British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83 (27 February 2009)

Last Updated: 3 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83


JURISDICTION:


FILE NUMBER(S):
16148 of 2007

HEARING DATE(S):
6 February 2009

JUDGMENT DATE:
27 February 2009

PARTIES:
British American Tobacco Australia Services Limited (Plaintiff)
Claudia Jean Laurie (First Defendant)
Amaca Pty Ltd (under NSW External Administration) (Second Defendant)
Commonwealth of Australia (Third Defendant)

JUDGMENT OF:
Harrison J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
J R Sackar QC with P J Brereton (Plaintiff)
J A McIntyre SC with S Tzouganatos (First Defendant)
B R Ferrari (Third Defendant)

SOLICITORS:
Corrs Chambers Westgarth (Plaintiff)
Turner Freeman (First Defendant)
Australian Government Solicitor (Third Defendant)


CATCHWORDS:
CROSS VESTING - Jurisdiction of Courts (Cross-Vesting) Act 1987 – s 5(2)(b)(iii) and s 8(1) – application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to the Supreme Court of Victoria - whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state – whether Victoria is the forum with the most real and substantial connection to the proceedings – document destruction allegations – whether allegations had a particular connection to Victoria – evidence taken by trial judge at bedside hearing in Texas – potential significance of observations made by trial judge as to credit, credibility and demeanour – summons dismissed

LEGISLATION CITED:
Administration and Probate Act 1958 (Vic)
Compensation to Relatives Act 1897
Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Regulation 2007
Jurisdiction of Courts (Cross-Vesting) Act 1987
Law Reform (Miscellaneous Provisions) Act 1944
Uniform Civil Procedure Rules 2005
Wrongs Act 1958 (Vic)

CATEGORY:
Principal judgment

CASES CITED:
Amaca Pty Limited v Frost [2006] NSWCA 173; (2006) 67 NSWLR 635
Amaca Pty Limited v Mundy [2008] NSWSC 604
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400
Blunden v Commonwealth [2003] HCA 73; (2003) 218 CLR 330
British American Tobacco Australia Limited v Gordon [2007] NSWSC 230
British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197
Cowell v British American Tobacco Australia Services Limited [2007] VSCA 301
Harman v Home Office [1983] 1 AC 280
James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357
McCabe v British American Tobacco Australia Services Limited [2002] VSC 73
McCabe v British American Tobacco Australia Services Limited [2007] VSC 216
Spilliada Maritime Corp v Cansulex Limited [1987] 1 AC 460
Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36
Volkswagen Financial Services Australia Ltd v City Prestige Service Centre Pty Limited [2007] NSWSC 203

TEXTS CITED:


DECISION:
Summons dismissed



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HARRISON J

27 February 2009

16148 of 2007 British American Tobacco Australia Services Limited v Claudia Jean Laurie, Amaca Pty Limited (under NSW External Administration) and Commonwealth of Australia

JUDGMENT

1 HIS HONOUR: By its summons filed on 6 December 2007 the plaintiff seeks two orders. First, an order pursuant to s 8(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Act") that proceedings pending in the Dust Diseases Tribunal of New South Wales between Claudia Jean Laurie ("Ms Laurie") as plaintiff, Amaca Pty Ltd ("Amaca") as first defendant, the Commonwealth of Australia ("the Commonwealth") as second defendant and British American Tobacco Australia Services Limited ("BATAS") as third defendant ("the DDT proceedings") be removed into the Common Law Division of this Court. Secondly, an order pursuant to s 5(2)(b)(iii) of the Act that the DDT proceedings when removed to this Court be transferred to the Supreme Court of Victoria.

Background

2 The facts underpinning the plaintiff's application are uncontroversial and are briefly as follows. Donald Henry Laurie ("Mr Laurie") was the husband of Ms Laurie. He was born on 4 September 1940 and he died on 29 May 2006. Prior to his death Mr Laurie had on 15 March 2006 commenced the DDT proceedings. In his statement of claim Mr Laurie alleged that he contracted lung cancer (from which he died) as a result of smoking and/or occupational exposure to asbestos in Australia. Mr Laurie claimed damages for personal injuries as well as exemplary damages from BATAS upon the basis that it acted with contumelious, deliberate and conscious disregard for his rights, health, welfare and safety. In support of that allegation Mr Laurie asserted that "after engaging in the negligent conduct", BATAS developed and implemented "a policy or practice of destroying, or causing the destruction of, documents in the possession, custody or power of BATAS which, if admitted into evidence in legal proceedings . . . commenced by persons claiming damages in respect of injuries allegedly suffered as a consequence of smoking tobacco products" might assist such persons. These are referred to as the document destruction allegations.

