James Hardie & Co & Anor v Grigor (S75-98 SLA

[1998] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S75 of 1998

B e t w e e n -

JAMES HARDIE & COY PTY LIMITED

First Applicant

JAMES HARDIE INDUSTRIES LIMITED

Second Applicant

and

ROBERT RENTON GRIGOR

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 1998, AT 10.06 AM

Copyright in the High Court of Australia

MR F.M. DOUGLAS, QC:   May it please the Court, I appear with my learned friend, MR D.E. GRAHAM, for the applicants.  (instructed by Allen Allen & Hemsley)

MR M.F. HOLMES, QC:   May it please the Court, I appear with MR A.J. BARTLEY and MR D.P. ROBINSON for the respondent. (instructed by McLaughlin & Riordan)

GLEESON CJ:   Could I mention both in relation to this and in the following matter, that I hold some shares in James Hardie.  I do not understand that the outcome of either of these cases is likely to affect the value of those shares, but I mention that in case anybody wants to make any submission about it.

MR DOUGLAS:   We, for our part, do not wish to make any submission.

MR HOLMES:   We do not wish to make any submission, either.

GLEESON CJ:   Yes, Mr Douglas.

MR DOUGLAS:   If it please the Court.  The issue raised by this appeal is whether an action brought by a New Zealand plaintiff against the defendant companies, which are incorporated and domiciled in New South Wales, should be stayed on the grounds of forum non conveniens.  The matter was argued before Judge Armitage of the Dust Diseases Tribunal, which is a specialist tribunal established in this State for the purpose of determining such matters, and it proceeded speedily up to the Court of Appeal wherein a divided decision - the Chief Justice decided the case in favour of a stay, whereas the President of the Court of Appeal and Justice Beazley decided the matter.

GAUDRON J:   Both judgments proceed on application of the principles in Voth, do they not?

MR DOUGLAS:   Your Honour, they are expressed to do so and one important aspect of the reasoning of the majority is that they expressed the view that had they been deciding the case in accordance with the more appropriate forum test, postulated by the House of Lords in Spiliada, they would have come to an opposite conclusion.

GLEESON CJ:   But Voth has been recently applied by this Court, has it not, in Henry?

MR DOUGLAS:   Your Honour, it has recently been applied by this Court ‑ ‑ ‑

GAUDRON J:   And reaffirmed, I would have thought.

MR DOUGLAS:   It has been referred to, whether it has been reaffirmed is another matter.  It has been applied in Henry v Henry and CSR v Cigna, both of which are cases concerning anti-suit injunctions, so it was a situation in which there were parallel proceedings.  In those circumstances, the High Court expressed the view in their majority judgment both in Henry v Henry and in CSR that it was relevant to take into account the existence of the parallel proceedings.

GLEESON CJ:   But it comes to this, does it not, Mr Douglas, that it would not be an appropriate case for special leave to be granted unless the view were taken that the view should reconsider Voth?

MR DOUGLAS:   Except this point, your Honour, that there is a question of public policy which arises because both the Chief Justice and the President expressed the view that they felt themselves bound by Voth.

GLEESON CJ:   I want to ask you how that came up.  Was that a submission put by counsel in argument?

MR DOUGLAS:   It was your Honour, yes.

GLEESON CJ:   Was it supported by evidence?

MR DOUGLAS:   Yes, it was, your Honour.

GLEESON CJ:   Evidence of what?

MR DOUGLAS:   There was evidence of the New Zealand legislation.

GLEESON CJ:   No, I am sorry, I thought you were talking about the pressure on the court system of New South Wales.  Are we on a different point?

MR DOUGLAS:   No, your Honour.  There were a couple of points of public policy, I think, which were relevant to that submission.  One is a matter which your Honour refers to.   It is true that there was no direct affidavit evidence as to the number, for example, of New Zealand cases which are presently being brought in the Dust Diseases Tribunal, but the matter did proceed both down below and here on the basis that there have been a number of such cases in recent times.

GAUDRON J:   But is not the public policy issue concluded against you by the terms in which jurisdiction is conferred?  I mean, really, you see, when you get down to this sort of question you are asking a court to take an exceptional step of refusing to exercise jurisdiction.  Now, it is clear that only the most limited of circumstances can a court ever refuse to exercise its jurisdiction, of course, forum non conveniens being one of them.  But, surely, the question of public policy in terms of jurisdiction is concluded against you by the terms of the Act establishing the tribunal.

