestos and the dangers of exposure to small quantities of asbestos. A safe standard of exposure was not recognised. His Honour's reference to Seltsam Ltd v Minahan must have reflected that, on the facts, Bendix should have known of the dangers of exposure to small quantities of asbestos below any accepted standard.

119 To the same effect, again adverse to the appellant's submissions, is E M Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 435. The reasons of Fitzgerald AJA relevantly received the agreement of Meagher and Beazley JJA.

120 The plaintiff was exposed to asbestos fibre from brake linings supplied by the defendant Jsekarb in the course of his employment by the defendant Baldwin; he was otherwise exposed to asbestos fibre at Baldwin's premises in the course of his employment. There was thus an issue as to causation. As to foreseeability, Baldwin accepted that it owed a duty of care to its employee but submitted "that the question whether or not foreseeability of risk was established must be decided by reference to tests which are said to be discernible in this Court's decision in Seltsam Ltd v Minahan" (at [97]). (It seems that Jsekarb did not contest foreseeability, at least on appeal.)

121 After some discussion of Seltsam Ltd v Minahan, including citation of Sheller JA's formulation of the foreseeability question, Fitzgerald AJA said (at [103]) -

"In my opinion, the decision in Minahan turned on the evidence in that case, which does not lay down any principle or approach with respect to foreseeability which is of general application. Certainly, there is nothing in the judgment in Minahan which suggest that the principles with respect to foreseeability were being modified or restated. Discussions of foreseeability in more recent decisions of this Court concerning claims for damages for mesothelioma caused by the inhalation of asbestos fibre are more helpful for present purposes. Foreseeability was not an issue in ICI Australia Operations Pty Ltd v Walsh (1997) 15 NSWCCR 279, but was discussed in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, CSR v Wren (1998) Aust Torts Reports 81-461, and CSR v Young (1998) 16 NSWCCR 56."

122 His Honour referred in particular to the three decisions last mentioned. He cited extensively from Bendix Mintex Pty Ltd v Barnes, and as to CSR Ltd v Young expressed agreement with the majority opinion which -

" ... accepted as correct that "the known toxicity" of asbestos dust, and the "the known uncertainty" as to the effects of exposure to asbestos dust together with knowledge that injury or illness might not emerge for many years, gave rise to a risk which "could not be dismissed as "remote", "slight", "far-fetched" or "fanciful". Those adjectives are obviously derived from Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40." (at [110])

123 Noting evidence of known relationship between lung cancer and inhalation of asbestos since the 1940's and legislation "implicitly recognising `any substantial quantity of dust of any kind' as a potential health hazard" since 1962, his Honour said (at [111]) -

"Whatever might have been the position earlier, it is futile for an employer which exposed an employee who now has an asbestos-related disease to substantial asbestos dust during a period within the last 35 years to litigate foreseeability in the Dust Diseases Tribunal in other than exceptional circumstances. The fact that asbestos dust was generated or given off from products obtained from an apparently reputable supplier who provided no warning is not a circumstance which excludes foreseeability, at least if the employer was aware of the dust which was occurring, as Baldwin plainly was."

124 This discussion was then translated to breach of duty (at [115]-[118]).

125 The appellant did not seek leave to reargue these decisions. In my opinion, they are fatal to the appellant's submissions. Foreseeability can turn on knowledge of the dangers of any exposure to asbestos, including in the calculus for breach of duty, and is not confined to knowledge of the dangers of exposure to high levels of asbestos or levels of asbestos above any particular standard. (There are difficulties in using the standards in any event, but it is not necessary to go into that.) On the evidence before him, Maguire J did not err in his approach to foreseeability. Of course, the existence of an accepted standard may in the enquiry into breach of duty be material to the response of the reasonable man. But that is a different matter, and Maguire J's finding of breach of duty, even if thought a robust finding, is a finding of fact with which this Court can not be concerned (see later in these reasons).

126 Ground 7 was -

"7. His Honour erred in finding that the appellant breached its tortious duties of care to the respondent in circumstances where the respondent adduced no evidence of any scientific, medical, or other work published prior to 1984 (ten years after the respondent's last alleged exposure) that identified a risk to building occupants exposed to intermittent light to very light `bystander exposure' from asbestos dust and fibre falling from ceilings to occupied areas as a result of maintenance works or otherwise (that is, to persons during the material period in the position of the respondent)."

127 The ground is not entirely clear. On one view it asserts error of law in that there was no evidence of something, the something going to breach of "tortious duties of care" which, at least for the purposes of the ground, are assumed. On another view it asserts error of fact in that in the absence of evidence of the something the finding of breach of duty was not warranted.

