Puttick v Fletcher Challenge Forests Ltd
[2006] VSC 370
•13 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4564 of 2005
| JANINA PUTTICK (AS EXECUTOR OF THE ESTATE OF RUSSELL SIMON PUTTICK) | Plaintiff |
| v | |
| FLETCHER CHALLENGE FORESTS LIMITED | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 APRIL 2006 | |
DATE OF JUDGMENT: | 13 OCTOBER 2006 | |
CASE MAY BE CITED AS: | PUTTICK v FLETCHER CHALLENGE FORESTS LTD | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 370 | |
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PRIVATE INTERNATIONAL LAW – Application for proceedings to be permanently stayed on forum non conveniens grounds or, alternatively, for amended writ and amended statement of claim to be struck out – Claim for damages by a widow under the Wrongs Act 1958 and for exemplary damages – Deceased a citizen of New Zealand and employed as a manager for a New Zealand company – Deceased alleged to have inhaled asbestos fibres or dust while inspecting factories in Belgium and Malaysia at the direction of his employer - Whether governing law that of New Zealand – Whether lex loci delicti New Zealand or Victoria - Proceedings stayed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Gordon | Slater & Gordon |
| For the Defendant | Mr D. Curtain QC with Ms L. De Ferrari | Freehills |
HIS HONOUR:
The writ by which this proceeding commenced was issued on 14 February 2005. By it, Mr Russell Puttick claimed that he was employed by the defendant between “about 1981 and 1989”. In the course of his work, he inhaled asbestos dust and fibres. This was a consequence of the defendant’s failure to fulfil its duty to provide him with a safe work place “and a safe proper system of work”. The plaintiff claimed damages.
Eleven days later, on 25 February, he died. His death certificate records the cause of death as malignant mesothelioma, and the duration of his last illness as 18 months. The Victorian State Coroner, Mr Graeme Johnston, certified the death after an investigation held at the Coronial Services Centre. Mr Puttick's widow (Mrs Janina Puttick) is the executor of his estate, and sues in that behalf as well as on behalf of herself and the two infant children of the marriage (who are, respectively, 7 and 5 years of age).
An amended writ, on which an amended statement of claim is endorsed, was issued on 7 February 2006. This alleges that, between about 1981 and about 1989, Mr Puttick was employed not by the defendant (a company incorporated in New Zealand and registered as a foreign corporation in Australia) but by a subsidiary of the defendant, a company then called Tasman Pulp & Paper Company Limited (“Tasman”). Tasman too is incorporated in New Zealand, and conducts its operations there. According to the amended statement of claim, it was directed, managed and controlled by the defendant to such an extent that it was incapable of acting independently. For this reason (according to the amended statement of claim) the defendant owed an (otherwise unspecified) duty of care to Mr Puttick as one of Tasman’s employees.
It is not alleged that Mr Puttick’s exposure to asbestos dust occurred whilst he was on premises of, or which were controlled by, either the defendant or Tasman. Rather, it is pleaded that he was required by his employer to make successive visits to two plants overseas (in one case in Belgium, in the other case in Malaysia) where asbestos products were being manufactured. The statement of claim alleges that, between 1981 and 1989, six visits were made to the Belgium plant; while Mr Puttick was on eight occasions between 1987 and 1989 required to travel to the plant in Malaysia. It was in one or other or both of these factories that he inhaled, and was thereby fatally exposed to, asbestos (presumably as dust or fibres).
There is no allegation of breach of whatever unspecified duty it is said was imposed upon the defendant. All the statement of claim pleads is that, at the material times, the defendant knew, or ought to have known: (a) of the fact of Mr Puttick’s exposure; (b) of the fact that he would thereby inhale asbestos; and (c) of the risk that he would thereafter contract a serious respiratory injury. According to the amended statement of claim, the risk became the reality when, "the deceased, in 2003, in Victoria, suffered injury and died as a result of those injuries on 25 February 2005 at Black Rock in the said State". The plaintiff, by her prayer for relief, claims damages (both pursuant to the Wrongs Act 1958 and otherwise) together with exemplary damages, interest and costs.
On 20 February 2006, the defendant filed a conditional appearance. This was followed on 6 March 2006 by a summons by which the defendant seeks orders in the alternative: first, that the proceeding be stayed permanently on forum non conveniens grounds; or, secondly, that the amended writ and amended statement of claim be struck out on the basis that the governing law is the law of New Zealand, and that under that law the claim must necessarily fail. It is that summons with which I am presently concerned.