MR DOUGLAS:   Your Honour, we would not see it in that way.  I know that the decision of Bengtell in the Court of Appeal in which I think the Chief Justice in his former position was a party has decided that the Dust Diseases Tribunal is open to all comers.  But the fact that it is open to all comers does not necessarily mean that all comers can come, any more than ‑ ‑ ‑

GAUDRON J:   Yes, it does. 

MR DOUGLAS:   No - - -

GAUDRON J:   Well it does.

GLEESON CJ:   It is a big thing for a court to put up a sign saying “No business today”.

MR DOUGLAS:   It is a question of who you provide the business for, your Honour. 

GAUDRON J:   But it does mean exactly that you see, Mr Douglas, that is the problem, it means exactly that.

MR DOUGLAS:   But your Honour, similar observations could be made in relation to the Supreme Courts.  Let us leave the Dust - - -

GAUDRON J:   And it does mean exactly that.  That is why the grant of a stay is an exceptional remedy.

MR DOUGLAS:   But there are two conflicting questions of policy involved here, one of which is the principle which was expressed in Distillers Limited, that it is manifestly just and reasonable that a defendant should have to answer for his wrongdoing in the country where he did the wrong.  The other question is whether Australian defendants, companies which are engaged in international business, should be liable at the suit of foreign plaintiffs in Australia, regardless of where the tort was committed.

GLEESON CJ:   I take it the case was argued below either before James Hardie actually became an international company and relocated its headquarters offshore or on the basis that that was not relevant.

MR DOUGLAS:   Your Honour, the fact that they have changed their domicile to an American domicile is not the international aspect of a business which I had in mind.  Rather ‑ ‑ ‑

GLEESON CJ:   They were treated as a company with headquarters in New South Wales.

MR DOUGLAS:   They were, your Honour.  But the fact of the matter is they are a company which, during the relevant period of time, carried on business internationally, relevantly in this case, by exporting their products to New Zealand but to other places as well.  What this case is important for - and it is a floodgate argument which I address - but are the courts of New South Wales to be open to foreign plaintiffs wherever James ‑ ‑ ‑

GAUDRON J:   Well, that is a question for the legislature, surely.  If the legislature drafts its legislation conferring jurisdiction in terms that the jurisdiction is available to all comers, then that is the answer, surely.

MR DOUGLAS:   But the Supreme Court is available to all comers, but the remedy of a stay is provided to enable this Court to regulate that jurisdiction.

GAUDRON J:   It is provided on the basis set out in Voth.

MR DOUGLAS:   But Voth is out of step with the common law world.

GAUDRON J:   Yes.

MR DOUGLAS:   I mean there is no doubt about that.

GAUDRON J:   Your application then is to - well I am not too sure that that is correct, in any event.  It may be out of step with the United Kingdom.  Your application is, in essence, for a reconsideration of Voth.

MR DOUGLAS:   That is if we have to go that far we do, because we say firstly, that although it has been referred to by Lord Goff in a recent decision of Patel as being part of the Spiliada line of authority, although modified, the fact of the matter is that when you are dealing with a situation in which you only have proceedings within an Australian jurisdiction and the application is to stay those proceedings, the test is “clearly inappropriate forum”, as expressed by Voth.  That led to a division of opinion in Henry between the former Chief Justice Sir Gerard Brennan and the other Justices on the Court ‑ ‑ ‑

GAUDRON J:   But Sir Gerard Brennan did not accept Voth either, did he?

MR DOUGLAS:   No, your Honour.

GAUDRON J:   Sir Gerard Brennan has always had a view on these matters different from the majority view.

MR DOUGLAS:   His view was, if you apply for “clearly inappropriate forum” tests in an anti-suit injunction context, it was not appropriate to have regard to how far the proceedings in the other jurisdiction had gone.  Now if one has a look at Voth, that seems to be, if we may say so with respect, a correct conclusion.

GAUDRON J:   Well, it is contrary to the majority decision.

MR DOUGLAS:   But what the majority decision in Henry v Henry and CSR v Cigna  said was that when you actually have parallel proceedings you do look at the proceedings in the other jurisdictions.

GAUDRON J:   Do you wish to review those as well, do you, Mr Douglas?