128 The essence of the submissions in support of the ground was that it was not open to his Honour to find that in 1971-1974 the appellant breached a duty owed to the respondent not to expose her to a risk that "was not known or even postulated as a real possibility until around 1984". To that end, the risk was described in the manner set out in the ground and the something of which there was no evidence was scientific, medical or other works identifying a risk so described. The appellant's written submissions went in great detail through the publications in evidence with a view to demonstrating that they did not identify a risk as described in the ground.

129 It is not necessary that there were publications identifying the particular risk to building occupants of so-called bystander exposure to asbestos dust and fibre falling from ceilings as a result of maintenance works or otherwise. The discussion of foreseeability in relation to ground 6 is pertinent. What was foreseeable involved application to particular circumstances of a recognised risk of exposure to asbestos.

130 Thus, in the passages from his Honour's reasons earlier set out Professor Henderson spoke of asbestos generally being dangerous to health and endorsed as within mainstream medical thinking the 1968 publication stating that a risk-free concentration could not be specified. He said that "no threshold of safe exposure had been delineated for mesothelioma induction". Although the appellant sought to make much of the words that "I would like to think" in conjunction with his opinion as at 1972 that all exposures to asbestos should be minimised, his opinion was clear enough. Also taken up in his Honour's reasons was Professor Henderson's endorsement of a 1968 chapter by Chung and Selikoff which spoke of mesothelioma in -

" ... those who handle products containing only a small proportion of asbestos, those who do not handle asbestos at all but merely work along side asbestos workers such as craftsmen employed in the building industry - carpenters, electricians, et cetera - those who have relatives who carry asbestos home in their work clothes and those who live close to asbestos plants."

Professor Henderson said he "would interpret that as being synonymous with bystander - that is indirect exposure".

131 There is no point in multiplying references. This evidence of risk of exposure, and much other, was readily applicable to the particular circumstances of the respondent in the hospital where frequent work in the ceiling spaces brought readily visible distribution of asbestos fibres. There did not have to be a state of knowledge specifically directed to (for example) asbestos dust and fibre falling from ceilings as a result of maintenance works, and what mattered was the asbestos dust and fibre however generated. The artificial construct in this ground of a narrowly described risk is misconceived.

132 The appellant sought to support its submission by reference to Harlander Pty Ltd (in liquidation) v State of New South Wales [2002] NSWCA 323. A cross-claim by Harlander against the State raised whether the State owed to the plaintiff a duty of care requiring that it warn her of risk of exposure to asbestos. The plaintiff was employed by Harlander as a clerical worker. Harlander operated from the same premises as Betta. Betta manufactured asbestos products, and had a contract with the State to provide asbestos mats for the Department of Education. The trial judge held that no duty of care was owed. In dismissing the appeal it was said (at [63]) that a particular letter said to demonstrate knowledge in the State of the plaintiff's exposure to risk did not "speak to the plaintiff's circumstances" (at [63]). The appellant took up this phrase, and said that in the present case no publication prior to 1984 spoke to the respondent's circumstances.

133 In Harlander Pty Ltd (in liquidation) v State of New South Wales the point being made was that the letter dealt with handling asbestos materials in confined spaces, not with what was regarded as bystander exposure, and so a warning in the terms of the letter would not have spoken to the plaintiff's circumstances. The letter was thus sidelined as evidence of actual knowledge of risk to bystanders, but that did not exclude proof otherwise of knowledge of risk to bystanders. The phrase was not used as the test of the State's knowledge of risk to bystanders, and the State's knowledge of risk to bystanders was further addressed. It was said (also at [63]) that there was no evidence that the knowledge of the State extended to any apprehension of danger to a bystander not handling asbestos.

134 As always, the decision in the case turned on the evidence (or lack of evidence). In the present case the respondent was not a bystander in anything like the same sense as the plaintiff in Harlander Pty Ltd (in liquidation) v State of New South Wales. She was an employee to whom a duty of care was owed. There was evidence of frequent visible distribution of asbestos fibres. There was evidence on which it was held that the state of knowledge of the appellant should have extended to the risk to an employee such as the respondent from exposure to asbestos, and that the appellant knew or ought to have known of her exposure to dust and fibres released into the atmosphere by workmen working in the ceiling space. Harlander Pty Ltd (in liquidation) v State of New South Wales does not assist the appellant.

