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Amaca Pty Ltd v Frost

Amaca Pty Ltd v Frost

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Case Copied 4 July 2006 60 min read

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Reported Decision: 67 NSWLR 635

New South Wales

Court of Appeal

CITATION: AMACA PTY LTD v Bernard George FROST [2006] NSWCA 173

HEARING DATE(S): 3 May 2006

JUDGMENT DATE:
4 July 2006

JUDGMENT OF: Spigelman CJ at 1; Santow JA at 133; McColl JA at 134

DECISION: 1 The appeal is allowed with costs; 2 The cross-appeal is dismissed with costs; 3 Set aside the orders of Curtis J of 17 August 2005; 4 Proceedings 407/2002 in the Dust Diseases Tribunal of New South Wales are dismissed with costs.

CATCHWORDS: PRIVATE INTERNATIONAL LAW – Choice of law – Tort – Place of the Tort – Negligence – Where asbestos manufactured in New South Wales by Defendant – Where Plaintiff exposed to asbestos in New Zealand – Tort occurred in New Zealand - PRIVATE INTERNATIONAL LAW – Choice of law – Where law of New Zealand applies – Where Plaintiff prevented from commencing proceedings “in any court in New Zealand” – Plaintiff prevented from commencing proceedings in Australia

LEGISLATION CITED: Accident Rehabilitation and Compensation Insurance Act 1992 (NZ), s 17
Accident Insurance Act 1998 (NZ), ss 4, 5, 7, 23, 24, 39, 40, 41, 394, 395, 396, 398,
Dust Diseases Tribunal Act 1989, s 32
Evidence and Procedure Act (New Zealand) 1994 (Cth), s 40
Injury Prevention Rehabilitation and Compensation Act 2001 (NZ)

CASES CITED: Armagas Ltd v Mundogas SA [1986] 1 AC 717
Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Boys v Chaplin [1971] AC 356
Breavington v Godleman (1988) 169 CLR 41
Buttigeig v Universal Terminal and Stevedoring Corp [1972] VR 626
Castree v ER Squibb & Sons Ltd [1980] 1 WLR 1248
D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369
Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Edwards (Inspector of Taxes) v Bairstow [1956] AC 14
Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd [2000] VSC 224
Hope v Bathurst City Council (1980) 144 CLR 1
Jackson v Spittall (1870) LR 5 CP 542
Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92
James Hardie & Co Pty Ltd v Carley [1999] NSWCA 80
James Hardie & Co Pty Ltd v Putt (1998) 43 NSWLR 554
James Hardies Industries Pty Ltd v Grigor (1998) 45 NSWLR 20
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
MacGregor v Application des Gaz [1976] Qd R 175
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Nielson v Overseas Projects Corp of Victoria Ltd [2005] HCA 54; 79 ALJR 1736
Phillips v Eyre (1870) LR 6 QB 1
Pulido v RS Distributions Pty Ltd [2003] ACTSC 61
Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491
Stevens v Head (1993) 176 CLR 433
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

PARTIES: Amaca Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWCA 173
Decision Date: 4 July 2006

CaseChat Overview and Summary

Amaca Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of Curtis J concerning a claim brought by Mr Frost. The dispute involved a claim for damages for personal injury allegedly caused by exposure to asbestos. Amaca manufactured asbestos products in New South Wales, and Mr Frost alleged he was exposed to these products in New Zealand.

The central legal issues before the Court of Appeal were whether the tort occurred in New Zealand, and consequently, whether the law of New Zealand applied to the claim. Further, the court had to consider the effect of New Zealand legislation that prevented Mr Frost from commencing proceedings in any court in New Zealand, and whether this prohibition extended to proceedings commenced in Australia.

The Court of Appeal determined that the tort occurred in New Zealand, the place where the plaintiff suffered injury. Applying the principles of private international law, the court held that the law of New Zealand should govern the claim. However, the court found that the New Zealand legislation, which barred proceedings in New Zealand, did not prevent Mr Frost from commencing proceedings in Australia. Despite this, the court ultimately allowed the appeal, finding that the proceedings in the Dust Diseases Tribunal of New South Wales should be dismissed.

The appeal was allowed with costs, and the cross-appeal was dismissed with costs. The orders of Curtis J of 17 August 2005 were set aside, and proceedings 407/2002 in the Dust Diseases Tribunal of New South Wales were dismissed with costs.

Orders

Orders of the court

1. The appeal is allowed with costs;

2. The cross-appeal is dismissed with costs;

3. Set aside the orders of Curtis J of 17 August 2005;

4. Proceedings 407/2002 in the Dust Diseases Tribunal of New South Wales are dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AMACA PTY LTD v Bernard George FROST [2006] NSWCA 173
HEARING DATE(S):	3 May 2006
JUDGMENT DATE:	4 July 2006
JUDGMENT OF:	Spigelman CJ at 1; Santow JA at 133; McColl JA at 134
DECISION:	1 The appeal is allowed with costs; 2 The cross-appeal is dismissed with costs; 3 Set aside the orders of Curtis J of 17 August 2005; 4 Proceedings 407/2002 in the Dust Diseases Tribunal of New South Wales are dismissed with costs.
CATCHWORDS:	PRIVATE INTERNATIONAL LAW – Choice of law – Tort – Place of the Tort – Negligence – Where asbestos manufactured in New South Wales by Defendant – Where Plaintiff exposed to asbestos in New Zealand – Tort occurred in New Zealand - PRIVATE INTERNATIONAL LAW – Choice of law – Where law of New Zealand applies – Where Plaintiff prevented from commencing proceedings “in any court in New Zealand” – Plaintiff prevented from commencing proceedings in Australia
LEGISLATION CITED:	Accident Rehabilitation and Compensation Insurance Act 1992 (NZ), s 17 Accident Insurance Act 1998 (NZ), ss 4, 5, 7, 23, 24, 39, 40, 41, 394, 395, 396, 398, Dust Diseases Tribunal Act 1989, s 32 Evidence and Procedure Act (New Zealand) 1994 (Cth), s 40 Injury Prevention Rehabilitation and Compensation Act 2001 (NZ)
CASES CITED:	Armagas Ltd v Mundogas SA [1986] 1 AC 717 Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 Boys v Chaplin [1971] AC 356 Breavington v Godleman (1988) 169 CLR 41 Buttigeig v Universal Terminal and Stevedoring Corp [1972] VR 626 Castree v ER Squibb & Sons Ltd [1980] 1 WLR 1248 D’Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd [2000] VSC 224 Hope v Bathurst City Council (1980) 144 CLR 1 Jackson v Spittall (1870) LR 5 CP 542 Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92 James Hardie & Co Pty Ltd v Carley [1999] NSWCA 80 James Hardie & Co Pty Ltd v Putt (1998) 43 NSWLR 554 James Hardies Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 MacGregor v Application des Gaz [1976] Qd R 175 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Nielson v Overseas Projects Corp of Victoria Ltd [2005] HCA 54; 79 ALJR 1736 Phillips v Eyre (1870) LR 6 QB 1 Pulido v RS Distributions Pty Ltd [2003] ACTSC 61 Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 Stevens v Head (1993) 176 CLR 433 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Vetter v Lake Macquarie City Council (2001) 202 CLR 439
PARTIES:	Amaca Pty…