BHP Billiton Ltd v Schultz

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

BHP BILLITON LIMITED  APPELLANT

AND

TREVOR JOHN SCHULTZ & ORS  RESPONDENTS

BHP Billiton Limited v Schultz

[2004] HCA 61

7 December 2004
S108/2003

ORDER

1.  Appeal allowed.

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

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

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

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

On appeal from the Supreme Court of New South Wales

Representation:

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

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

No appearance for the second to fifth respondents

Interveners:

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

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

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

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

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

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

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

BHP Billiton Limited v Schultz

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

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

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

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

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

Constitution, ss 73, 74, 75(v), 107, 118.
Service and Execution of Process Act 1992 (Cth), ss 15, 20.
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5, 8, 9, 13.
Dust Diseases Tribunal Act 1989 (NSW), ss 10, 11, 11A, 13.
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA), s 11.
Supreme Court Act 1935 (SA), s 30B.

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

   The proceedings in the Tribunal

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

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

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

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

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

   "(2)     The Tribunal may ...

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

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

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

   The Cross-vesting Act

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

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

9. The current English common law on the subject of forum non conveniens was established by the decision of the House of Lords in Spiliada Maritime Corp v Cansulex Ltd[1].  The current Australian common law is to be found in the decision of this Court in Voth v Manildra Flour Mills Pty Ltd[2].  To the extent to which they differ, the difference can be traced to a view about the nature of the power to stay proceedings.

   [1][1987] AC 460.

   [2](1990) 171 CLR 538.

10. The earlier English view, overturned later by the House of Lords, was expressed by Scott LJ in St Pierre v South American Stores (Gath & Chaves) Ltd[3]:  "A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English Court if it is otherwise properly brought.  The right of access to the King's Court must not be lightly refused."  That approach, which stressed the duty of a court to exercise a jurisdiction that had been regularly invoked, was abandoned in England.  In Spiliada[4], Lord Goff of Chieveley said that a stay would be granted on the ground of forum non conveniens "where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interests of all the parties and the ends of justice."

    [3][1936] 1 KB 382 at 398.

    [4][1987] AC 460 at 476.

11. When Spiliada was first considered by this Court, in Oceanic Sun Line Special Shipping Company Inc v Fay[5], some members of the Court expressed concern about the "duty of an Australian court to exercise its jurisdiction".[6]   Deane J said:  "It is a basic tenet of our jurisprudence that, where jurisdiction exists, access to the courts is a right.  It is not a privilege which can be withdrawn otherwise than in clearly defined circumstances."[7]  Later, in Voth[8], this Court settled upon the "clearly inappropriate forum" test as the basis of granting a stay of proceedings.  The reason for adopting a test somewhat stricter than the English test emerges from the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ in Voth, which referred back to what Deane J had said in Oceanic, and stated that "[t]he selected forum's conclusion that it is a clearly inappropriate forum is a persuasive justification for the court refraining from exercising its jurisdiction."[9]  This emphasis upon the need for justification of a judicial refusal to exercise a jurisdiction that has been regularly invoked underlay the selection of the "clearly inappropriate forum" test, in contrast to the modern English test.  It has overtones of what Scott LJ said in St Pierre about the right of access to a court being something that is not lightly refused.

    [5](1988) 165 CLR 197.

    [6](1988) 165 CLR 197 at 238 per Brennan J.

    [7](1988) 165 CLR 197 at 252.

    [8](1990) 171 CLR 538.

    [9](1990) 171 CLR 538 at 559.

12. The national scheme of legislation, of which the Cross-vesting Act is a part, was intended to operate, and to be applied, in a different juridical context. This was clearly stated in the first case to come before the Court of Appeal of New South Wales under the Cross-vesting Act, Bankinvest AG v Seabrook[10].  It has been recognised by the Court of Appeal in later cases in which jurisdiction of one kind or the other has been invoked[11].

    [10](1988) 14 NSWLR 711.

    [11]Compare, for example, Goliath Portland Cement v Bengtell (1994) 33 NSWLR 414 with James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357.

13. In Bankinvest[12], Street CJ said:

    "The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another.  In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice ...  It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute."

    [12](1988) 14 NSWLR 711 at 713-714.

14. In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.

15. The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff's lawyers have their offices in a particular locality.  It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various.  To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another.  The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered.  Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration.  The justice referred to in s 5 is not disembodied, or divorced from practical reality.  If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice.  Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff's early death.  The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.

16. On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other.  The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant.  The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court.  In such a case, justice may not dictate a preference for the interests of either party.

17. As was pointed out in John Pfeiffer Pty Ltd v Rogerson[13], the ordinary basis of jurisdiction of common law courts in personal actions is the presence of the defendant within the court's territory, and the defendant's resulting amenability to the court's process.  In most cases, the jurisdiction of an Australian court, in the sense of authority to decide, depends upon the location of the defendant, rather than that of the plaintiff.  Suing a large corporation in the place where it has its headquarters would not ordinarily be regarded as "forum-shopping", although the location of the headquarters would not necessarily be decisive as to which was the most appropriate forum.  John Pfeiffer Pty Ltd v Rogerson involved an action brought in the Supreme Court of the Australian Capital Territory, against a company which had its principal place of business in the Territory, for damages for personal injury arising out of a work-related accident in New South Wales.  No one suggested that the Australian Capital Territory was an inappropriate forum.  The decision of this Court established that the law governing the quantum of damages, which was treated as a matter of substance, was the lex loci delicti, the law of New South Wales.

    [13](2000) 203 CLR 503 at 517 [13], referring to Gosper v Sawyer (1985) 160 CLR 548 at 564-565.

18. There is nothing unusual, either in the State or the federal judicature, about actions between residents of different Australian law areas.  Federal diversity jurisdiction is an obvious example.  Actions in New South Wales courts are commonly brought by residents of other States, especially when the residence or principal place of business of the defendant is New South Wales.  Reference is sometimes made to one forum or another being the "natural forum".  Such a description is usually based upon a consideration of "connecting factors", described by Lord Goff in Spiliada[14] as including matters of convenience and expense, such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction.  Lord Templeman described such factors as "legion", and said that it was difficult to find clear guidance as to how they are to be weighed in a particular case[15].  Thus, New South Wales might well be the "natural forum" for an action for damages brought by a passenger in a motor vehicle against the driver if they were both residents of New South Wales, even though the injury resulted from a collision that occurred on the other side of the Queensland or Victorian border.

    [14][1987] AC 460 at 478.

    [15][1987] AC 460 at 465.

19. In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum.  In other cases, there might be significant connecting factors with each of two different forums.  Some of the factors might cancel each other out.  If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction.  Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.

20. The case of Spiliada, decided as it was in a different context, provides an example of the difficulty that might attend an identification of a "natural" forum for litigation.  It involved an action by shipowners against shippers for damages resulting from the condition of cargo when loaded, which caused corrosion to the vessel.  The cargo was loaded in Canada, for transportation to India.  The shipowners were Liberian.  Their management was in Greece, although some part of the management took place in England.  The shippers carried on business in Canada.  Process was served in Canada.  The contract of carriage was governed by English law, a factor which the House of Lords said might be of great importance in some cases and of little importance in others[16].  The contention that Canada was a more appropriate forum than England was rejected.  A decisive consideration was said to be the experience of the English trial judge, the trial lawyers, and the experts, gained in dealing with earlier complex litigation arising out of the same events.  That experience was regarded as crucial even though "the convenience of the parties and the witnesses probably tilted the scales towards British Columbia".[17]  Lord Templeman regarded it as significant that the insurers of both the parties to the litigation were English[18].  That may be a practical reason why a high proportion of commercial litigation in London involves foreign parties.  The conclusion of the House of Lords, that England was no less appropriate a forum than Canada, illustrates the wide range of factors that might govern appropriateness.

    [16][1987] AC 460 at 481.

    [17][1987] AC 460 at 484-485.

    [18][1987] AC 460 at 465.

21. There will often be overlapping, but there is no necessary coincidence, between factors which connect litigation to a forum, and factors which motivate one party to prefer, and another party to resist, litigating in that forum. In the context of the Cross-vesting Act, the treatment by the Court of Appeal of New South Wales, in James Hardie & Coy Pty Ltd v Barry[19], of the special procedural powers of the Tribunal is illuminating. The Court of Appeal pointed out that these were not merely forensic advantages to one party that represented a corresponding disadvantage to the other party, but were factors relevant to a decision under s 5 because they have the capacity to assist both plaintiffs and defendants in the efficient and economical resolution of disputes, and therefore serve the public interest. It will be necessary to return to this matter. Their Honours were not referring to s 11A of the Tribunal Act, but to the Tribunal's powers to use evidence and experience in past cases.

    [19](2000) 50 NSWLR 357.