135 Ground 8 was -

"8. His Honour erred in finding that the appellant breached its tortious duties of care to the respondent as an employer or occupier in circumstances where:

(a) the appellant adduced unchallenged evidence that the accepted exposure standard at the material time was 4 fibres / ml on a time-weighted average for persons exposed to asbestos in the course of their occupation for more than 8-hours per day;

(b) the respondent adduced no evidence as to the respondent's likely dose or exposure level (on a time-weighted average or otherwise), safe that maintenance works in the ceilings, ` ... would have produced intermittent peak airborne concentrations of asbestos fibres";

(c) the appellant adduced expert evidence to the effect that the respondent's likely exposure level in the period of her employment would have been (when considered on the then standard time-weighted average basis) many orders of magnitude below the said applicable exposure standard of the material period.

(d) the appellant adduced expert evidence to the effect that the alleged maintenance works in the ceiling would have released asbestos dust and fibre during the material period in amounts well below levels that were capable of being detected (even using modern testing equipment);

(e) the appellant adduced unchallenged expert evidence to the effect that it was not until 1979 that the NHMRC for the first time recommended that exclusion zones might in some circumstances be implemented when removing in-situ asbestos (by wet methods) in existing commercial buildings;

(f) the appellant adduced documentary evidence from the period 1983-1984 which confirmed that when inquiries were made at that time with the South Australian Health Commission advice was provided to the appellant to the effect that the building in which the respondent had worked (some ten years earlier) was safe to be occupied, and that the limpet asbestos in the ceiling spaces did not need to be removed."

136 As to each of paras (a) to (e) of the ground, in its written submissions the appellant simply repeated its submissions with respect to grounds 6 and 7. The written submissions in this context may call for a change in focus. The ground involves more directly the enquiry into the response of the reasonable man, and can be seen as the contention that, given in particular an accepted exposure standard and the level of exposure, the appellant did not act unreasonably in taking no action to prevent or reduce the exposure of its employees.

137 In oral submissions an argument to that effect was presented, although somewhat in passing and said to be "on the legal test". It was said that it is necessary to look at the reasonableness of the appellant's response against the perceived risk, and that the perceived risk was so slight that a response was not required.

138 Any attractions the argument might have, however, would be at the level of fact. In Dennis v Watt (1943) 43 SR (NSW) 32, in which a driver who had momentarily fallen asleep was found not guilty of negligent driving, Jordan CJ said (at 32) -

"What the Statute penalises, for all purposes relevant to the present case, is the act of driving negligently, and the question whether negligence has occurred is essentially one of degree. From certain findings of fact it would necessarily follow, as a matter of law, that an accused person had been negligent; from others, that he had not. Between these extremes, however, there lies a broad limbo in which, upon the facts found, the question whether negligence had occurred would depend upon the view taken of their relative importance and significance. In such a case, the ultimate determination becomes also one of fact, and a decision either way by a tribunal of fact cannot be said to be wrong in law, unless it appears that the case has been so decided because some legal principle has been wrongly applied."

139 The distinction between a question of fact and a question of law (here the phrase is appeal "in point of law") is a difficult one, and "no satisfactory test of universal application has yet been formulated" (Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394). It is nonetheless a distinction which must be made, not only in the present context (see the discussion in Attorney-General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653). Breach of duty has consistently been regarded as a question of fact. In the passage speaking of the response of the reasonable man in Wyong Shire Council v Shirt (at 47-8) it is said that it is for "the tribunal of fact" to determine what the reasonable man would do. To take a recent case, in Woods v Multi-Sport Holdings Ltd [2002] HCA 9; (2002) 208 CLR 460 the question of what steps the defendant should reasonably have taken was described and treated as one of fact (at [1], [45], [61], [114], [136]-[138]).

140 To repeat what I have earlier said, then, even if Maguire J's finding of breach of duty is thought a robust finding it is not one with which this Court can be concerned. There was evidence, which was accepted, sufficient for the finding of breach of duty. In part anticipating ground 15, so far as by paras (a) to (e) the appellant appealed in point of law, for the reasons thus far stated error of law has not been made out, and so far as it asserted error of fact appeal is not open to it.

141 The appellant's submissions as to para (f) of the ground included that Maguire J had misstated the appellant's purpose in tendering the documentary evidence and had erred in a conclusion to which, according to the appellant, he came by regard to the documents. I do not think his Honour misstated the appellant's purpose, nor do I think he came to the conclusion attributed to him.

142 The appellant's major point, however, was the submission that the documents amounted to advice to the effect stated in para (f), and the appellant could not have breached a duty of care by failing to seek the advice of the South Australian health authorities in 1971-74 because "the only reasonable inference that can be drawn is that such advice as might have been provided would not have required the Appellant to change its actions (insofar as they might affect the Respondent) in any way".