3 In addition to these claims, Mr Laurie alleged that he was exposed to asbestos during three identified periods. These periods were first, when he worked as a boilermaker for approximately six months in about 1962, secondly, when he worked as a stoker and engine room artificer serving in the Royal Australian Navy from about 1963 until about 1968 and thirdly, when he worked as a boilermaker from about 29 May 1970 to 30 July 1971. Mr Laurie alleged that the asbestos to which he had been exposed had been manufactured and sold or supplied by Amaca.

4 At the date when the DDT proceedings were commenced, Mr Laurie was gravely ill. He was then and had for some many years been a resident of the United States of America. The first directions hearing in the DDT proceedings took place on 23 March 2006. The Tribunal ordered pursuant to s 22(1)(a) of the Dust Diseases Tribunal Regulation 2007 that the matter be removed from the claims resolution process usually applicable to dust claims in the Tribunal. Certain other directions were made.

5 On 20 April 2006 the Tribunal ordered that Mr Laurie's evidence be taken at his bedside and ordered pursuant to s 13(7) of the Dust Diseases Tribunal Act 1989 ("the DDT Act") that this occur outside New South Wales. The Tribunal also ordered pursuant to Part 24.3 of the Uniform Civil Procedure Rules 2005 that his Honour Curtis J be appointed as an examiner to take Mr Laurie's evidence at a venue to be arranged in Kingsbury, Texas, commencing on 26 April 2006. The Tribunal directed that his Honour should be the member before whom the DDT proceedings would be heard and noted an agreement among the parties to those proceedings as follows:

"NOTES an agreement between the parties that Curtis J will be entitled, when hearing and deciding the proceedings, to take into account credit, credibility and demeanour observations made while taking the evidence as examiner."

6 Mr Laurie's evidence was taken on 26 April 2006 as arranged. That evidence was video recorded and has been transcribed. It has been tendered in these proceedings. On 17 May 2006 the Tribunal made further orders and directions including a direction for the provision of "section 25(3) material". This was a reference to that section in the DDT Act.

7 On 22 June 2006 Mr Laurie's solicitors Slater & Gordon served a draft amended statement of claim that proposed that Ms Laurie continue the DDT proceedings on behalf of the estate of Mr Laurie pursuant to s 29 of the Victorian Administration and Probate Act 1958 or s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 and on her own behalf as a dependant pursuant to the Victorian Wrongs Act 1958 or s 3 of the Compensation to Relatives Act 1897. The proposed amended statement of claim deleted the claim for exemplary damages against BATAS but included a claim for aggravated damages against it based on the document destruction allegations. It included a claim by Ms Laurie for compensation for loss of non-financial support and included particulars inviting the Tribunal to draw adverse inferences based on the document destruction allegations.

8 On 21 July, 25 July, 22 August and 26 September 2006 Slater & Gordon served a series of witness statements and expert reports. These are referred to later in these reasons.

9 On 14 June 2007 Ms Laurie obtained a grant of probate from this Court in respect of the Mr Laurie's estate. Then on 11 July 2007, after considerable interlocutory skirmishing that had commenced in approximately June 2006, to the unedifying details of which it is presently unnecessary to refer, the Tribunal made an order substituting Ms Laurie for Mr Laurie as the plaintiff in the DDT proceedings and granted her leave to file an amended statement of claim. Ms Laurie filed an amended statement of claim on 13 July 2007. At a directions hearing on 17 August 2007 a solicitor from Slater & Gordon informed the Tribunal that Slater & Gordon would be ceasing to act for Ms Laurie in the DDT proceedings. This is referred to in more detail below.

10 At a directions hearing on 14 September 2007 Ms Laurie's present solicitors informed the Tribunal that they anticipated receipt of instructions to act for her. In due course Ms Laurie instructed Turner Freeman to appear for her in the DDT proceedings. On 5 November 2007 BATAS informed Ms Laurie's solicitors that it intended to make an application to transfer the DDT proceedings to the Supreme Court of Victoria. At the directions hearing in the Tribunal on 10 December 2007 it stood the DDT proceedings over to 7 April 2008 in order that this Court might deal with the present application. In the events that occurred, these proceedings did not come before me until Friday 6 February 2009.