    The reasoning of the primary judge

22. The reasoning of Sully J in the present case must be read together with his reasons in an earlier case of BHP Co Ltd v Zunic[20], which he imported by reference. Sully J acknowledged the difference between an application for a stay of proceedings on forum non conveniens grounds and a transfer application under s 5 of the Cross-vesting Act. In Zunic, he referred to Bankinvest AG v Seabrook[21] and James Hardie & Coy Pty Ltd v Barry[22] as the principal authorities for him to follow.  He was correct to do so.  In Zunic, he described the ultimate question as being:  which is the more appropriate forum, upon a fair balancing of all the factors defining the relevant "interests of justice".[23]  No one suggests that was erroneous.  In both Zunic and the present case, he listed a series of factors relevant to the interests of justice, and explained how he took them into account.  Most of those factors are uncontroversial.

    [20](2001) 22 NSWCCR 92.

    [21](1988) 14 NSWLR 711.

    [22](2000) 50 NSWLR 357.

    [23](2001) 22 NSWCCR 92 at 103.

23. There were differences between Zunic and the present case.  In particular, the plaintiff in Zunic was an elderly man with a short life expectancy. The position of the first respondent is somewhat different. In the present case, Sully J placed particular stress on the Tribunal's powers under s 11A of the Tribunal Act. He referred to a medical prognosis of a possible future deterioration in the first respondent's condition. The prognosis was uncertain. He said that the first respondent's case was "very different" from that of Mr Zunic in that it did not require an expedited hearing. He said, however, that it was "important ... to keep open to Mr Schultz the very unusual advantages that are conferred by s 11A of the Tribunal Act." This observation was made against the background of a statement of principle, expressed in Zunic, and incorporated by reference in the present case, that a plaintiff's own choice of forum "ought not lightly to be overridden".

24. This, on the appellant's submission, is where the primary judge fell into error. Notwithstanding his general reference to a fair balancing of all the factors defining the relevant interests of justice, the exercise was weighted in favour of the plaintiff in two ways that worked in combination: first, the plaintiff's choice of forum was "not lightly to be overridden"; secondly, the "unusual advantages" conferred on a plaintiff by s 11A were to be kept open.

25. As to the first of those considerations, it is, as the appellant submits, redolent of the Australian forum non conveniens approach, which begins from the premise that a court whose jurisdiction has been regularly invoked needs to justify a refusal to exercise that jurisdiction.  For the reasons explained earlier, and developed at some length in Bankinvest, that is not the starting point for a consideration of a transfer application under the Cross-vesting Act, where a court is simply applying a statute without any kind of presumption as to where the balance of the interests of justice might come down. The idea that a plaintiff's choice is not lightly to be overridden echoes the statement of Scott LJ in St Pierre that a right of access to a court must not be lightly refused. That idea is still influential in the Australian approach to forum non conveniens, but it is out of place in a decision about s 5 of the Cross-vesting Act.

26. The second, and closely related, consideration gives rise to a number of difficulties. Sully J accepted that the substantive law governing the action, whether it was dealt with in the Tribunal or in the Supreme Court of South Australia, would be the law of South Australia, not the law of New South Wales. The law of South Australia concerning the assessment of damages in actions for personal injury is partly common law and partly statute. The statute law includes s 30B of the Supreme Court Act 1935 (SA), which is set out in the reasons of Callinan J. That section empowers the Supreme Court to make interim awards of damages. Sully J was not referred to it. There was debate in this Court as to whether the two statutory provisions, s 11A of the Tribunal Act, and s 30B of the South Australian Supreme Court Act, are substantive or procedural. They are significantly different, although both modify the common law, and could have an important effect on the rights of a plaintiff or a defendant. The assumption by Sully J that, if the action proceeded in the Tribunal, the assessment of damages would be governed by s 11A was challenged. It is unnecessary to resolve that question because, even if the assumption were correct, there is no warrant for concluding that the interests of justice dictate that the first respondent should be given, as against the appellant, the benefit of s 11A, or that s 11A of the Tribunal Act should be regarded as a more just dispensation than s 30B of the South Australian Supreme Court Act. They are different approaches to a similar problem by two legislatures within the Australian federation. No doubt the existence of s 11A enables the first respondent to rebut any charge that he is "forum-shopping". Let it be accepted that the first respondent has, or at least believes he has, a valid reason for preferring to commence proceedings in the Tribunal. His good faith is not in question. The question is where the interests of justice lie. If, in a particular respect, the first respondent's assumed advantage and the appellant's assumed disadvantage are commensurate, the one simply being the converse of the other, then that does not advance the matter. The scales are inappropriately weighted in favour of a plaintiff if a possibility of what might ultimately turn out to be a higher total award of damages is treated as a consideration of justice which argues against transfer and if, in addition, the plaintiff's choice of venue is treated as a matter not lightly to be overridden. Although Sully J was not given the opportunity to consider how s 30B might operate in this case, the problem would be compounded if a judge were to become involved in comparing the respective merits of New South Wales and South Australian legislation. From whose point of view would those merits be judged? How could a judge form a preference between the public policy reflected in an Act of the Parliament of New South Wales and the public policy reflected in an Act of the Parliament of South Australia? If it came to that point, the appropriate course would be for the judge to draw back, and to consider the interests of justice by reference to more neutral factors.

27. As we have already indicated, we do not suggest that the interests of justice properly to be taken into account will be unrelated to the interests of one party or another.  We do not doubt that, in the case of Zunic, it was entirely appropriate for Sully J to take into account the plaintiff's short life expectancy, and the prospect of expedition in the Tribunal.  There are cases in which justice may dictate that an interest of one party be given weight.  Although in a different context, Lord Goff's discussion in Spiliada[24] of the "legitimate personal or juridical advantage" shows the kinds of consideration that might sometimes be relevant to a judgment as to the appropriateness of a forum. Yet, in the present case, the combination of the importance that was attached to the first respondent's choice of forum, and the treatment of s 11A as a factor relevant to the interests of justice, involved error in the application of s 5 of the Cross-vesting Act.

    [24][1987] AC 460 at 482-484.

28. There are two further matters that should be mentioned.  For the reasons given by the Court of Appeal in James Hardie & Coy Pty Ltd v Barry, Sully J was right to attach importance to the procedural and evidentiary advantages offered to all parties in the Tribunal.  In assessing the weight to be given to those advantages, however, his Honour may have overlooked the fact that all defendants undertook to give Mr Schultz the benefit of those provisions if the proceedings were transferred.  Those undertakings are recorded in the evidence, but they were not mentioned in his Honour's reasons.  Additionally, his Honour was entitled to have regard to the Tribunal's specialisation and expertise.  If there were any doubt about the relevance of that to the appropriateness of the Tribunal as a forum, then it is only necessary to pay attention to the facts of Spiliada, the actual decision in that case, and the consideration that was regarded there as determinative.

    Conclusion and Orders

29. The decision of the primary judge was affected by material error.  That being so, it is unnecessary, and therefore inappropriate, to decide the constitutional issues argued in this Court.  One of those issues related to the capacity of the Tribunal to sit in South Australia.  We agree with what Gummow J has said on that subject.

30. The first respondent, by Notice of Contention, invited this Court to hold that, even if the decision of Sully J were affected by error, it should nevertheless be upheld because the Tribunal is, on any possible view, a more appropriate forum than the Supreme Court of South Australia.  That ambitious submission should be rejected.  Alternatively, the first respondent submitted that the matter should be remitted to the Supreme Court of New South Wales for further consideration.  Unless the case was completely clear, or there were other compelling reasons to take a different course, that would be the usual outcome.  On this alternative, the first respondent did not invite this Court, out of consideration for his age and illness, to decide the s 5 issue itself.  In fact, in support of a submission that the matter should be remitted, the first respondent attempted to adduce further evidence to show that he is now a resident of New South Wales.  That evidence was challenged, both as to form and substance, and its tender was rejected.

31. It is far from clear that the interests of justice require that the proceedings be transferred to South Australia.  In that respect, regard may be had to the specialist nature of the Tribunal, and the procedural facilities peculiar to it.  Regard should also be had, not merely to the issues that may arise between the first respondent and the appellant, but also to the issues between the first respondent and the other respondents, and the cross-claims.  Those questions received little attention in argument in this Court.  The matter should be remitted.

32. We would allow the appeal on the terms as to costs pursuant to which special leave was granted and set aside the orders of the Supreme Court of New South Wales of 30 October 2002.  The matter should be remitted to that Court for further consideration in accordance with the reasons of this Court.

33. GUMMOW J. By summons in the Supreme Court of New South Wales, BHP Billiton Limited ("BHP") sought an order pursuant to s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("the Cross-vesting Act"). The order sought was that a proceeding pending in the Dust Diseases Tribunal of New South Wales ("the Tribunal") between Mr Schultz as plaintiff and BHP and others as defendants be removed into the Common Law Division of the Supreme Court. BHP further sought a consequential order under sub‑par (iii) of s 5(2)(b) of the Cross‑vesting Act; this was that the proceedings when removed into the Supreme Court thereupon be transferred to the Supreme Court of South Australia.