MR DOUGLAS:   No, your Honour.  What we say is that those authorities show that this Court is trending in a situation where you have parallel proceedings to the test of “more appropriate forum” expressed in Spiliada.

GAUDRON J:   I think it has in that circumstance, elaborated the application of the Voth principles.

MR DOUGLAS:   So then we have this situation, your Honour, that if you have proceedings only going forward in an Australian jurisdiction, the “clearly inappropriate forum” test in Voth applies.  If, on the other hand, you have parallel proceedings, one in Australia and one in another country ‑ ‑ ‑

GAUDRON J:   The “clearly inappropriate forum” test also applies.

MR DOUGLAS:   But you also have regard to the proceedings in another country.  That is almost analogous to the “more appropriate forum” test.  If you are looking at ‑ ‑ ‑

GAUDRON J:   Mr Douglas, your propositions astound me because if you go back to Voth and what was said in Oceanic Sun Line, it was made clear that although the test was different, one still looked at the various connecting factors and one still had regard to all the considerations that regard was had to in Spiliada.

MR DOUGLAS:   It was also said in Voth, your Honour, that you would usually get the same result in a “clearly inappropriate forum” case as you would in the “more appropriate forum” case.  Now, there could hardly be a more usual case, one would have thought, than a foreign plaintiff suing in this jurisdiction.  That could happen very many times.

GAUDRON J:   Of course it could, but it is not necessarily - the mere fact that it is a foreign plaintiff suing in this jurisdiction does not necessarily make it a “clearly inappropriate forum” test.

MR DOUGLAS:   I was not putting that proposition.

GAUDRON J:   And really you almost have to come to that in this case, do you not.  You have to say a foreign plaintiff and the legal regime is different in New Zealand.  Is there anything else that you can rely on?

MR DOUGLAS:   Your Honour, it is a situation which really there is no other connecting factor with this jurisdiction other than our residence ‑ ‑ ‑

GAUDRON J:   Yes, but is there anything else you can rely on?  There are connections with this jurisdiction.  At the relevant time, the company carried on business in Australia and it exported the product from Australia.  Many of its witnesses will be in Australia.  Its records are in Australia.

MR DOUGLAS:   But those sorts of connections would be present whenever you have a company within the jurisdiction, your Honour.

GAUDRON J:   Well, exactly.

MR DOUGLAS:   But they are just natural consequences of the fact that they are here.

GAUDRON J:   But you could make this submission in every case in which there is a foreign plaintiff, could you not?

MR DOUGLAS:   No, your Honour.

GAUDRON J:   So your submission at base almost comes down to a court should not exercise jurisdiction in respect of a foreign plaintiff if the plaintiff can sue in another country.

MR DOUGLAS:   No, your Honour, because much depends here upon the fact that the tort was committed in New Zealand.

GLEESON CJ:   It used to be the case, before the developments in the law in relation to this subject, that the obvious place to sue a corporation was the place where it had its headquarters.

MR DOUGLAS:   But, your Honour, this is not the way in which courts internationally are approaching the situation now.

GLEESON CJ:   No, that has been overladen by various principles.  But that consideration has not become irrelevant has it?

MR DOUGLAS:   Well, if one goes back to the time of Phillips v Eyre I think one could say that is a very accurate observation, your Honour. 
But if one comes forward, for example, to a similar English case which was just decided of Connelly v RTZ which was a plaintiff who had an exposure to asbestos in Namibia and he sued RTZ in England and he was, at the time, a resident of England - this case was just decided last year. - the majority said, “We will let the case forward go forward in England but only for the reason that he can get legal aid here and he cannot get it in Namibia, otherwise we would have sent it back”.  Lord Hoffman, on the other hand, who was in dissent, referring to what Justice Sopinka in Amchem said, “No, even though he cannot get legal in Namibia, I am still going to send it back there. 

If you look at Distillers which expresses a view that people should be sued for wrongs which are committed in a place where they committed a wrong, if you look at that case you can see that the test which we are applying in Australia puts us out of step with international authorities.  Because it puts us out of step, it puts Australian companies which carry on international business at a disadvantage if in fact they are competing in foreign jurisdictions because they, if one has a look at it, are alone, it would appear, peculiarly susceptible to being sued for tortious behaviour committed abroad in the jurisdiction in which they have their principal place of business.  Now that is, as we would see it, a serious matter.