11 The amended statement of claim records Ms Laurie's address as Centreville, Ohio in the United States of America. Ms Laurie's present solicitors are Turner Freeman who have offices in New South Wales, South Australia and Queensland but not in Victoria. Amaca's registered office is in Sydney but in any event it has indicated that it was effectively uninterested in contributing to the plaintiff's application. The Commonwealth is represented by the Australian Government Solicitor, which has offices in Sydney and Melbourne. BATAS has not yet served any witness statements upon which it proposes at trial to rely. BATAS has not received any statements or expert reports upon which either Amaca or the Commonwealth proposes at trial to rely.

12 In late September 2006 Slater & Gordon came into possession of documents ("the Clayton Utz documents") created or received by BATAS's former lawyers Clayton Utz, which contained information relevant to the document destruction allegations. Clayton Utz had represented BATAS in McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 ("the McCabe proceedings") in the Supreme Court of Victoria. The plaintiff in those proceedings had claimed damages from BATAS for injuries allegedly received by her sustained as the result of smoking cigarettes manufactured or distributed by BATAS. Slater & Gordon represented the plaintiff in the McCabe proceedings.

13 On 25 March 2002 the Supreme Court of Victoria made an order striking out BATAS' defence in the McCabe proceedings except insofar as it related to damages. Those orders were based on findings that BATAS had, prior to commencement of the McCabe proceedings, destroyed documents relevant to Ms McCabe's case pursuant to a policy described as a "document retention policy" that had been devised to ensure the destruction of material that might potentially be helpful to plaintiffs in future smoking and health litigation. On 11 April 2002 the Supreme Court of Victoria gave a verdict in favour of Ms McCabe for $687,560 plus costs. Following Ms McCabe's death on 26 October 2002, Roxanne Cowell, the executor of her estate, was appointed to represent the estate for the purposes of the appeal. On 6 December 2002 the Victorian Court of Appeal set aside that verdict and related orders.

14 The Clayton Utz documents had been created between the judgment at first instance and the appeal in connection with an internal review that Clayton Utz conducted following the decision at first instance. BATAS first became aware that Slater & Gordon had come into possession of the documents in November 2006. BATAS asserts that the information contained in the Clayton Utz documents is confidential to it. By summons filed in this Court on 23 November 2006 BATAS sought permanent injunctions against Slater & Gordon ("the Slater & Gordon proceedings") enjoining them from publishing, disseminating or using certain information contained in the Clayton Utz documents and orders for delivery up. On 23 November 2006 this Court made certain interim orders by consent restraining Slater & Gordon in the terms sought in the summons until 29 November 2006. Those orders were extended by consent until further order on that day.

15 On 19 December 2006 BATAS filed a statement of claim in the Slater & Gordon proceedings. A defence to that statement of claim was filed on 31 January 2007. In its defence Slater & Gordon have contended that the information that BATAS has asserted is confidential is not protected as such because BATAS had engaged in an iniquity. This included contentions that BATAS had falsely asserted that there was an innocent explanation for the destruction of prejudicial documents in order to prevent adverse inferences being drawn by a court in relation to that destruction, and by placing them beyond the reach or awareness of litigants.

16 On 27 February 2007 BATAS joined Ms Cowell as a defendant in the Slater & Gordon proceedings upon the basis that Slater & Gordon had disclosed certain information contained in the Clayton Utz documents to her. On 22 March 2007 this Court made orders restraining Ms Cowell from publishing, disseminating or using certain information contained in the Clayton Utz documents. On 16 March 2007 this Court ordered under the Act that the Slater & Gordon proceedings be transferred to the Supreme Court of Victoria: [2007] NSWSC 230 at [70]. That duly occurred. BATAS served an amended statement of claim in those proceedings on 25 May 2007.

17 On 30 May 2007 Ms Cowell reactivated the McCabe proceedings by filing a summons for orders to modify the implied undertaking commonly associated with the House of Lords decision in Harman v Home Office [1983] 1 AC 280 so as to permit her and Slater & Gordon to use documents produced by BATAS under compulsion in the McCabe proceedings for the purposes of the Slater & Gordon proceedings. On the same day Slater & Gordon filed a summons seeking orders varying the injunction made and extended until further order by consent in this Court so as to permit them to use the Clayton Utz documents for the purposes of their defence in the Slater & Gordon proceedings.