34. By order entered 30 October 2002, a judge of the Supreme Court (Sully J) dismissed the summons.  On 22 October his Honour had delivered reasons in support of that order[25].  By special leave BHP appeals directly to this Court.  The appeal joins Mr Schultz as first respondent.  The second, third, fourth and fifth respondents were, with BHP, defendants in the proceeding in the Tribunal.  They entered submitting appearances in the Supreme Court and have taken no active part in the appeal.

    [25]BHP Billiton Limited v Schultz [2002] NSWSC 981.

35. It was a condition of the grant of special leave by this Court that BHP pay Mr Schultz's costs of the appeal in any event and not seek to disturb costs orders made in the Supreme Court.

    The Tribunal

36. The Tribunal is established as a court of record by s 4 of the Dust Diseases Tribunal Act 1989 (NSW) ("the DDT Act"). The Tribunal has, wherever sitting, "jurisdiction throughout New South Wales" (s 10(3)). In the exercise of their functions, members of the Tribunal have the same protection and immunity as a judge of the Supreme Court of New South Wales (s 8). Witnesses have the same protection and are subject to the same liabilities as witnesses before the Supreme Court (s 20(4)). The Tribunal has the contempt powers of the Supreme Court (s 26).

37. Sections 10(1) and 11 confer upon the Tribunal what is called "exclusive jurisdiction" to hear and determine proceedings under ss 11 and 11A. Section 11 deals with what might shortly be identified as claims for damages for those suffering from a dust‑related condition which is attributable or partly attributable to a breach of duty, whether imposed under the common law or by statute. Reference is made hereafter to s 11A.

38. In Goliath Portland Cement Co Ltd v Bengtell[26], Gleeson CJ said of the DDT Act:

    "The scheme of the legislation is to create a specialist tribunal to deal with a certain type of claim for damages, to constitute that tribunal a court of record, and to give it the exclusive jurisdiction to hear and determine claims of the specified kind.  Such proceedings would otherwise be heard in the Supreme Court or the District Court.  In that respect, the Tribunal's jurisdiction replaces that formerly exercised by those courts."

    His Honour added[27]:

    "There is nothing in the [DDT] Act which expressly limits the Tribunal's jurisdiction to claims arising out of events that occurred, or causes of action that arose, in New South Wales.  The jurisdiction of the Supreme Court is certainly not so limited, and it is not easy to understand why parliament would have intended such a limited transfer of jurisdiction, leaving the residue in this Court."

    [26](1994) 33 NSWLR 414 at 417.

    [27](1994) 33 NSWLR 414 at 417.

    The facts

39. Mr Schultz was born in 1941 in Whyalla in South Australia and was living there at all relevant times. He is a long‑term heavy smoker. By his statement of claim in the Tribunal, Mr Schultz pleads that between 1957 and 1964, and again between 1968 and 1977, he was employed by BHP at its premises at Whyalla and that, as a result of his exposure there to asbestos, he suffered asbestos-related personal injury. In addition to claiming damages for that injury, he makes a claim for prospective loss and damage under s 11A of the DDT Act.

40. Mr Schultz's action against BHP is for negligence, for breach of an implied term in his contract of employment, and for breach of statutory duty.  The statutory duty is said to have been imposed upon BHP by South Australian legislation as it stood at the relevant times.  Specifically, Mr Schultz relies on the provisions of the Industrial Code 1920 (SA), the Industrial Code 1967 (SA), the Industrial Safety Health and Welfare Act 1972 (SA) and on certain regulations made thereunder.  No law was pleaded as the proper law of the contract[28].  However, in his consideration of the matter, Sully J directed his attention to the tort claim and to the law in force in South Australia as the lex loci delicti and that course was not criticised in this Court.

    [28]See Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 517‑518 [68].

41. This is not a case in which any difficulty arises in locating the place of the tort, a prospect mentioned in John Pfeiffer Pty Ltd v Rogerson[29].  South Australia is the only candidate.  Nor, as the above facts show, was it entirely fortuitous that the tort occurred in that State.  In its submissions to the primary judge, BHP indicated that, subject to proof by Mr Schultz of his exposure and his diagnosis, liability will not be an issue and the trial will be limited to the assessment of damages.

    [29](2000) 203 CLR 503 at 538‑539 [81].

42. It should be observed that, in Goliath, the New South Wales Court of Appeal was dealing with an appeal against the dismissal by the Tribunal of an application, one of the grounds of which had been that it should decline to exercise its jurisdiction because, within the sense of the term given by Voth v Manildra Flour Mills Pty Ltd[30], the Tribunal was "a clearly inappropriate forum"[31]. That is not the nature of the proceeding before the primary judge or of the present appeal, which turns principally on the construction and application of provisions of the Cross-vesting Act. The distinction between an application for a stay on the ground of forum non conveniens and a transfer application under the legislation is developed and explained in the reasons of Gleeson CJ, McHugh and Heydon JJ.  It also will be necessary to make further reference to the distinction later in these reasons.

    [30](1990) 171 CLR 538.

    [31]See (1994) 33 NSWLR 414 at 416, 418‑420, 431‑439.

    The Cross-vesting Act

43. This New South Wales statute, together with legislation passed in 1987 by the Commonwealth and each of the other States is misdescribed in the short title.  This is because the legislation was designed to establish the two systems described in the preamble to the statutes.  The first was a system of cross‑vesting of jurisdiction between federal, State and Territory courts, without detracting from the existing jurisdiction of any court (pars (a) and (b) of the preamble).  The second (par (c) of the preamble) was a system to apply where a proceeding is instituted in a court "that is not the appropriate court" and to require transfer "to the appropriate court".  The present dispute concerns the operation of the second system.

44. The Cross-vesting Act does not define the sense or senses in which it employs the term "jurisdiction"[32].  In particular, there is no distinction expressly drawn between the uses of "jurisdiction" to identify the amenability of the defendant to the court's process, and to identify the subject-matter of actions entertained by the court.  As is illustrated by Flaherty v Girgis[33], the legislative derivation of the one may be quite distinct from that of the other.

    [32]Lipohar v The Queen (1999) 200 CLR 485 at 516‑517 [78]-[79].

    [33](1987) 162 CLR 574 at 598, 609.

45. However, from a perusal of the statute it appears that, when dealing with the first system (of cross-vesting jurisdiction), "jurisdiction" is used in the latter sense. This is indicated by the reservation respecting "special federal matters" (s 6), by the provision made in s 11 for the exercise of cross-vested jurisdiction, and by (A) and (B) of the transfer provision of sub‑par (b)(ii) of s 5(2), which is set out later in these reasons[34].  The cross-vesting provisions assume service of the proceeding in question, whether, as in this case from the existence of a place of business conducted by BHP in New South Wales (which may be assumed), from the personal presence of a transient defendant, or from the operation of Pt 2 (ss 13‑27) of the Service and Execution of Process Act 1992 (Cth) ("the Process Act"), or of State "long‑arm" jurisdiction[35].

    [34]See also the like provisions in s 5(1), s 5(3) and s 5(4).

    [35]Section 8(4) of the Process Act excludes the operation of such State laws in certain respects.

46. However, as noted earlier, this appeal concerns the second system, that dealing with transfer of proceedings.  It should be emphasised that here the subject-matter of the proceeding which is transferred to the "appropriate court" may have been within the competence of the transferor court in which it was instituted without any supplementation of its jurisdiction by the cross-vesting system.  The litigation of an "interstate tort" is within the jurisdiction derived by the Tribunal from the State Supreme Court.  Goliath so decided.

47. In Re Wakim; Ex parte McNally[36], this Court held that s 9(2) of the federal cross-vesting statute[37] was invalid; this provision had authorised the Federal Court to exercise jurisdiction (whether original or appellate) conferred on it by State law relating to cross‑vesting of jurisdiction.  However, that portion of the legislative scheme which remains in operation includes the provisions for the transfer of pending proceedings between the Supreme Courts of the States.  No question arises respecting the cross-vesting of subject-matter jurisdiction between State courts.

    [36](1999) 198 CLR 511.

    [37]Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

    The transfer application

48. The present litigation was instituted in the Tribunal; hence the first step in the application to the primary judge, that based upon s 8 of the Cross‑vesting Act. Where a proceeding is pending in a court of New South Wales other than the Supreme Court, or in a tribunal established by or under a law of New South Wales, and "it appears to the Supreme Court" that an order removing the proceeding into the Supreme Court should be made so that consideration can be given to its transfer to another court, the Supreme Court "may" make a removal order (s 8(1)); the Cross-vesting Act then applies as if the proceeding were pending in the Supreme Court (s 8(2)).

49. The next step in BHP's application to the Supreme Court was to seek an order under sub‑par (iii) of s 5(2)(b). This required the Supreme Court to transfer the proceeding to the Supreme Court of South Australia if it appeared to the Supreme Court that it was in the interests of justice that this be done.

50. In his reasons, Sully J did not emphasise any distinction between the two steps involved in BHP's application to the Supreme Court.  The order for removal appears to have been refused because no consequential order for transfer would be made and any removal thus would be futile.