An affidavit sworn on 6 March by Peter John Holloway, a partner of Freehills, solicitors, who act as the Melbourne agents for the defendant’s New Zealand solicitors, has been filed in support of the summons. He deposes to the fact that the defendant is registered in New Zealand under the name Tenon Limited, but is registered in Australia under the name by which it is sued in this proceeding.
In his affidavit, Mr Holloway also deposes to his belief about the identity of Mr Puttick’s employer. From September 1982 to March 1989, the deceased was an export manager with Tasman. According to answers recorded in an employment questionnaire which was, as Mr Holloway believes, completed by Mr Puttick, he was then a citizen of New Zealand. His employer, formerly a part of the Fletcher Challenge Paper Division, was sold when, in the year 2000, the Division was purchased by Norske Skogindustrier ASA. Through a series of subsequent company amalgamations, Tasman eventually became – or was absorbed into the structure of – a company called Norske Skog Tasman Ltd. Mr Puttick was later employed by the defendant; but this was not until 1996.
Although, on 3 April, the plaintiff herself swore an affidavit in opposition to the defendant’s summons, she did not then attempt - and has not since attempted - to challenge Mr Holloway’s belief as set out above. Rather, Mrs Puttick deposes to her husband’s engagement as manager of the New Zealand operations of an Australian paper manufacturer and, following his subsequent promotion, the family’s relocation to Melbourne. It was here that, in August 2003, Mr Puttick’s illness first became symptomatic; and it was Melbourne doctors who diagnosed, and then attempted to treat, the mesothelioma from which, 17 months later, at home in the Melbourne suburb of Black Rock, he died.
In the meantime, Mr Puttick had decided (it seems without reference to any legal advice) to apply for the benefits available from the New Zealand Accident Compensation Commission (“ACC”) to New Zealanders who have suffered injury in (amongst other circumstances) the course of their employment. Doubtless he relied in doing so on his status as a resident of that country at the material times. There is before me no direct, but there is compelling circumstantial, evidence about that status.
That Mr Puttick was at all material times a citizen of New Zealand and, until his transfer to Melbourne, resident in that country, is (as I understand it) not in issue. His marriage certificate is an exhibit, and it shows that Mr Puttick was born in Auckland on 26 October 1960. At the time of his marriage on 1 August 1998, his home address was 6 Second Avenue, Kingsland, Auckland. He was from about September 2000, the time when his second child was born, commuting between Auckland and Melbourne while his family continued to live in New Zealand pending an anticipated re-location to Melbourne. This took place in January 2001. Mr Puttick lived thereafter in Black Rock with his wife and children. He was in the course of taking out Australian citizenship when he died.
Mr Puttick's application to the ACC was successful. The Commission accepted that he qualified for compensation from it, although a dispute about quantum, and the form in which it should be paid, continues. In the meantime, the ACC has already paid NZ $19,021.80; and Mrs Puttick is also entitled to an additional lump sum of at least NZ $85, 087.26.
Despite these entitlements (whether finally determined or not), the plaintiff submits that New Zealand law is not the source of the right to relief that she asserts in the present litigation. The lex causae, that is, the legal regime governing the legal relationship between the parties, is - according to this argument - either the law of Victoria, or one or both of the law of Belgium or Malaysia.
Neither side contends that the jurisdiction of this Court has not been properly invoked in the sense that the defendant, being registered as a foreign company in Australia, has a registered office in Sydney; and it was there that the defendant was served with the writ. Such service is made good by either s.109X or s.601CX, or both, of the Corporations Act 2001, as well as by rule 7.01 of the Rules of the Supreme Court. The defendant, however, seeks to put a gloss on the invocation of the jurisdiction by submitting that the sufficiency of the formal steps in achieving that end should not disguise the strength of the proposition that a stay should be ordered. The defendant here makes a number of points. First, it has but a limited presence in Australia. Secondly, although originally the statement of claim alleged negligence on the part of Mr Puttick’s employer, once it was realised that his employer was the New Zealand subsidiary of a company registered as a foreign company in Australia, there was a change of tack, and the defendant was sued as the alter ego of the employer. Thirdly, the present plaintiff has chosen not to sue her husband’s former employer (Tasman), even though that was the initial intention, and even though she is (as the defendant submits) clearly capable of litigating in New Zealand. Finally, Mr Puttick made his initial claim for compensation in New Zealand under that country’s accident compensation scheme, and his widow thereafter pursued it. She is thus seeking “compensation for the same harm under two schemes and two laws.”[1]
[1]Reply submissions of the defendant, 5 May 2006.