18 On 6 July 2007 the Supreme Court of Victoria made orders:

(a) in the McCabe proceedings varying the implied undertaking to permit Ms Cowell and Slater & Gordon to use documents produced under compulsion in the McCabe proceedings for the purposes of the Slater & Gordon proceedings; and

(b) in the Slater & Gordon proceedings varying the injunctions to permit the use of the Clayton Utz documents by Slater & Gordon and Ms Cowell for the defence of the Slater & Gordon proceedings: see [2007] VSC 216.

19 On 13 September 2007 the Supreme Court of Victoria dismissed an application by Slater & Gordon for an interlocutory hearing for the purpose of seeking orders to dissolve the injunctions restraining the use of the Clayton Utz documents. On 14 December 2007 the Victorian Court of Appeal:

(a) in the Slater & Gordon proceedings, dismissed an application by BATAS for leave to appeal from the orders of the Supreme Court of Victoria made on 6 July 2007 and dismissed an application by Slater & Gordon for leave to appeal against the orders of the Supreme Court of Victoria made on 13 September 2007: [2007] VSCA 301; and

(b) in the McCabe proceedings, dismissed an application made by BATAS to appeal against the orders of the Supreme Court of Victoria made on 6 July 2007 modifying the implied undertaking.

20 The DDT proceedings were listed before Curtis J on 7 April 2008 for directions. The proceedings were stood over to 26 May 2008, and since then on a number of occasions. They are currently next listed for directions on 5 March 2009.

21 The Slater & Gordon proceedings came before his Honour Byrne J in the Supreme Court of Victoria on 16 May 2008 for directions when they were adjourned in order to give Ms Cowell an opportunity to file an amended defence. That defence was filed on 23 June 2008. Slater & Gordon had filed an amended defence on 28 April 2008. On 25 July 2008 Ms Cowell filed a proposed further amended defence. When the matter came back before Byrne J on 1 August 2008 Ms Cowell foreshadowed the service of a further proposed further amended defence. Her application to be permitted to do so came before his Honour on 5 December 2008 and was heard as a contested application. His Honour's judgment remains reserved.

22 In an affidavit sworn on 4 February 2009 by the solicitor on the record for BATAS, Mr John Pagent offers the opinion that the earliest date on which a hearing in the Slater & Gordon proceedings is likely is some time in approximately October 2010. He was not cross-examined on that opinion and I take it to be uncontroversial.

The case for the plaintiff

23 BATAS's application under s 8(1)(a) of the Act depends on whether it is "in the interests of justice" within the meaning of s 5(2)(b)(iii) of the Act that the DDT proceedings be determined in the Supreme Court of Victoria. If, and only if, it is in the "interests of justice" for those proceedings to be transferred to Victoria will the Court make the orders sought under s 8(1)(b)(ii) transferring the proceedings from the Dust Diseases Tribunal into this Court: see Volkswagen Financial Services Australia Ltd v City Prestige Service Centre Pty Limited [2007] NSWSC 203 at [10]; see also Amaca Pty Limited v Mundy [2008] NSWSC 604.

24 BATAS submits that it is "in the interests of justice" within the meaning of s 5(2)(b)(iii) that the DDT proceedings be determined in the Supreme Court of Victoria principally because:

(a) Victoria is the Australian jurisdiction which had the most real and substantial connection to Mr Laurie and his claims, being the state in which he was born and in which he lived for most of his life while in Australia, as well as the state in which he commenced and carried out most of his smoking in Australia, and the state in which he was first exposed to asbestos; and

(b) Ms Laurie advances document destruction allegations against BATAS that have a substantial interrelationship with similar allegations advanced against it in previous and current litigation in the Supreme Court of Victoria. Ms Laurie has indicated an intention to use documents and findings the subject of the current litigation in Victoria to support her document destruction allegations and wishes to delay the hearing of the DDT proceedings until the resolution of that litigation in Victoria.

25 The determination of whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state depends on what is the "more appropriate" forum for those proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161] – [169] per Kirby J. Another way of putting the same inquiry is to ask which is the "natural forum" for the proceedings: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44], Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69].

26 In Spilliada Maritime Corp v Cansulex Limited [1987] 1 AC 460 at 478 Lord Goff identified some of the "connecting factors" which were of importance in the application of the principle of forum non conveniens in England:

"So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business."