    The effect of a transfer order

51. Section 9(b) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) ("the SA Cross-vesting Act") provides that the Supreme Court of that State may hear and determine a proceeding transferred to it under a provision of a law of a State "relating to cross-vesting of jurisdiction". The New South Wales statute answers that description.

52. Further, s 11 of the SA Cross-vesting Act may have an application to the proceeding when so transferred. Section 11 would apply if it appeared to the South Australian court that it would, or would be likely to, be "exercising jurisdiction conferred" by that statute or any other law "relating to cross-vesting of jurisdiction" (emphasis added).  There is a question whether, in the circumstances of this case, where subject-matter jurisdiction already subsisted in the South Australian transferee court and BHP was amenable to its process by, at least, the use of the Process Act, the court, after the transfer, would have been exercising jurisdiction "conferred" by any cross-vesting law.

53. It is unnecessary to resolve this question of construction of the cross-vesting legislation. If s 11 of the SA Cross-vesting Act did apply, par (a) thereof would require the application of the law of South Australia as the lex fori but that is also the lex loci delicti.  Paragraph (b) is an exception to par (a) but only applies to cases, unlike the action here, which arise under the written law of another State or Territory.  Paragraph (c) is another exception to par (a), and it states:

    "the rules of evidence and procedure to be applied in dealing with that matter shall be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory".

54. A question could arise as to whether s 11A of the DDT Act is a rule of evidence and procedure within the meaning of par (c), so that the South Australian court could consider it appropriate in the circumstances to apply it to the transferred action. The dichotomy drawn in John Pfeiffer[38] between substance and procedure does not necessarily control the interpretation of par (c). There is no occasion further to consider this question of the applicability of s 11A. As will appear later in these reasons, s 11A favours the interests of Mr Schultz. If not a rule of evidence and procedure, s 11A would not apply; if s 11A does answer that description, then its application would favour Mr Schultz and not provide a reason against the transfer sought by BHP.

    [38](2000) 203 CLR 503 at 542‑544 [97]-[100].

    The appeal to this Court

55. From the decision of the presiding judge refusing BHP's application for removal and then for transfer, no appeal lay to the New South Wales Court of Appeal. Section 13 of the Cross‑vesting Act states that an appeal does not lie from a decision of a court in relation to the transfer or removal of a proceeding under that statute. However, that provision is ineffective to curtail the jurisdiction of this Court, conferred by s 73(ii) of the Constitution. This confers on the High Court jurisdiction, with such exceptions and subject to such regulations as the Parliament of the Commonwealth prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of any State. The grant by this Court of special leave satisfied the exceptions and regulations prescribed by s 35 of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

56. In his written submissions, the Attorney-General for New South Wales, who intervened in this Court, sought to classify s 13 of the New South Wales statute as surrogate federal law by reason of it being picked up by s 79 of the Judiciary Act; s 13 was said thereby to acquire the quality of an exception or regulation prescribed by the Parliament of the Commonwealth within the meaning of s 73 of the Constitution. That submission necessarily presupposed the exercise of federal jurisdiction at the stage of the litigation in the Supreme Court so as to attract the operation of s 79.

57. In the Supreme Court, no point was taken which had the consequence of rendering the proceeding a matter arising under the Constitution or involving its interpretation; constitutional questions first appeared in this Court and appropriate notices then were given under s 78B of the Judiciary Act. Nor was the proceeding in the Supreme Court a matter between residents of different States within the meaning of s 75(iv) of the Constitution, given the corporate character of the defendants[39]. Mr Schultz, the party with the interest in doing so, did not challenge the competency of the appeal to this Court. In these circumstances, it is unnecessary further to consider the submission for New South Wales respecting the operation of s 79 of the Judiciary Act as achieving for s 13 of the Cross-vesting Act the character of an exception or regulation within the meaning of s 73 of the Constitution.

    [39]British American Tobacco Australia Ltd v Western Australia (2003) 77 ALJR 1566 at 1574 [37]; 200 ALR 403 at 413.

58. It appeared to be accepted in the submissions of the parties that no distinct questions arose respecting the removal provision of s 8 of the Cross-vesting Act. The assumption was that if no case for transfer under s 5(2)(b)(iii) were made out, no removal order should be made, and if a case for transfer was established, then a removal order would be made.

    Section 5(2) of the Cross-vesting Act

59. Accordingly, the primary issue to be considered concerns the construction of s 5(2) of the Cross-vesting Act. Sub‑paragraph (iii) of s 5(2)(b) opens with the words "it is otherwise in the interests of justice" (emphasis added). This directs attention to sub‑pars (i) and (ii) of s 5(2)(b).

60. Sub‑paragraph (i) postulates the circumstance that the relationship between the relevant proceeding and another pending proceeding in the transferee court renders it more appropriate that both proceedings be determined by that second court.  Sub‑paragraph (ii) poses the issue whether it is "more appropriate" that the pending proceeding in New South Wales be determined by the other Supreme Court having regard to three matters stated as follows:

    "(A)whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;

    (B)the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

    (C)the interests of justice".

61. These criteria stipulated in par (b)(ii) of s 5(2) attach significance to the existence of jurisdiction cross-vested in the transferor court.

62. If "it appears" to the Supreme Court that, by reason of the criteria stipulated in sub‑par (i) or (ii) of par (b), "it is more appropriate" that the relevant proceeding be determined in the other designated Supreme Court, then the Supreme Court "shall transfer the relevant proceeding".  The requirement to order transfer thus is imperative once the identified criteria "appear" to the Supreme Court[40].  No question of discretion arises[41]. 

    [40]cf Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 299‑300 [33]; Samad v District Court of New South Wales (2002) 209 CLR 140 at 152 [32], 160‑161 [66]-[67].

    [41]cf Norbis v Norbis (1986) 161 CLR 513 at 518, 533‑534, 537; Wong v The Queen (2001) 207 CLR 584 at 613 [79].

63. This appeal concerns in particular the application of sub‑par (iii) of s 5(2)(b). Unlike sub‑pars (i) and (ii), there is no requirement of a pending proceeding in the transferee court or the presence of cross-vested jurisdiction in the transferor court. Sub‑paragraph (iii) is more broadly expressed. However, as with the other sub‑paragraphs, the issue on an appeal to this Court is not accurately identified as whether the primary judge erred in the exercise of a discretion. If it "appears" to the Supreme Court to be "otherwise in the interests of justice" that there be a transfer, then the Supreme Court "shall transfer the relevant proceeding". Again, no question of discretion arises. The word "shall" imposes a duty which must be performed[42].  Rather, the issue for this Court is whether his Honour erred in the content he gave in this case to the phrase "otherwise in the interests of justice".

    [42]Interpretation Act 1987 (NSW), s 9(2).

    The reasons of the primary judge

64. In his reasons, Sully J followed a path which he described as consistent with that which he had taken in Broken Hill Proprietary Company Ltd v Zunic[43]. His Honour there had dealt with applications by BHP under the Cross-vesting Act of the same nature as those now before him. In Zunic, his Honour had identified nine considerations to be taken into account in striking "the final balance" which his Honour saw as required by the expression "the interests of justice" in sub‑par (iii) of s 5(2)(b) of the Cross-vesting Act[44].  The first was the personal circumstances of the plaintiff in the Tribunal; the second, the regular invocation of the jurisdiction of the Tribunal by the plaintiff; the third, any delay by the party seeking removal and transfer; the fourth, the particular expertise and facility of the Tribunal in dealing with dust disease claims; the fifth, the locus delicti of the torts pleaded; the sixth, the comparative availability in the Tribunal and in the proposed transferee court of an appropriately expedited hearing; the seventh, comparative cost considerations; the eighth, comparative evidentiary considerations; and the ninth, "The matter of forum shopping"[45].

    [43](2001) 22 NSWCCR 92.

    [44](2001) 22 NSWCCR 92 at 97.

    [45](2001) 22 NSWCCR 92 at 98-103.

65. It will be observed that these considerations do not include the respective provisions made for appeals against decisions at trial by the Tribunal and by the proposed transferee court. Section 32(1) of the DDT Act limits the appeal as of right (to the Supreme Court[46]) to points of law and to questions as to the admission or rejection of evidence. Section 32(4) confers an appeal by leave in limited cases. The right of appeal to the Full Court conferred by s 50 of the Supreme Court Act 1935 (SA) ("the SASC Act") is more broadly expressed.

    [46]Appeals are assigned to the Court of Appeal (Supreme Court Act 1970 (NSW), s 48).

66. In Zunic, Sully J considered the actions of the applicants in making an application under the Cross-vesting Act to be a form of "forensic approbating and reprobating" which told against granting the application[47]. By contrast, in this case, Sully J held there had been nothing dilatory in the conduct of BHP in seeking orders under the Cross-vesting Act[48].

    [47](2001) 22 NSWCCR 92 at 99.

    [48][2002] NSWSC 981 at [23].

67. In Zunic, Sully J held that the identification of South Australia as the locus delicti had "obvious weight" but was not of itself determinative of where the interests of justice lay[49].  His Honour repeated this observation in this case and relied on his analysis from the earlier case[50].