The defendant’s application for a stay will fail unless it can satisfy me that this Court is a clearly inappropriate forum for the trial of this proceeding.[2] It will not necessarily provide such satisfaction on the sole ground that New Zealand is the source of the lex causae; or, in other words, that the choice of law rules binding upon me require the application of New Zealand law to the facts of the case (an issue which in itself is a matter hotly in dispute in this case, and which will require further attention in this judgment). As the High Court said in Regie Nationale Renault v Zang:[3] “[a]n Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply in the forum require its courts to apply foreign law as the lex causae.” Foreign law can be proved by calling appropriately qualified experts to give evidence about what, as a matter of fact, it is; and when that law has as much in common with the law of Victoria as does that of New Zealand, its application by a Victorian court will generally give rise to little difficulty.
[2]Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.
[3](2002) 210 CLR 491 at 521 [81].
On the other hand, New Zealand has what Victoria has not – a statutory “no fault” accident compensation scheme that “gives 24 hour protection against personal injuries suffered whether by industrial accidents or [as in Mr Puttick’s case] exposure to disease through a work-related gradual process, or motor vehicle accidents or medical treatment, or accidents at home or at leisure.”[4] The governing legislation is at present the Injury Prevention, Rehabilitation, and Compensation Act 2001. It came into force on 1 April 2002, and continues a legislative scheme that has been in place since 1 April 1974. Over the ensuing period, much law, peculiar to New Zealand, has grown up around the scheme, which in that country forms a very important part of the law relating to personal injuries. Its proper operation depends upon the proper construction and application of not only the governing legislation, but also the statutory and other law with which it interacts.
[4]Affidavit sworn by John Michael Miller on 10 March 2006 and filed on behalf of the defendant.
This kind of foreign law is generally best applied by foreign courts. It follows that, at least when other considerations are in the balance, and the question is whether an Australian or a New Zealand court should try a matter in which the New Zealand accident compensation scheme is the lex causae, it may be that the Australian court should properly be described as a clearly inappropriate forum. As Lord Goff of Chieveley (whose speech commanded the assent of the other Law Lords) observed in Spiliada Maritime Corporation v Cansulex Ltd,[5] the “natural forum” is “that with which the action had the most real and substantial connection”; and his Lordship identified as one of the relevant “connecting factors” “the law governing the relevant transaction”. I turn now to examine those connecting factors that seem to me to bear upon this case.
[5][1987] AC 460 at 478.
Mrs Puttick, in her affidavit of 3 April 2006, deposes to the difficulties to which a trial in New Zealand would give rise. She operates a bookkeeping and business services business. She is its sole employee. She is also a part-time student. She has children who, as I understand it, are solely dependent upon her. Although she does not explicitly swear to the fact, it is possible that her absence in New Zealand for the trial would cause problems in each of these areas. Moreover, all her late husband’s treating doctors are in Melbourne. Other potential witnesses are in Sydney or Perth, while relevant records are in Melbourne and Sydney.
Mr Paul Gillard is the defendant’s general manager. He has sworn an affidavit in support of the summons of 6 March. In that affidavit, he corroborates Mr Holloway’s evidence about the employment history of the deceased, and deposes to the fact that, to the best of his knowledge, Tasman had throughout the relevant period its own independent board and its own independent structures of governance. To Mr Gillard’s understanding, the board of the defendant did not involve itself in the day to day operations of either Tasman or the other operating companies in the group. Mr Gillard adds that the defendant “was always a New Zealand domiciled company”, its “board meetings were always held in New Zealand and its corporate records always were, and still are, held in [that country]”. The same was true of Tasman. It was based in Auckland, it held its board meetings in that city, and retained its board records there as well. Documents relevant to its knowledge of work practices, its systems of work, its awareness of risks and its knowledge about such matters as health warnings about asbestos issued by the New Zealand Department of Health are all, Mr Gillard expects, held in New Zealand. Based upon the inquires made by him, Mr Gillard deposes that all the relevant senior personnel of the defendant were employed in New Zealand, and Mr Gillard expects that the same is true of most of the relevant employees of Tasman.