27 Those factors have been considered relevant in the assessment of the "interests of justice" in the application of s 5(2)(b)(iii) of the Act: see Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730E, Barry (supra) at [95] per Mason P; Schultz (supra) at [18] per Gleeson CJ, McHugh and Heydon JJ and at [163] per Kirby J. The location of the place of the wrong and the governing law of the wrong are also matters of prime importance in the exercise of the power of transfer under s 5(2)(b)(iii): see Barry (supra) at [7] per Spigelman CJ (a passage which was quoted with approval by Kirby J in Schultz (supra) at [165]). A further matter of importance in considering the "interests of justice" is whether the assessment of any questions arising in the litigation is dependent on a degree of local knowledge: see Bankinvest (supra) at 729D per Rogers AJA. There is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz (supra) at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J.

28 BATAS contended that Victoria is the forum with the most real and substantial connection to what were Mr Laurie's claims for four reasons. These contentions were in the form of helpful written submissions, which were to the effect of what follows.

29 First, Mr Laurie lived 35 of his 66 years in the United States. However, while he resided in Australia, he was a Victorian. Of his 31 years resident in Australia, for the first 23 he resided permanently in Victoria. He resided for no more than three years in Sydney between 1968 and his move to the United States in 1971. The balance of his period of residence in Australia was spent at sea or stationed on various naval bases in Australia.

30 Secondly, Mr Laurie's alleged cause of action against BATAS arose in Victoria. The claim against BATAS concerns smoking by Mr Laurie in the 25-year period from 1946 to 1971, referred to as the "smoking period". Seventeen of those years between 1946 and 1963 covered the period when Mr Laurie was resident in Victoria. For no more than three of them was he was resident in New South Wales and during the balance he was at sea. Moreover, it is Mr Laurie's evidence that his years of smoking in Victoria were the years that were formative of his smoking habit. Mr Laurie said he commenced smoking in Victoria at the age of six. He said he had become a regular smoker (smoking about 15 cigarettes a day) by 1955 at age 15 upon his leaving school and working in the Bendigo Ordnance Factory. By the age of 18 in 1958, Mr Laurie said that he had increased his rate of smoking to 20 cigarettes a day. He said he maintained that rate until he finally quit in 1996. Ms Laurie relies on evidence from two psychologists and a pharmacologist to the effect that Mr Laurie became addicted to smoking in Victoria.

31 Thirdly, the governing law applicable to Mr Laurie's cause of action against BATAS is likely to be Victorian. The proper law of a tort is the law of the place where in substance the cause of action arose: see Amaca Pty Limited v Frost [2006] NSWCA 173; (2006) 67 NSWLR 635 at [10] – [42] per Spigelman CJ (with whom Santow and McColl JJA agreed). The factors which indicate that the claim against BATAS advanced by Ms Laurie arose in Victoria are first, that Mr Laurie did most of his Australian smoking in Victoria, including his formative smoking and secondly, that the emphasis in the allegations of negligence made against BATAS is on the supply for sale and the marketing by BATAS of cigarettes which it was alleged it knew to be addictive and cause lung cancer, and a concomitant failure to warn Mr Laurie of those matters. In Mr Laurie's case, it was towards Victoria that the allegedly negligent conduct of BATAS was directed: see Amaca Pty Limited v Frost (supra) at [39] – [42].

32 Fourthly, Mr Laurie's claims arising out of his exposure to asbestos also have a significant connection to Victoria. Mr Laurie's first exposure to asbestos occurred in Victoria. Some small part of his alleged exposure to asbestos occurred in 1970 and 1971 in Sydney. Most, however, occurred while Mr Laurie was at sea in the Navy. The law governing the claims arising out of Mr Laurie's exposure to asbestos while in the Navy is likely to be the law of the forum where the case is heard: see Blunden v Commonwealth [2003] HCA 73; (2003) 218 CLR 330.

33 Next, BATAS contended that the document destruction allegations had a peculiar connection to Victoria. It submitted in this context that the following matters demonstrated that the Supreme Court of Victoria is the appropriate forum for the DDT proceedings.

34 First, as has been seen, the document destruction allegations advanced by Ms Laurie against BATAS find their origin in the conclusions of Eames J in the Victorian Supreme Court in McCabe. Those findings were challenged and overturned by the Victorian Court of Appeal in British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197. However, as has also been seen, the defendants to the Slater & Gordon proceedings now being conducted in the Supreme Court of Victoria have raised allegations substantially similar to the document destruction allegations advanced by Ms Laurie to resist the claims for confidentiality and privilege made by BATAS in relation to the Clayton Utz documents that are the subject of those proceedings. They have also indicated their intention to use that information to re-open the decision in British American Tobacco Australia Services Limited v Cowell (supra).