    [49](2001) 22 NSWCCR 92 at 100-101.

    [50][2002] NSWSC 981 at [26].

68. Evidence of comparative cost considerations between a trial in the Tribunal and in the Supreme Court of South Australia did not indicate a relevant cost difference which was "so grossly disproportionate" as to give significant weight in favour of BHP's application[51].  The medical evidence that Mr Schultz's lung function already had a 30 per cent deficit and his uncertain prognosis made it important to ensure that any just claim of Mr Schultz be dealt with as simply, speedily and efficiently as the circumstances would permit.  If Mr Schultz were to develop a catastrophic condition, something "at least on the cards in a real sense", then the Tribunal would be able to move with a degree of expedition that "could not fairly be expected" of the Supreme Court of South Australia[52].

    [51][2002] NSWSC 981 at [31].

    [52][2002] NSWSC 981 at [28].

    "Regular invocation of jurisdiction"

69. It is convenient at this stage to consider further those considerations dealing with "regular invocation" by Mr Schultz of the jurisdiction of the Tribunal and the absence of forum shopping in any offensive form.  The primary judge appears to have treated these matters as giving to Mr Schultz "legitimate interests" in the "unusual advantages" conferred on him as a plaintiff in the Tribunal, which it was for BHP to satisfy the primary judge should be displaced and a transfer order made[53]. However, that was not an approach to BHP's application which the Cross-vesting Act supported. That statute does not ask, as would be consistent with the general law principles pronounced in Voth and applied in Goliath, whether the Tribunal is "a clearly inappropriate forum".  The stance taken by the statute is quite different.

    [53][2002] NSWSC 981 at [33]-[34].

70. The preamble to the Cross-vesting Act states in par (c) that it is desirable "if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court". In the Second Reading Speech on the Bill for what became the Cross-vesting Act, the Attorney-General for New South Wales said[54]:

    "Under the scheme, if proceedings are commenced in an inappropriate court, or if related proceedings are begun in separate courts, the courts will have power to transfer proceedings to the most appropriate court, having regard to the nature of the dispute, the laws to be applied and the interests of justice."

    The Attorney-General went on[55] to describe cl 5 as operating "to ensure that proceedings are always dealt with by the most appropriate court."

    [54]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 29 April 1987 at 10750.

    [55]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 29 April 1987 at 10751.

71. That legislative policy is implemented by s 5(7). This provides that an order for transfer may be made not only on application by a party to the proceeding, but by the court, either of its own motion or on the application of the Attorney-General of the Commonwealth or of a State. Section 5(7) indicates that it is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof[56].  However, it would be inaccurate to describe the decision upon a transfer application as administrative, by some analogy to the orders made with no lis inter partes in the administration of assets or of trusts by courts of equity[57].

    [56]Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 727.

    [57]See R v Davison (1954) 90 CLR 353 at 368; cf Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 715, 717.

72. Section 5 assumes the regular invocation of jurisdiction, both as to amenability of the defendant to process and as to subject-matter.  Therefore, regular invocation of jurisdiction itself does not favour the disposition of a transfer application by refusing it on the basis that to allow it could not be in the interests of justice.  Section 5 does not manifest a legislative policy in favour of any species of "forum shopping", or of what in the United States has been called a "venue privilege" of plaintiffs, which it is for defendants to displace on a transfer application[58]; the emphasis on the selection of the appropriate court indicates the contrary. The Second Reading Speech and par (c) of the preamble indicate that the State Parliament in enacting the Cross-vesting Act, in particular the provisions of s 5, was concerned to provide a means of ensuring that, by use of the transfer mechanism, proceedings be dealt with by the appropriate court.

    [58]cf Wright and Kane, Law of Federal Courts, 6th ed (2002) at 286; Jumara v State Farm Insurance Company 55 F 3d 873 at 879 (1995).

73. However, in remarks in Zunic[59] which the primary judge adopted in the present case, his Honour took a different, and erroneous, view of the scope of s 5(2). He referred to the phenomenon of claims in respect of South Australian torts being brought by South Australian residents in the Tribunal and to the establishment by the Tribunal in South Australia of a "South Australian circuit". Sully J continued:

    "It cannot be supposed that the Parliament of New South Wales is not well aware of the state of affairs to which attention is thus drawn.  Nor can it be supposed that the Parliament of New South Wales either could not, or would not, intervene by appropriate legislation in order to correct that state of affairs if Parliament were of the opinion that there was good reason, as a matter of public policy, to do so.  And yet Parliament has not intervened.  It seems to me that such considerations at least take some of the pejorative sting out of the term 'forum shopping'."

    [59](2001) 22 NSWCCR 92 at 102‑103.

74. In construing s 5(2) and in particular par (b)(iii), the Attorney-General of the Commonwealth, who intervened, emphasised the interrelation between such provisions and the Process Act. Under Pt 2, Div 1 (ss 13‑21) thereof, civil process issued in one State may be served in another without a requirement to establish a link between the State of issue and the subject-matter of the proceedings or the defendant (s 15(1))[60].  In a proceeding in which the court of issue is a court of a State below the Supreme Court, s 20 of the Process Act provides for orders staying the proceeding.

    [60]The term "State" is so defined as including the Northern Territory and the Australian Capital Territory (ss 5(1), 7(2)).

75. Section 20(3) states:

    "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."

    The matters to be taken into account are then specified but expressly exclude the fact that the proceeding is commenced at the place of issue (s 20(4)).  Where the court of issue is the Supreme Court, this procedure under s 20 is not available; reliance is to be placed upon s 5 in the various cross-vesting statutes of the States.  Section 20(10) of the Process Act so stipulates.

76. It is with this in mind that the significance of the following statement by Professor Nygh appears. Writing in 1995 on sub‑par (iii) of s 5(2)(b), he said[61]:

    "The third category, perhaps the most important, is based on a residual clause that can be invoked by a defendant even though there are no related proceedings and no question of cross-vested jurisdiction.[62]  Although prima facie the court is given a wide discretion as indicated by the words 'otherwise in the interests of justice',[63] some judges have taken the view that a transfer should be ordered only when the forum chosen by the plaintiff is 'clearly inappropriate'.[64]  Others have taken the view that the formula allows the court to choose the more appropriate forum without any specific emphasis in favour of the plaintiff's choice.[65]  Because s 20(4) of the [Process Act] clearly prohibits any bias in favour of the plaintiff's choice, it would be unfortunate if the method of challenging jurisdiction indicated by s 20(3) of that Act were to employ a different test to that used in the cross-vesting legislation.[66]"

    [61]"Choice of Law Rules and Forum Shopping in Australia", (1995) 6 Public Law Review 237 at 243‑244.

    [62]Waterhouse v Australian Broadcasting Corporation (1989) 86 ACTR 1.

    [63][Cross-vesting Act], s 5.

    [64]Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1; Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd [1990] WAR 531.

    [65]Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730 per Rogers AJA, followed in Amor v Macpak Pty Ltd (1989) 95 FLR 10; Sunbanc Australia v Multivest Corporation Ltd (1989) 97 FLR 269; Chase Corporation (Aust) Ltd v City of Melbourne (1989) 97 FLR 258.

    [66]McEntee v Connor (1994) 4 Tas R 18; Dawson v Baker (1994) 120 ACTR 11.

77. The phrase "otherwise in the interests of justice" in sub‑par (iii) of s 5(2)(b) of the Cross-vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff. That being so, error is disclosed in the treatment by the Supreme Court of BHP's application. The consequence is that the appeal to this Court should be allowed, unless this Court supports the primary judge's order on further or alternative grounds to those relied upon by his Honour. No such support appears.

    Section 11A of the DDT Act

78. Upon that inquiry as to the existence of further grounds supporting the order made in the Supreme Court, two matters emphasised by the primary judge assume particular importance. The first matter concerns what his Honour identified as the "very unusual advantages" conferred on Mr Schultz by s 11A of the DDT Act[67].  This section was added to the statute in 1995[68] and states:

    "(1)This section applies to proceedings of the kind referred to in section 11(1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought (the injured person) will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition.

    (2)The Tribunal may, in accordance with the rules:

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

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

    It is apparent from its terms that s 11A is addressed not to New South Wales courts generally, but to the Tribunal specifically. However, in this Court, reference was made also to special provision made by South Australian statute and addressed to the Supreme Court of that State. Section 30B of the SASC Act confers upon that court a power to make interim assessments of damages, by determining the question of liability and adjourning the final assessment thereof.

    [67][2002] NSWSC 981 at [33].

    [68]By the Courts Legislation Amendment Act 1995 (NSW), Sched 4(2).

79. The provisions made in s 11A and s 30B are considered by Callinan J in his reasons and I agree with the analysis there given. This indicates that s 30B may operate more favourably to the interests of BHP and less favourably to those of Mr Schultz than would s 11A were it to be part of the lex causae.

80. It will be necessary to return to the question of the content of the lex causae. However, it should be indicated here that the emphasis placed by the primary judge upon s 11A as militating against the making of a transfer order was erroneous. To fix upon the advantages it conferred upon Mr Schultz, without any consideration of the operation of s 30B upon the interests of both parties, was to give further effect to the false notion of Mr Schultz's "venue privilege", to which reference has been made above.