143 Advice of the kind on which the appellant relied did not really touch the circumstances of disturbance of asbestos material and its falling within the West Block, that producing respondent's actual exposure to asbestos. The advice was predicated upon the asbestos material remaining largely undisturbed. Nor was the appellant found liable to the respondent because it failed to seek the advice of the South Australian health authorities. In any event, the finding of breach of duty of care was a finding of fact, and so far as the documents were relevant to it there can be no appeal on the ground that his Honour failed to give them appropriate weight. This paragraph of the ground does not constitute an appeal in point of law.

144 Grounds 9 - 12 were -

"9. His Honour erred in finding that in the period prior to and during 10 May 1971to 31 May 1974, the appellant, ` ... was aware or ought to have been aware of the danger posed to the employees in the situation of the plaintiff'. (J3 at [51])

10. His Honour erred in find that, ` ... between May 1971 and May 1974 the (appellant) ought to have known that it was exposing the plaintiff to the risk of injury by reason of its failure to warn her or otherwise to protect her from that risk'. (J3 at [52])

11. His Honour erred in finding that a `reasonably prudent employer in the position of the (appellant) would have taken (in the material period) the relatively simple steps needed to reduce the risk of injury to the (respondent)'. (J3 at [52])

12. His Honour erred in finding, by express reference to an August 1984 letter from the South Australian Health Commission to the appellant, that in the material period scientific, medical or other works had been published that ought reasonably have alerted an employer or occupier in the position of the appellant to there being a risk for a person in the position of the respondent undertaking nursing work in a building containing sprayed limpet asbestos to structural steel beams above the ceiling tiles and which might, by reason of maintenance works, result in the intermittent release of asbestos dust and fibre. (J3 at [36]-[37] and [47]-[48])"

145 The appellant dealt with these grounds together. It simply repeated its submissions concerning grounds 6 and 7, and added some additional matters for ground 9 and for grounds 10 and 11.

146 For reasons already given, so far as the appellant repeated its submissions concerning grounds 6 and 7 they do not avail it. So far as by those grounds the appellant appealed in point of law, error of law has not been made out, and so far as it asserted error of fact appeal is not open to it.

147 The additional submission under ground 9 was that to the extent that his Honour found that the appellant was aware, as distinct from ought to have been aware, of the danger posed to employees in the situation of the respondent, the evidence was insufficient for such a finding. It matters not, because the finding of breach of duty stands in any event. Lack of actual knowledge of risk to an employee is not protective of the employer, and if the employer ought to have known of the risk the lack of knowledge is part of its default: see for example Bendix Mintex Pty Ltd v Barnes at 334. In any event, there was evidence from which knowledge could be inferred and the finding is one of fact with which this Court can not be concerned.

148 The additional submissions under grounds 10 and 11 were no more than repetition in different language of the submissions concerning ground 7, and did not materially add anything.

149 The submissions concerning grounds 6 and 7 did not clearly go to ground 12. There were no additional submissions as to that ground. What follows reflects my understanding of what the appellant meant by the ground.

150 In paras [36]-[37] of his reasons Maguire J said, referring to the appellant's written submissions -

"36. I refer to par 43:

None of these documents identify that in the period prior to the end of the plaintiff's employment with the first defendant on 31 May 1974 there was published any material that ought reasonably to have alerted an employer or occupier in the position of the first defendant that there existed a risk for a person such as the plaintiff undertaking nursing work in a building containing sprayed limpet asbestos to structural steel beams above the ceiling tiles and which might, by reason of maintenance works, result in the intermittent release of asbestos dust and fibre.

37. I reject that submission. I need only refer to the August 1984 letter tendered by the defendant itself, urged upon me and embraced by Mr Pickford."

151 The August 1984 letter included that at that time the asbestos material was in good condition "and if work in the ceiling spaces is well managed" its removal would not be necessary for many years, but that if at any time work which would significantly disturb the asbestos were carried out "further consideration should be given for the removal of asbestos from the area concerned". It contained a recommendation that "the occasional and localised examples of detached asbestos debris be vacuumed from ceiling tiles before any given ward is opened for use .. ". Mr Pickford expressed the view that if there had been debris in the ceiling space in 1971 it should have been vacuumed out. Maguire J referred to all this in his paras [47]-[48].

152 The August 1984 letter was self-evidently not published in the period prior to 31 May 1974. However, it was open to his Honour to find that the letter and the evidence of Mr Pickford together connoted concern, applicable to the early 1970's, that the asbestos in the ceiling space should not be disturbed and that any disturbed asbestos should be vacuumed. His Honour was plainly enough addressing the substance of the appellant's submission, going to risk of which it should have been aware in the period prior to 31 May 1974, and was not erroneously ascribing to the August 1984 letter publication in the early 1970's. At best for the appellant any error was one of fact.