GAUDRON J:   Well, that may well be a matter for the legislature to deal with by way of jurisdiction.  But once the legislature confers jurisdiction, presumably it intends that that may occur.

MR DOUGLAS:   Your Honours, I think I have addressed that proposition.  I do not need to say any more about that.  I just want to say something more about the public policy matter.  In Rockware Glass Ltd v MacShannon (1978) AC 795, that was a case in which Scottish plaintiffs, for whatever reason, decided to sue the defendants in England presumably because they thought they would get a better deal. Those proceedings were stayed. In that case a question of public policy was averted to. In Lord Diplock’s judgment which was not the majority, I hasten to say, he said, “Many a mickle makes a muckle”, and I have been tempted to repeat that here because ‑ ‑ ‑

GAUDRON J:   I do not understand that expression.

MR DOUGLAS:   Well, it just means ‑ ‑ ‑

GAUDRON J:   I am not being of Scottish ancestry like some.  Does it mean “makes a mess”?

MR DOUGLAS:   No.  It just means, once you open a floodgate, well then you do not know where it is going to go.

GLEESON CJ:   That is why I asked whether there was evidence before the Court in relation to this issue?

MR DOUGLAS:   Your Honour, there is not evidence in relation to the number of cases:  there is another case coming on after this one, firstly; secondly, it would be obvious if one has regard to this decision that it does open floodgate.

GLEESON CJ:   I suppose the practical consideration behind all this is that New Zealand has a “no fault” system of compensation for personal injury.

MR DOUGLAS:   It does, your Honour, yes.

GLEESON CJ:   Which might be either beneficial or detrimental to a plaintiff, depending upon how the plaintiff thinks he or she can go on the issue of liability and contributory negligence.

GAUDRON J:   And may also affect the outcome of the New South Wales proceedings.

MR DOUGLAS:   But this particular plaintiff believes he is not subject to that.  If one looks at the Chief Justice’s judgment, you can see that there are issues which arise in relation to that so there will be complex decisions of the interpretation of New Zealand law, which will have to be carried out by a New South Wales court in any such case as this which comes to these shores.  So we put our submission primarily on those two grounds.  One is that Voth needs to be relooked at in the light of Henry v Henry, CSR v Cigna and the adoption of the Spiliada test internationally which is referred to in Patel.  If one looks at the references in that judgment - I will not take the Court to it - you can see it is not only then adopted in virtually every other common law country, but also appears to have been adopted in Japan.

GAUDRON J:   Yes, and not without criticism, of course, in other common law countries, not without very considerable criticism.

MR DOUGLAS:   But it has been adopted, your Honour, as being a more appropriate term.

GAUDRON J:   Yes, that really is the sheep argument, is it not; or the jurisprudential cringe argument?

MR DOUGLAS:   Not in a situation such as this, your Honour, because it is not merely a situation in which this Court should have regard to what is said in other countries.  In this particular area of law ‑ ‑ ‑

GAUDRON J:   No, it is that you should follow them.

MR DOUGLAS:   No, questions of comity do arise and particularly in questions of private international law questions of uniformity in international practice are important and particularly if that is a law applied by our major trading partners, and as ‑ ‑ ‑

GAUDRON J:   I think that is material to be put to a legislature, is it not?

MR DOUGLAS:   Your Honour, this Court does have ‑ ‑ ‑

GAUDRON J:   I mean, we are concerned, after all, with legal principle.

MR DOUGLAS:   This Court, after all, did establish some 10 years ago, I think, the “clearly inappropriate forum” test.  It did not need the assistance of the legislature to do that.  It has the capacity ‑ ‑ ‑

GAUDRON J:   But it did it in the context of accepted legal principle too.

MR DOUGLAS:   But not as that principle is perceived internationally at the present time, your Honour.

GLEESON CJ:   But it is a recent and considered decision of the Court whose function, after all, is to settle the law not to unsettle it.

MR DOUGLAS:   It is, your Honour, and obviously I am conscious of that and I am inviting the Court to reconsider it but I am conscious that if the Court does not wish to, they will not.  I think my time is up.

GLEESON CJ:   Thank you Mr Douglas.  Yes, Mr Holmes.