    The experience and facility of the Tribunal

81. The second matter emphasised by the primary judge appeared in the course of considering the Tribunal's "particular experience and facility in dealing with dust disease claims"[69].  Sully J reiterated his adoption in Zunic[70] of the following passage from the decision of the Tribunal in Hearn v Commonwealth[71]:

    "Subject to the readiness of the parties to litigation, the Tribunal will sit at any time and in any place in Australia to hear the cases of plaintiffs which are properly before it and who are unable to travel to Sydney.  For this reason the Tribunal now regularly sits in Brisbane and regularly sits in Adelaide.  It may be of interest to remark that sittings in Adelaide allocated for the future are slightly more than one week in each month."

    [69][2002] NSWSC 981 at [24].

    [70](2001) 22 NSWCCR 92 at 99‑100.

    [71](2000) 21 NSWCCR 203 at 207‑208.

82. Sully J relied upon these considerations as indicative of the particular experience and facility of the Tribunal in dealing with dust disease claims and, it appears, as responding to the contention of BHP that the appropriate forum was South Australia and this favoured transfer to the Supreme Court of South Australia.

83. BHP submits that the primary judge erred in giving any weight to a consideration that, in the present case, the Tribunal might hear the proceedings or any part thereof outside New South Wales and in South Australia.  Before turning to evaluate that submission and the grounds urged in its support, there should be emphasised what the submission leaves untouched.

84. First, the Evidence on Commission Act 1995 (NSW) ("the Commission Act") contains in Pt 3 (ss 17‑30) detailed provision for State courts, including the Tribunal, to order the taking of evidence elsewhere in Australia before, among others, a judge of the State court in question. Section 29 provides that Pt 3 does not exclude the operation of any other State law providing for the examination of witnesses outside the State. In respect of steps taken in South Australia in pursuance of an order under Pt 3 of the Commission Act, s 67AB of the Evidence Act 1929 (SA) ("the SA Evidence Act") would facilitate the taking of evidence. A court established under the law of a place outside South Australia is a "foreign authority" (s 67AB(3)). Such a foreign authority may "take evidence" and for that purpose "administer an oath or affirmation to any witness" (s 67AB(1)). BHP expressly eschewed any attack upon the validity of these legislative arrangements were they to be utilised by the Tribunal.

85. Secondly, legislation of both States, the Evidence (Audio and Visual Links) Act 1998 (NSW) and Pt 6C (ss 59IA‑59IP) of the SA Evidence Act, contains reciprocal provisions the effect of which would be to permit the Tribunal on the one hand, and the Supreme Court of South Australia on the other, to receive evidence by video link from the other State. In particular, Pt 6C contains detailed provisions for enforcement by the Supreme Court of South Australia of orders made by the recognised out‑of‑State court (s 59IL) and for the privileges, protection and immunity of participants in video‑link proceedings (s 59IM). No criticism was directed to the use by the Tribunal or the Supreme Court of this legislation were they later minded to do so.

86. However, both statutes dealing with audio and visual links also expressly preserve (by s 59IC of the South Australian statute and s 5(1) of the New South Wales statute) the operation of other law providing for the taking of evidence outside the State.

87. Such a law, on its face, is found in s 13 of the DDT Act. The President of the Tribunal fixes the times and places for the holding of proceedings before the Tribunal (s 13(2)). The Tribunal "may adjourn its proceedings to any time or place" (s 13(3)). Then, s 13(7) states:

    "If the President is of the opinion that the balance of cost and convenience in the proceedings so requires, the President may direct that the hearing of the proceedings, or any part of the proceedings, take place outside New South Wales."

88. There appears to be no dispute that it was upon s 13 that reliance was placed for the statement in Hearn[72] which was adopted by Sully J as indicative of the particular facility of the Tribunal.  However, BHP submits that his Honour erred in regarding s 13 as supporting the hearing by the Tribunal in South Australia of all or any part of the present proceeding, were the President later minded so to direct.  The submission was that s 13 was invalid to the extent that it authorised the exercise outside New South Wales of the judicial power of that State by the conduct there by the Tribunal of its proceedings.

    [72](2000) 21 NSWCCR 203 at 207‑208.

    BHP's constitutional submissions

89. On its face, the provisions in s 13 answer the criterion for a sufficient territorial connection with New South Wales that it be at least "remote and general"[73].  Section 13 concerns the manner of exercise of the jurisdiction of a court established to assume part of the subject-matter jurisdiction of the State Supreme Court.  The territorial connection is direct and specific[74].

    [73]Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14.

    [74]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 23 [10], 38 [61].

90. The submission for BHP cannot properly found upon what may have been constraints placed by what might be called Imperial constitutional law upon the exercise by the self‑governing colonies of governmental functions beyond their territorial limits.  The Australian self‑governing colonies became States in 1901 and any competence of the United Kingdom legislature, executive and judiciary in respect of the States ended in 1986[75]. The result is that BHP must found on a proposition that, for reasons drawn from the text and structure of the Constitution, any legislative power of New South Wales which would support s 13 in its full operation has been "withdrawn from the Parliament of the State" as provided in s 107 of the Constitution.

    [75]Sue v Hill (1999) 199 CLR 462.

91. The courts of the States are an essential branch of the governments of the States[76].  In Melbourne Corporation v The Commonwealth, Starke J said[77]:

    "So we may start from the proposition that neither federal nor State governments may destroy the other nor curtail in any substantial manner the exercise of its powers or 'obviously interfere with one another's operations'[78]."

    It is far from clear whether, even if such a doctrine does apply between the States, a determination of the President of the Tribunal under s 13(7) of the DDT Act that all or part of the hearing of the present proceeding take place in South Australia would curtail, in any substantial manner, the exercise of their powers by the courts of that State. Further, it would be necessary in the situation just postulated to consider the impact upon the exercise of the governmental authority of South Australia of the obligation imposed by s 118 of the Constitution to give full faith and credit both to the laws and to the judicial proceedings of the other States, including a proceeding under s 13(7) of the DDT Act.

    [76]Austin v Commonwealth (2003) 215 CLR 185.

    [77](1947) 74 CLR 31 at 74. See also State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 288‑289.

    [78]See Graves v New York; Ex rel O'Keefe 306 US 466 (1939).

92. It also should be noted that no question could arise in the present case respecting the constitutional criterion for the judicial resolution of inconsistency or contrariety between the laws of the several States respecting the same subject-matter[79].  If anything, the law of South Australia, to which reference has been made, would permit the taking of evidence by the Tribunal and the administration of oaths and affirmation by witnesses before the Tribunal.

    [79]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 34 [48], 52‑53 [110], 61 [131].

93. The submissions by BHP were variously expressed in argument. In the end, they must be that, as a consequence of the federal structure which the Constitution establishes, there is withdrawn any competency in one State to legislate for the exercise by its courts, beyond the geographical territory of the State, of their adjudicative functions in the exercise of non‑federal jurisdiction. That would be a large proposition. It would not be made good merely on the ground that the exercise of judicial power can be fully effective only with the availability of coercive powers conferred by the law of the State of origin and exercisable there. The proven utility of the declaratory remedy suggests otherwise.

94. It is inappropriate here further to consider these constitutional questions. The appeal may be decided in favour of BHP, even assuming the questions were to be answered adversely to BHP and in favour of a construction of s 13(7) of the DDT Act which gave to the Tribunal the possibility of adjudication in South Australia of the present dispute. Authority indicates that in such a situation the Court should eschew determination of the constitutional questions[80].

    [80]See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 473‑474 [248]-[252].

95. The same is true of a further constitutional submission by BHP.  This takes as a first step the undisputed proposition that under the common law choice of law rules in Australia the forum would apply the law of South Australia, the law of the place of the wrong, as the lex causae in respect of matters of substance[81].  Then it is said to be beyond the competence of the legislature of the forum State, here New South Wales, to require its courts to determine the action by its own substantive law which differs from that of the lex loci delicti, here that of South Australia. The last step is to submit that s 11A of the DDT Act, in providing for awards of "provisional damages", deals with a matter of substance (the common law rules respecting merger in judgment and assessment of damages "once and for all") and does so in a way at variance with s 30B of the SASC Act.

    [81]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

96. There is a dispute between the present parties as to the characterisation of s 11A as substantive or procedural by application of what was said respecting that distinction in the joint judgment in John Pfeiffer Pty Ltd v Rogerson[82].  It was recognised in Pfeiffer[83] that the principles there explained may require further elucidation in subsequent decisions.  Pfeiffer also left for later consideration any submission which restricted the legislative competence of the States to vary or displace the common law choice of law rules applicable to intra‑Australian tort actions[84].

    [82](2000) 203 CLR 503 at 542‑544 [97]-[99].

    [83](2000) 203 CLR 503 at 544 [100].

    [84](2000) 203 CLR 503 at 535 [70].