35 Secondly, the key act of document destruction found to have occurred by Eames J in McCabe was the destruction of documents by BATAS following the conclusion of the Cremona proceedings in the Supreme Court of Victoria in March and April 1998 (see [2002] VSC 73 at [127] – [172]). Moreover, it was in proceedings in the Supreme Court of Victoria, namely the McCabe proceedings, that the alleged effects of the document destruction policy were manifested and led to the findings of Eames J that, by reason of the conduct of BATAS and its legal advisers, the plaintiff in those proceedings was denied a fair trial (see [2002] VSC 73 at [290] – [322]).

36 Thirdly, the fact that the document destruction allegations against BATAS have a peculiar connection to Victoria leads to the conclusion that, in the interests of comity in the administration of justice in New South Wales and Victoria, Victoria is the preferable forum for the determination of those allegations. This consideration was one of the factors that caused Brereton J to transfer, on Slater & Gordon's application, the Slater & Gordon proceedings to the Supreme Court of Victoria. His Honour observed with reference to the document destruction allegations that "the forum in which the misconduct is alleged to have occurred is a preferable forum for determining whether it in fact occurred; it is the natural forum for the resolution of such an issue ...".

37 Fourthly, as noted above, Ms Laurie's solicitors have foreshadowed that they will seek to use the outcome of the Slater & Gordon proceedings, including the Clayton Utz documents, to support the document destruction allegations made against BATAS in the DDT proceedings. In their letter of 9 November 2007 to BATAS's solicitors, Turner Freeman stated that their understanding of the Slater & Gordon proceedings was that those proceedings:

"... may result in the availability of documents or findings that may be of assistance to Mrs Laurie in her proceedings. That being the case these proceedings should not be litigated until such time as the Victorian proceedings are determined".

38 BATAS argued that Ms Laurie's expressed intention to make use of the outcome of the Slater & Gordon proceedings, including the Clayton Utz documents, to support her document destruction allegations against BATAS and to delay the further conduct of the DDT proceedings until the Slater & Gordon proceedings are complete, demonstrates the importance of those allegations to her claims. It also indicates that, in the event BATAS is unsuccessful in the Slater & Gordon proceedings, there may arise potentially complex issues regarding the processes of the Supreme Court of Victoria and the exercise of its discretion to allow Ms Laurie to use the Clayton Utz documents. The defendants in the Slater & Gordon proceedings have indicated repeatedly that the sole use they wish to make of the Clayton Utz information is for the purposes of prosecuting an application to the Victorian Court of Appeal to overturn the decision of the Victorian Court of Appeal in British American Tobacco Australia Services Limited v Cowell (supra). Therefore, even if BATAS is unsuccessful in the Slater & Gordon proceedings, the Clayton Utz documents will not be at large. Rather, those documents will remain within the control of the Supreme Court of Victoria in litigation still extant before it.

39 Whether Ms Laurie should be entitled to use the Clayton Utz documents (even if BATAS is unsuccessful in the Slater & Gordon proceedings) to advance her document destruction allegations, what conditions should attach to any such use and how that use will be supervised are all issues that may arise in the DDT proceedings. They are issues which have some affinity with those that arise when leave is sought to use documents other than for the purposes of proceedings contrary to the implied undertaking associated with the decision in Harman v Home Office (supra).

40 All these matters are said to raise issues of discretion that only the Supreme Court of Victoria can effectively exercise. They are also said to raise issues of the control by that Court of documents the subject of litigation before it of which that Court, and only that Court, is the appropriate arbiter. They are matters that indicate that the appropriate forum for the DDT proceedings is the Supreme Court of Victoria.

The defendants' response

41 Ms Laurie and the Commonwealth both opposed the application. The principal basis of that opposition resided in the fact that Mr Laurie had given evidence in Texas at a time when BATAS had neither made nor foreshadowed the present application. That was said to have produced at least two consequences of significance. First, no detailed evidence was led from Mr Laurie in relation to the precise periods spent in Victoria or New South Wales when he smoked. If that issue were to have or to achieve any significance in the proceedings, Ms Laurie will suffer irremediable prejudice of an obvious kind.