MR HOLMES:   Your Honour, the short point on the application for leave is that the applicant wishes to overturn a discretionary judgment which correctly applied established law.  We rely on the fact that members of this Court have already expressed the view that it is more appropriate for a legislature review rather than a judicial review.  Those sentiments were also echoed by the President of the Court of Appeal.  That appears at page 89 of the application book where Justice Mason said:

I respectfully agree with what the Chief Justice has written (echoing Deane J in Oceanic) about the need to consider legislative reform common law principles which place no burden of persuasion upon foreign residents wanting to litigate foreign torts in a crowded judicial regime -

so that our basic proposition is it is more appropriate for judicial reform, and that has been recognised by both this Court and the Court of Appeal.

The second matter is in relation to your Honour the Chief Justice’s question about the pressure on the court system.  That was not raised below.  The floodgates argument was not run, and there was no evidence run on the number of cases.  The only matter which I recall was that the Chief Justice asked for a question about the funding of the “no fault” system which your Honour the Chief Justice referred to.  That was the only public interest consideration, whether or not the funding in some way affects the right of the plaintiff to bring an action in this jurisdiction.

So far as the “no fault” system is concerned, the case relies upon manufacture in New South Wales of the product of asbestos, using asbestos into building products in New South Wales and their supply onto the market through third parties exposing the plaintiff in New Zealand to asbestos dust and fibre.  That was in a period of 1962 to 1974 and as was recognised by the Chief Justice at page 56 of the application book and the President of the Court of Appeal at page 86, that does not give rise to any question of the “no fault” system, it predating it, and not being caught by that system.

So far as the error identified by the Court of Appeal, namely that they relied upon the decision of Putt, we would also submit that this is not an appropriate vehicle to consider changing the law in Voth because we would be submitting that the decision of Putt is wrong, and there is an authority which we have recently become aware of which we have supplied to the Court, the decision of Lubbe v Cape Plc.  It is an English Court of Appeal decision.  So for a second reason, it is not an appropriate vehicle ‑ ‑ ‑

GAUDRON J:   Can you just summarise the effect of Lubbe, Mr Holmes.

MR HOLMES:   The effect of Lubbe was you had a plaintiff resident in South Africa who had been exposed to asbestos dust and fibre at mines in South Africa, suing the parent company of the mine operator in England.  There was  question of whether or not, applying the Spiliada test of the forum non conveniens, the proceedings should be stayed.  There were two ‑ ‑ ‑

GAUDRON J:   Was it concerned with the place of the tort?

MR HOLMES:   It was concerned with the place of the tort and that was discussed in the judgment.  If your Honours have the judgment, there are headings on the left-hand side of the page and at the foot of page - there is a heading on about page 10 of the judgments, “Authorities”.  Now, this matter will, I would anticipate, would be the subject of submissions in the following case.  The Court of Appeal sets out there at about the middle of the page:

It is unnecessary in my judgment to refer to any of the forum non conveniens cases except Spiliada -

and there is a recent decision of Red Sea.  And then over the page, at the foot of the page:

Also relevant, in my judgment, are the authorities which.....determine the proper law of a tort committed either partly or wholly outside the territorial jurisdiction of the English Court -

and then over the page, at the foot of the page, that caused the plaintiff to:

re-formulate the plaintiff’s central allegation as follows:-

“Whether a parent company which is proved to exercise de facto control over the operations of a (foreign) subsidiary and which knows, through its directors, that those operations involve risks to the health of workers employed by a subsidiary and/or persons in the vicinity of its factory or other business premises, owes a duty of care to those workers and/or other persons in relation to the control which it exercises over and the advice which it gives to the subsidiary company?”

GAUDRON J:   Now, that is really what we would call proximity.

MR HOLMES:   Yes, but in terms of that allegation, the court then went on to deal with the governing law, over the page and at the foot of the page.  At page 15, about three pages further on, in the middle of the page, he said:

Although he gave no express ruling, the judge indicated in the passage referred to above that in his view the defendant’s alleged liability is governed by South African law, and if he did so, then in my judgment he misdirected himself.  It is an open issue, and at best for the defendant a neutral factor in the circumstances of the case.

So that part of the judgment, rather than saying it was clear that it was a South African law which governed the place of the tort or governed the tort, he said it was an “open issue”.  But two paragraphs further on, he said:

First, the issue whether a duty of care was owed by the defendant, in England, may be governed by English law, even if the other factors making up the alleged tort of negligence are governed by South African law - - -

GAUDRON J:   That is an interesting question, is it not?