97. All of the above further constitutional issues may be assumed to have an unfavourable outcome to BHP and, as indicated above, the appeal then falls for decision nevertheless in BHP's favour.  I turn to deal with the disposition of the appeal.

    Conclusions

98. The decision of the primary judge was in error and a consideration of what the expression "otherwise in the interests of justice" involves in this case indicates not that the removal and transfer application by BHP should have been refused, but that it should have succeeded.  This is an appropriate case for this Court, rather than to return the application to the Supreme Court for further consideration, to "give such judgment as ought to have been given in the first instance"[85].

    [85]Judiciary Act, s 37.

234. Sub-sections (1) to (4) of s 13 are consequential provisions.  Sub-sections (5) and (6) which are as follows should be noted:

     "13     Proceedings before the Tribunal

     ...

     (5)      A decision of the Tribunal is not liable:

     (a)to be vitiated because of any informality or want of form, or

     (b)to be questioned or appealed against in any court,

     except as provided by section 32 of this Act or section 48 of the Supreme Court Act1970.

     (6)Whenever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made."

235. Section 32 confines rights of appeal to the Supreme Court to appeals on points of law or on questions of admissibility of evidence, and by leave only, appeals from interlocutory decisions, on costs, and decisions in cases of claims for, or questions relating to, an amount of $20,000 or more. Is this a substantive provision? A defendant deprived of a right of appeal that it might otherwise have in South Australia would surely think so.

236. Section 17(1) is unusual.  It arguably at least allows a finding of liability to be made against a person who has not been served with process.

237. Section 20 makes provision for the service of subpoenas.  Section 20(2) imposes an obligation upon a subpoenaed person required to produce a document, to produce it written in the English language even if that is not the language of the document itself.

238. The Tribunal may, pursuant to s 23 dispense with such rules of evidence "as might cause expense and delay arising from any commission to take evidence or arising from any other circumstance" and may also compel the making of admissions.[226]  The same section empowers the Tribunal to allow other dispensations as to proof, including as to identity of parties and authority to act or bind.  The Court was not referred to any like provisions in the statute law of South Australia.

     [226]In commercial causes in some jurisdictions a similar power is conferred.  See the discussion in Railway Commissioners of NSW v G & C Hoskins Ltd (1918) 18 SR (NSW) 424 at 427-428 per Cullen CJ. See also Pt 18 of the Supreme Court Act 1995 (Q) and Pt 1 r 26(1) of the Supreme Court Rules (NSW). There appears to be no similar provision in South Australia.

239. One effect of ss 25, 25A and 25B is to allow the Tribunal to act on evidence received in other proceedings even though a party may not have had an opportunity of testing that evidence.  Another is to preclude, in the Tribunal's discretion, the re-arguing of "issues of a general nature determined in [other] proceedings before the Tribunal" or an appeal from it.

240. The balance of the Tribunal Act, apart from s 32 to which I have already referred and Pt 6, is generally taken up with provisions with respect to contempt, dismissal of frivolous proceedings, costs, service of documents, the giving of directions, mediation, the making of rules, and arbitration. Part 6 among other things makes provision for interim payments of damages against an insurer on a number of bases, including the satisfaction of the Tribunal that a plaintiff has obtained judgment for substantial damages against the (insured) defendant (s 43(3)). The Part also makes provision for the resolution of some differences between insurers when interim damages have been paid.

241. There can be no doubt that both substantively and procedurally the Tribunal Act enacts a very special and largely unique regime for the assessment and recovery of damages by particular plaintiffs. No doubt for reasons thought to be good and valid by the legislature of New South Wales, the regime is one established for the benefit of sufferers of dust-related diseases. It is not a regime in which, as a practical matter, defendants are likely to have the same rights both procedurally and substantively, as plaintiffs, and as they would have in the ordinary course in proceedings in the Supreme Courts of the States. It is a regime not adopted by States other than New South Wales. It is one thing for one State to establish such a regime to govern the recovery of damages, and thereby affecting commerce, insurance and other activities and events occurring within it, but altogether a different matter to seek to impose it upon other States.

242. This observation may also be made. It is certainly not immediately apparent whether all of the sections of the Tribunal Act which I have noted are either exclusively substantive or exclusively procedural. It seems to me that ambiguity in this regard is a matter highly relevant to a decision under the Cross-vesting Act whether to allow the proceedings to continue in the Tribunal. The advancing of arguable contentions both ways is likely to lead to the sorts of delays, uncertainties and expense which the Tribunal Act is said to have been designed to avoid. The remarks of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Regie Nationale des Usines Renault SA v Zhang[227] of the choice of substantive law to be applied under the Supreme Court Rules (NSW) in litigation in a jurisdiction different from the jurisdiction in which the tort occurred, as to the need for certainty are apposite here[228]:

     "The selection of the lex loci delicti as the source of substantive law meets one of the objectives of any choice of law rule, the promotion of certainty in the law.  Uncertainty as to the choice of the lex causae engenders doubt as to liability and impedes settlement.  It is true that to undertake proof of foreign law is a different and more onerous task than, in the case of an intra-Australian tort, to establish the content of federal, State and Territory law.  But proof of foreign law is concomitant of reliance upon any choice of law rule which selects a non-Australian lex causae."

     [227](2002) 210 CLR 491.

     [228](2002) 210 CLR 491 at 517 [66].

243. The appellant submitted that uncertainty, as to the constitutionality of some of the provisions of the Tribunal Act, the arguments in respect of which I have earlier summarized, is itself a further reason why the issue of cross-vesting should have been resolved in its favour. There is force in this. No constitutional issue would arise for consideration if the proceedings were to be transferred to South Australia.

244. Trial in South Australia by the Supreme Court under South Australian law both procedural and substantive is, as should already be apparent, much more likely to be conducive to certainty than trial in the Tribunal.

245. Section 11 of the Tribunal Act purports to oust the jurisdiction of any court or tribunal other than the Dust Diseases Tribunal. A Dust Diseases Tribunal wherever sitting could not oust the jurisdiction of a South Australian court. The possibility of two or more proceedings being litigated in more than one court or tribunal therefore exists. One such proceeding might be a duly initiated application to the Supreme Court of South Australia for a prerogative writ to prohibit or quash an order or unlawful conduct of the Tribunal sitting in South Australia. It would be undesirable for there to be two proceedings on foot at the same time, a claim by a plaintiff in the Tribunal to be heard in South Australia, and, for example, an application for a declaration by the Supreme Court of South Australia made by a defendant to the former proceedings that the plaintiff's claim is statute-barred.

246. Section 50 of the SASC Act[229] which has analogues and near analogues in the other States of Australia would enable a person aggrieved by an order or judgment of the South Australian Supreme Court (subject to some non-relevant exceptions) to appeal to the Full Court of the Supreme Court of South Australia as of right. Section 32 of the Tribunal Act limits appeals from the Tribunal, effectively to points of law unless leave be given by the Supreme Court (of New South Wales), and excludes appeals in some matters entirely.

     [229]      "Appeals against decisions of judges and masters

     50(1) Subject to the rules of court an appeal shall lie to the Full Court against every judgment, including every declaratory judgment entered pursuant to section 30B of this Act and any final assessment made thereon, order, or direction of a judge, whether in court or chambers, and also from the refusal of any judge to make any order:

     Provided that –

     (1)      No appeal shall lie from –

     (a)an order allowing an extension of time to appeal from a judgment or order:

     (b)an order giving unconditional leave to defend an action:

     (c)any judgment or order which is by statute, or by agreement of the parties, final or without appeal.

     (2)No appeal shall lie without the leave of the judge from any order –

     (a)      made by consent of the parties:

     (b)as to costs only which by law are left to the discretion of the judge.

     (3)No appeal shall lie without the leave of the judge or of the Full Court from –

     (a)an order on appeal from the Magistrates Court:

     (b)any interlocutory order or interlocutory judgment except in the following cases, namely:

     (i)Any order refusing unconditional leave to defend:

     (ii)Where the liberty of the subject or the custody of infants is concerned:

     (iii)Where an injunction or the appointment of a receiver is granted or refused:

     (iv)Any decision determining the claim of any creditor or the liability of any contributory or the liability of any director or other officer under the Companies Act 1962, as amended, or under any corresponding previous enactment, in respect of misfeasance or otherwise:

     (v)The grant or refusal of a decree or order nisi in a matrimonial cause:

     (va)Any assessment of damages not being a final assessment made pursuant to section 30B of this Act:

     (vi)Such other cases to be prescribed by rules of court as are, in the opinion of the authority making such rules, of the nature of final decisions.

     (2)Subject to the rules of court, an appeal shall lie to a judge against a judgment, order, direction or decision of a master."