42 Secondly, by reason of the agreement among the parties concerning the extent to which Curtis J was to be permitted to take account of demeanour and the like, any advantage that may accrue from his unique position would be lost were some other judge to be confronted with the case afresh. This was particularly so given the fact that evidence was given in Texas by Mr Laurie about his addiction to tobacco products manufactured by BATAS. He was extensively cross-examined in relation to this evidence and it was suggested to him by senior counsel for BATAS that he had determined to continue smoking, despite warnings that had been issued about the dangers of doing so. Even though this evidence was recorded on videotape, Curtis J was in the unique position of being able to make an assessment of Mr Laurie's credibility and demeanour when he gave it, and when pressed on important aspects of his evidence in cross-examination. Following his death it is not now possible for any new tribunal of fact to make the same assessment based upon personal observation.

43 The Commonwealth also emphasised the following matters.

44 The proceedings were regularly commenced in the Tribunal, which is a specialised tribunal with certain procedures and evidentiary presumptions not available in a normal civil action in other common law courts. Mr Laurie's evidence was taken in Texas. One of the issues arising between Mr Laurie and the Commonwealth was the extent and degree to which he was exposed to asbestos dust and fibre in a respirable form during the course of his engagement in the navy. Previous decisions of the Tribunal have required the epidemiological establishment of a doubling of the risk of contracting lung cancer from exposure to asbestos dust and fibre before a plaintiff could succeed in demonstrating that lung cancer had been materially contributed to by that exposure.

45 The Commonwealth contended that Mr Laurie's description of his working conditions with the navy fell far short of establishing any degree of exposure that could be said to have increased his risk of contracting lung cancer to double that of background or anything like it. In those circumstances a forensic decision was made by the Commonwealth to explore the nature and extent of exposure with Mr Laurie only in a most cursory way. If it had been appreciated or understood that causation might conceivably be determined by a jury as a matter of fact, the cross-examination about Mr Laurie's exposure would have been far more detailed and probing than the cross-examination actually undertaken. That position cannot now be remedied.

46 As to the jurisdiction with the closest connection to the action, the Commonwealth submitted that although Mr Laurie was located for a time in Victoria during training, most of his time on board naval vessels would have involved ships operating out of the fleet base in Sydney Harbour. Accordingly, both in respect of his exposure to asbestos dust and fibre and the consumption by him of tobacco products on board ship, the Commonwealth contended that there was a greater connection with New South Wales than with Victoria. The DDT proceedings should therefore not be cross-vested to the Supreme Court of Victoria.

Consideration

47 In my opinion the interests of justice do not favour the hearing of the DDT proceedings in the Supreme Court of Victoria. This is for the following reasons.

48 First, there is no issue that arises about when the proceedings should be heard. Ms Laurie does not want or need to have the DDT proceedings heard at or by any special or particular time. She is content to have the proceedings heard when the document destruction allegations and the status of the Clayton Utz documents have been finally determined. Ms Laurie is not an active party in those disputes and her proceedings do not have any impact upon or any direct role to play in their outcome. Conversely, BATAS has not pointed to any particular or identified advantage and is not liable to suffer any particular or identified disadvantage or detriment either in the DDT proceedings or the Slater & Gordon proceedings if the DDT proceedings are heard last.

49 Secondly, the suggestion that the document destruction allegations have a peculiar connection to Victoria seems to me, accepting it to be true, to be beside the point. The document destruction allegations certainly find their origin in the conclusions of Eames J in McCabe. But one might respectfully ask, so what? If, as seems apparent, all parties recognise that they must, or at least are prepared to, await the result of the document destruction allegations in the Victorian courts, then that raises no issue of the interests of justice that is not neutral if it raises the issue at all. The fact that the defendants in the Slater & Gordon proceedings have raised allegations substantially similar to those raised by Ms Laurie to resist the claims for confidentiality and privilege made by BATAS in relation to the Clayton Utz documents is to my mind a fact of no prominence. The legal and intellectual idiosyncrasies of cases giving rise to these issues concerning BATAS' policies, and cases based upon complaints about them, seem to me to be matters with no particular geographical or jurisdictional heritage. They are for all intents at large. The use to which the pending decisions about the document destruction policy in general or the Clayton Utz documents in particular can be put in subsequent proceedings both in New South Wales and Victoria, as well as elsewhere, will be limited. This is not, for example, a case where BATAS seeks a transfer to Victoria in anticipation that the evidence in the DDT proceedings will be taken as evidence in the Slater & Gordon proceedings and vice versa. There is no pertinent connection that raises the interests of justice in any tangible context. The contention by BATAS that it is in the interests of comity in the administration of justice in New South Wales and Victoria that the DDT proceedings be heard in a Victorian forum is to my observation without substance.