Statutory Duty - Health Act 1935 (SA)

153 Grounds 13 and 14 were -

"13. His Honour erred in finding that the appellant breached the statutory duties imposed by s 124 of the Health Act, 1935 (SA).

14. His Honour erred in failing to provide reasons as to how, or in what way, the appellant breached the said provisions of the Health Act, 1935 (SA)."

154 The respondent pleaded breach of statutory duty by failure to keep the premises where she worked in a clean state and adequately ventilated in such a manner to render harmless asbestos dust and fibre, contrary to s 124(1) of the Health Act. The holding that the appellant was "in breach of a statutory duty imposed by the Health Act of South Australia", stated in those brief terms at the end of para [52] of the reasons, was clearly enough arrived at for the reasons given for the tortious breach of duty. No further reasons were required.

155 The appellant submitted that it was necessary that the appellant should have known in 1971-1974 that the inhalation of small amounts of asbestos dust would be likely to be injurious to the respondent, and that the evidence did not establish that. It referred again to Seltsam Ltd v Minahan and the matters on which it had relied in relation to foreseeability for the tortious duty of care. It may be that foreseeability plays a lesser part in breach of the statutory duty, see E M Baldwin & Son Pty Ltd v Plane at [99], but it is not necessary to go into that. On the facts of this case, liability in tort and liability for breach of statutory duty went hand in hand, and it is sufficient that, for reasons earlier given, no appellable error in the holding of breach of statutory duty has been shown.

No Evidence for Factual Findings; alternatively, Factual Findings Erroneous

156 Ground 15 was -

"15. There was no evidence upon which it was open to find the following facts, alternatively, His Honour was in error in finding the following facts;

(a) that there existed in Adelaide prior to 31 May 1974, " ... an abundance of printed learning which should have alerted the (appellant) to the danger to an employee such as the (respondent) from dust released into the atmosphere by workmen working in the ceiling space'. (J3, [50])

(b) that there existed in the material published scientific, medical or other works that ought reasonably have alerted an employer or occupier in the position of the appellant to there being a risk for a person in the position of the respondent undertaking nursing work in a building containing sprayed limpet asbestos to structural steel beams above the ceiling tiles and which might, by reason of maintenance works, result in the intermittent release of asbestos dust and fibre. (J3 at [36-[37] and [47]-[48])

(c) that the appellant was, in the material period ` ... aware ... of the danger posed to employees in the situation of the plaintiff'. (J3, [51])

(d) that ` ... those responsible for running (the appellant's premises in the period prior to and during 10 May 1971 to 31 May 1974) must have seen workmen in the ceiling spaces disturbing dust'. (J3, [51])

(e) that, ` ... the asbestos dust described by the plaintiff and her two witnesses (Messrs Dawson and Stevenson) could have been safely removed from time to time with a vacuum cleaner'. (J3, [49] and [51])"

157 For paras (a), (b) and (c) of the ground the appellant simply repeated its earlier submissions. It is unnecessary to traverse them again. There was evidence sufficient for the findings, and any error was as to fact.

158 Under para (d) of the ground the appellant submitted that there was no express evidence that persons "responsible for running the hospital" saw workmen in the ceiling space disturbing dust; that the West Block was a large building comprising three floors and a basement; that it was part of a larger facility of many buildings; that the administrative office was housed elsewhere in another building; and that there was no evidence of administrative personnel visiting the West Block on a routine or ad hoc basis or that on any visit they might have passed areas in the West Block in which dusty maintenance works in ceiling spaces were being undertaken. It submitted that there was insufficient evidence for the finding made by the judge.

159 I do not think it could be said that there was insufficient evidence on which the finding could be made. Facts can be found by inference, and the inference that management was aware of the work being undertaken and the presence of dust and fibres was available. Any error (and I do not suggest that there was error) was as to fact.

160 The submission with respect to para (e) appears to have been that "safely" in the finding was not supportable. There was the evidence from Mr Pickford earlier mentioned that vacuuming would have been desirable. The appellant said that if even minimal exposure to asbestos was dangerous, there would be exposure prior to vacuuming, and so vacuuming did not mean safety.

161 In my view this reads too much into the finding. Safety is relative. No doubt as part of considering the response of the reasonable man, his Honour was referring to a readily available means of reducing the respondent's exposure. On the facts, it would have reduced the exposure very significantly from the widespread settling of disturbed dust and fibres on clothing and the floor. I do not think there was error, but any error was not in point of law.

The result

162 I propose that the appeal be dismissed with costs.

163 CRIPPS AJA: I agree with Giles JA.

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LAST UPDATED: 29/04/2003