247. Let it be assumed as I think must at least arguably be the position, that s 32 of the Tribunal Act is a substantive provision. The parties are agreed that the substantive law of South Australia is to apply. The Supreme Court of New South Wales cannot entertain a general appeal because s 32 precludes it from doing so. And no enactment of either State purports, even if it could do so, to provide for an appeal from the Dust Diseases Tribunal of New South Wales to the Full Court of the Supreme Court of South Australia. To deny a party a true and effective right of appeal is a serious and substantive matter. The effect and interaction of the two provisions to which I have just referred were not the subject of any argument by the parties and I need not express any concluded opinion as to them, but the arguable possibilities to which they give rise point strongly in favour of the cross-vesting of this case to the Supreme Court of South Australia.

248. It must now be accepted following John Pfeiffer that s 12A of the Tribunal Act is a substantive provision. The limitations law of South Australia as substantive law, would, as the parties accept, apply. In general it is better that the laws of a State be construed by the Supreme Court of that State for the obvious reason that that Court will be more familiar with, and will construe such laws on a frequent and consistent basis.

249. I am of the opinion that s 12B also of the Tribunal Act is a substantive provision. It effectively provides for a statutory head of damages. Except to the extent that South Australian legislation makes provision if any, of a similar kind, those damages could not be recovered in these proceedings in the Tribunal if it is to apply the substantive law of South Australia.

250. No attention was paid to s 12C of the Tribunal Act or to any South Australian provisions with respect to the recovery of indemnity or contribution by joint tortfeasors, and accordingly it would not be appropriate to say whether the law in each case is the same, or whether there is a difference as to a substantive matter between them. The possibility that there may be, again provides reason to prefer the South Australian Supreme Court as the appropriate forum.

251. It may be that in South Australia, as in other States, credit must be given by a successful plaintiff for the workers' compensation that he or she has received, by submitting to a reduction to that extent in the damages recoverable at common law. Section 12D of the Tribunal Act is to a contrary effect. The assessment of the quantum and heads of damages available are substantive matters. It may therefore be that in proceedings in the Supreme Court of South Australia a reduction would have to be made, if and to the extent that workers' compensation of any kind whether under the New South Wales Workers' Compensation (Dust Diseases) Act or any other Act, had been received.

252. Section 17 of the Tribunal Act is capable of producing a situation which justice and accordingly courts generally abhor, of judgment and enforcement of it against a person who has been found liable, even though he or she may not have been served with process in, and be unaware of the proceedings. This is a provision which on its face may appear to be merely procedural but which in fact is capable of producing real and substantive injustice. This Court was not referred to any substantive law of South Australia to a like effect.

253. Sections 23, 25, 25A and 25B do more than relax the rules of evidence.  They alter, or at least would allow the Tribunal to depart from the audi alteram partem rule.  Their effect is to enable the Tribunal to use against a party evidence and findings which it has had no opportunity of testing or controverting.  However they may be expressed, provisions capable of producing that outcome, of denying natural justice, do not have the appearance of being merely procedural.

254. Accordingly for those, and these further reasons, the primary judge erred and the appeal must succeed. 

255. First, the primary judge fell into error in overlooking that a concession as to the admission of evidence had been made, and in then comparing the South Australian evidentiary standards unfavourably with those of the Tribunal as enacted in the Tribunal Act.

256. In my opinion there was no basis for his Honour's conclusion that the Supreme Court of South Australia could not shift the "procedural gears" as effectively as the Tribunal.  His Honour did not specify the procedural gears that he had in mind. This appears to be pure speculation. It is also to cast an unfortunate aspersion upon a Supreme Court of parallel jurisdiction. Contemporary Supreme Courts are more flexible procedurally than in the past.  Bedside hearings can and do take place.  Expedited hearings are frequently granted.  Supreme Courts have a very great depth of experience of injuries and illnesses and the assessment of compensation for them.  The fact that the Supreme Court of South Australia is located where the first respondent and most of the witnesses live gives that Court the advantage of proximity, an advantage to which proper regard should have been, but was not had.

257. In my view it was also erroneous to think difference in expense relevant only if the difference were "grossly disproportionate".  Just what would constitute gross disproportionality was not spelled out.  Any difference that was not minimal should have been weighed in the balance with other relevant considerations.

258. His Honour at first instance emphasized as a matter favouring the Tribunal as the forum, the regular invocation of its jurisdiction by the first respondent.  He coupled that with the view of the first respondent's lawyers that their client could get legitimate procedural evidentiary and cost advantage from litigating in the Tribunal.  The party beginning proceedings will always be the party who selects the jurisdiction in which they are to be heard.  It is to beg the question to say that because a plaintiff has chosen his or her forum, a defendant cannot ask, or should suffer a disadvantage in asking that it be changed to a more appropriate one.  Furthermore, as I pointed out in Agar v Hyde[230] one person's legitimate advantage is another person's disadvantage.  There should be no presumption in litigation in favour of any party.  Courts are required to do equal justice.  It is wrong to say that proceedings should be conducted in the, or indeed any Tribunal because a plaintiff, or for that matter a defendant, is likely to have a better chance of winning or more easily winning there.  It seems that here, and the trial judge at first instance accepted, that the first respondent's professional advisers who had had considerable experience with the Tribunal, thought their client had better prospects as to liability and damages in the Tribunal than elsewhere.  To give effect to that view if it be correct would not be to do equal justice in the cross-vesting application.  Even if it be the case that the legislature of New South Wales were to think a claimant's advantage over a defendant a legitimate end, that could provide no basis for its imposition on other States and those entitled to litigate in the courts of them.

     [230](2000) 201 CLR 552 at 601-602 [131].

259. As I have already pointed out, the primary judge, whilst accepting that the tort arose in substance in South Australia, in the end failed to give this matter much, if any weight at all.  In my opinion it will always be an important matter.  In some of the cases the expression "natural forum" has been used[231].  I would take the expression to mean in most cases the forum of the jurisdiction in which the tort was committed.  It seems to me to be only logical that at least prima facie that forum will be better equipped to deal with the issues.  The events have taken place there.  Some, if not most of the parties have had, and are likely to continue to have a presence there.  Proximity to the courts there is likely to lead to both expedition, and savings in expense.  But of at least equal importance to all of these is the fact that the events giving rise to the claim were at the time subject to, and regulated by the law of the jurisdiction where they occurred, and in respect of the evaluation of which the court of that place should be the most experienced and efficient. One relevant law will usually be the law relating to insurance.  Policies are likely to have been implemented on the basis of the law there relating to damages, remedies, court and appeals. In other ways also, with respect, for example, to relations between employers and employees, the revenue laws and commercial laws, and compliance with safety and environmental standards, it may be assumed that the parties have organised their affairs with an eye to the State laws governing them. The parties' reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the court of that State. To these important matters the primary judge has made no reference. 

     [231]Dow Jones  & Co Inc v Gutnick (2002) 210 CLR 575 at 641 [157] per Kirby J; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 478 per Lord Goff of Chieveley; Airbus Industrie GIE v Patel [1999] 1 AC 119.

260. His Honour relied on his earlier reasoning in Zunic. In my respectful opinion that reasoning was flawed. There his Honour passed over the legislative disapproval of forum shopping by, in effect, saying that it was perhaps not to be regarded as warranting pejorative reference. That was not the point. The point is that the legislature had in mind and expressly set out to reduce or eliminate forum shopping. Whether it was occurring in any particular case is a matter which should be at the forefront of a judge's assessment of an application under the Cross-vesting Act, but it was not in this case.

261. I cannot help observing that this expensive, prolonged, essentially procedural litigation is litigation of the kind against which I warned in Mobil Oil Australia Pty Limited v Victoria[232] and is the sort of litigation which will inevitably be provoked whenever a legislature, by ambitious long-arm legislation, or a court by too expansive a view of its own powers, or the powers of another court of the same polity, encourages or assists plaintiffs to pursue claims in a non-natural forum. 

     [232](2002) 211 CLR 1 at 77 [181]-[183] per Callinan J.

262. I would allow the appeal. The question remains however what order I should make. The matter could be remitted to the Supreme Court of New South Wales for reconsideration in accordance with these reasons. But I do not think I should do this. Time and expense will be saved by a decision now. It seems to me that this is a clear case for cross-vesting. The Supreme Court of South Australia is well equipped to handle the case. It can do equal justice between the parties. It can do it by applying South Australian substantive and procedural law without the necessity to distinguish between what is substantive and what is truly procedural in the unique, and far from unambiguous relevant provisions of the Tribunal Act. It will not need to decide any constitutional issues. It can determine the case leaving the parties to exercise their ordinary and generally unconstrained rights of appeal to the Full Court of the Supreme Court of South Australia. The Supreme Court of South Australia will be free to exercise its powers under s 30B of the SASC Act to the extent that it thinks it appropriate to do so. It is in the interests of justice within the meaning of s 5(2)(b)(iii) of the Cross-vesting Act, and necessary therefore that the proceedings instituted by the first respondent be determined by the Supreme Court of South Australia.

263. I would order that the orders of the Supreme Court of New South Wales entered on 30 October 2002 be set aside and in lieu thereof, that:  (a) proceedings number 308 of 2002 in the Dust Diseases Tribunal of New South Wales be removed to the Supreme Court of New South Wales; and (b) the proceedings so removed thereupon be transferred to the Supreme Court of South Australia.