50 Thirdly, the suggestion that there is a relevant connection with Victoria that arises out of an allegation that Mr Laurie consumed BATAS products at some time in that state is not a matter that promotes the present application. The parties provided me with a document described as Mr Laurie's smoking chronology. He began to smoke at the age of six and was smoking 15 cigarettes a day by 1958. BATAS contends that the early geographical link is important but does not support that contention with a substantive argument. For example, it is not suggested that in the DDT proceedings there will be witnesses from newsagents or tobacconists called on competing evidence about whether or not Mr Laurie smoked at all in that state as a child or ever, or that the brands of cigarettes that he smoked were manufactured by BATAS. The fact that Mr Laurie may have done most of his Australian smoking in Victoria, including what is called his "formative smoking", is a matter of no apparent substantive or procedural consequence. It is superficially relevant but no more. Once again there appears to me to be no legal or factual connection with Victoria of any significance that promotes that state in the interests of justice as the appropriate forum. It does not on any view appear to me to be "the natural forum for the resolution" of any important issue that arises in the DDT proceedings. It is not strictly accurate to suggest that "it was towards Victoria that the allegedly negligent conduct of BATAS was directed".

51 In contrast, the importance both of the role played and yet to be played in the resolution of the DDT proceedings by Curtis J is patent. The agreement among the parties that he should be given the power to deal with observations made by him in a particular way was predicated upon his continuing to hear the proceedings to finality. It is in the interests of justice that that agreement not lightly be frustrated. BATAS responds by saying that the electronic record of the proceedings in Texas means that any successor to his Honour will be in exactly the same (or what amounts to the same) position, and that there is no evidence or necessary inference that his Honour would use his observations in a manner that is ultimately favourable or beneficial to Ms Laurie's case.

52 The first proposition is not one to which I would be prepared to give weight. The recording of the proceedings is limited to a view of Mr Laurie and does not record all that was going on at his bedside. Curtis J saw more than was recorded and the agreement that was reached permits him to use it. Secondly, the fact that BATAS may itself be the beneficiary of his Honour's findings on demeanour and the like, and that Ms Laurie may not, appears to me in the context of an inquiry about whether a transfer of proceedings to another jurisdiction is in the interests of justice, to be an argument for leaving the proceedings to be heard by his Honour rather than the reverse.

53 Furthermore, there is some force in the argument that forensic decisions were made by senior counsel for the Commonwealth about liability issues and the way that he would cross-examine Mr Laurie in the circumstances and that these decisions were made in the light of the agreement among the parties and the expectation that Curtis J would hear the case to finality. BATAS has conceded that there will be no objection taken by them to the use of the recording of Mr Laurie's evidence in any Victorian version of the DDT proceedings. That does not seem to me to cure the potential injustices associated with the making of forensic decisions on behalf of Ms Laurie and the Commonwealth that may turn out to be wrong when circumstances change through no fault of their own. It is not without importance that the present application had not been foreshadowed when the agreement was made or before Mr Laurie's evidence had been completed.

54 Finally, it is apparent that expert and lay evidence will be called on all sides and on all manner of issues in the DDT proceedings from witnesses whose residential and professional addresses are both within and beyond Australia. No submissions were made to me that any one witness or group of witnesses gathered by location or specialty favoured either the transfer of the DDT proceedings to Victoria or their retention in the Tribunal. In the modern electronic era, this must be so in any event. It would only ever amount to a neutral consideration in the absence of some overwhelming or at least persuasive balance in favour of Victoria over New South Wales. No such position obtains in this case.

Conclusion

55 In my opinion, the interests of justice do not favour the transfer of the DDT proceedings to the Supreme Court of Victoria.

Orders

56 The plaintiff's summons should be dismissed. Costs would ordinarily follow that event. I will refrain from making any costs order in case any party wishes to make particular submissions beforehand. I will if required hear any argument on the question of costs at a time convenient to all parties to be arranged in consultation with my Associate.

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LAST UPDATED:
2 March 2009