MR HOLMES:   Yes, your Honour.  We put ‑ ‑ ‑

GAUDRON J:   And one can well understand why it would be convenient for that matter to be determined in - - -

GLEESON CJ:   It seems to be related back to the statement made right in the middle of the page which, on our print is 12 of 19, it is probably page 13 of yours.  It says:

considerations of English public policy are involved in deciding whether or not a duty of care should be imposed in a given set of circumstances.

MR HOLMES:   Yes, your Honour, and that, in our submission, highlights the local nature of the present proceedings, namely, on one of the factual strands the applicant used asbestos in Australia to manufacture building products, being aware of the risks of the product to Australian consumers ‑ ‑ ‑

GLEESON CJ:   But all you are arguing is that, if anything, the case below was decided on an assumption unduly favourable to the applicant in this respect.

MR HOLMES:   Yes.

GLEESON CJ:   And the issue you are into now is really the one that arises in the next application.

MR HOLMES:   Yes, that is right.

GLEESON CJ:   Well, I think you have made your point about that.

MR HOLMES:   If your Honour please.  Your Honour, they are the submissions why we would submit that it is a clearly inappropriate vehicle to re-examine the law so recently established by Voth and applied and elaborated in the other cases referred to and in our submission, the application should be refused.

GLEESON CJ:   Yes, Mr Douglas.

MR DOUGLAS:   There is just one matter I wish to reply on and it is that decision, your Honour, and that is this.  we are not dealing here with someone who is a workman in a plant in a foreign jurisdiction.  We are dealing with someone who cut up fibrolite sheets in his backyard and made a fence, according to the allegations in the statement of claim.  The question whether Australian law would govern those sorts of exposures is, of course, an entirely different matter, and is much ‑ ‑ ‑

GAUDRON J:   There is a problem about that, is there not, in that some of the judgments below keep making the assumption that it is New Zealand law that applies in this case.

MR DOUGLAS:   Well, no.  Judge Armitage came to the view that it was an Australian tort but I the argument I put to him is that you cannot really negligibly manufacture explosives or an atomic bomb.  I mean, the fact that asbestos sheet is now known to be dangerous and as alleged by the plaintiff was then known to be dangerous, does not mean it is a case of negligent manufacture simply because you make good asbestos sheeting.  It has to be a case - but in some way it was made in a way by reason of its negligent manufacture which increased his exposure.  We are just dealing here with a situation in which a New Zealander suffered exposure as a result of being exposed to asbestos fibre which came from sheeting which he bought from a distributor in New Zealand and, on one argument, a manufacturing company which was owned by a New Zealand company which was part of a Hardies group.  It is not like this case where one is actually dealing with a workman being, arguable, controlled by a board of directors who are situated in Sydney. 

I have not fully digested this case but my understanding of the case is that Ms Dohmann, who was running the case for the plaintiff, was invited to narrow down her duty of care to workmen who were in the factory or in the precincts or curtilage of the factory, and did so.  It will be an extraordinary step if questions of proximity in Australia were to govern what one might call exposures at the retail end of a business such as this in New Zealand.  We would see this case as not having anything to say in relation to this particular case.  I do not say anything in relation to Putt - Mr Walker will deal with that matter - but it is of no assistance and this case is much closer, in fact on all fours with the Distillers- type case where it is really a failure to warn and as Distillers makes quite clear in those circumstances, the place of the tort in a case such as this would be in New Zealand.  That is the only matter I wish to reply on, if it please the Court.

GLEESON CJ:   It was common ground in the courts below that the outcome of this case turned upon the application of the principles established by the decision of this Court in Voth v Manildra Flour Mills Pty Limited to the facts and circumstances of the case.  The Court is of the view that in those circumstances, this is not a proper case for the grant of special leave to appeal.

It should be added that there are statements in the judgments below that New Zealand law would be determinate of the respondent’s rights in this case.  Those statements were put on the basis that the claim must be actionable according to the law of New Zealand for the purposes of the “double actionability test” in the case of Phillips v Eyre.

Do you resist an order for costs, Mr Douglas?

MR DOUGLAS:   No, your Honour.

GLEESON CJ:   The applicants are to pay the respondent’s costs of the application.

AT 10.39 AM THE MATTER WAS CONCLUDED