If this dispute were to go to trial, it is in my opinion unlikely that the health of Mr Puttick, including the cause of his death, will be contentious. If this is right, the plaintiff’s need to call medical evidence will be limited. By contrast, a central - and highly controversial - point of difference will be the degree of control exercised by the defendant over Tasman. This being so, many - if not the great majority - of the witnesses and the relevant documents will be based or located in New Zealand.
If matters were to rest at this point, New Zealand would be the more appropriate forum; but, at the same time, Victoria would not be clearly inappropriate. Thus, were no further considerations to be taken into account, then this Court – following the principles expounded in Oceanic Sun Line Special Shipping Co Inc v Fay[6] and Voth v Manildra Flour Mills Pty Ltd[7] - should not decline to exercise the jurisdiction which, as the defendant in effect concedes, has been regularly invoked. The issue would of course be even clearer were Victorian law to be the lex causae. But if, according to Australian choice of law rules, New Zealand law were to be the governing law, the matter would have to be revisited.
[6](1988) 165 CLR 197.
[7](1990) 170 CLR 571.
The plaintiff submits that the applicable (governing) law is the lex fori. That submission is based upon the circumstance that “damage and loss being the first damage and loss suffered that was more than minimal and thus completed the cause of action was suffered in Victoria”.[8] But this part of the submission does not seem to be compatible with the adoption, by the High Court in Regie Nationale Renault v Zhang, of the lex loci delicti as the law governing issues of substance to be determined in a proceeding arising from a foreign tort.[9] This is such a proceeding. The fortuitous fact that Mr Puttick's illness first became symptomatic in Victoria does not turn that which is an essentially foreign tort into one that is essentially indigenous.
[8]Outline of submissions of the respondent/plaintiff 6 April 2006 at [9].
[9](2002) 210 CLR 491 at 515.
If the lex loci delicti should be applied by courts in Australia as the law governing issues of substance to be determined in a proceeding arising from a foreign tort, it will be necessary to determine the place at which the wrong of which the plaintiff complains was committed. I begin by going to “the origin of contemporary doctrine on this matter”[10]: that is, the case of Jackson v Spittall.[11] In that case, the determination of the place of a tort was said to involve identifying “the act on the part of the defendant which gave the plaintiff his cause of complaint”; terminology bearing a resemblance, doubtless not accidental, to s.18(4) of the Common Law Procedure Act 1899 (NSW). That was a provision with which the Privy Council grappled in Distillers Co (Biochemicals) Ltd v Thompson[12]; and, in the course of doing so, came to enunciate the principle that “[t]he right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did the cause of action arise?”[13]
[10][2006] NSWCA 173 at [14].
[11](1870) LR 5 CP 542.
[12][1971] AC 458.
[13]Ibid, at 468.
The plaintiff submits that the place of the tort is the place where a cause for complaint arose or where the impugned conduct assumed significance. [14] This was not New Zealand, because:
“… whatever acts or omissions of the defendant occurred in New Zealand, they were devoid of fault (and thus legal consequence) until deceased was, in the course of his employment, foreseeably exposed to asbestos in Malaysia and Belgium (an perhaps even until he suffered the injury, loss and damage in Melbourne). Had the deceased never made it, as directed, to the factories, his precursory acts would have been left without consequence and the deceased (and the respondent) would have had no cause for complaint.
… The element of causation occurred in Malaysia and Belgium. As a matter of substance, the place where ‘the cause of action arose’ (Distillers) was where the respondent was exposed to the risk, i.e. Malaysia and Belgium. Until that happened there was no ‘cause for complaint’ (Jackson v Spittall). It was at that point that the earlier conduct ‘assumed significance’ (Voth).”[15]
[14]Amaca Pty Ltd v Frost [2006] NSWCA 173 at [44].
[15]Respondent’s written submissions dated 3 August 2006 at [5] and [6].
I do not agree. As their Lordships noted in Distillers, the rule that the act on the part of the defendant which gives the plaintiff his cause of complaint must have occurred within the jurisdiction “does not … provide a simple answer for all cases.”[16] The act of which Mrs Puttick complains is the direction given to her husband to inspect asbestos plants. These, it is true, happened to be in Malaysia and Belgium. If the owners of the plants were being sued, the lex locus delicti would doubtless be the law of the country in which the plant was situated. But the owners of the plants are not being sued. The defendant is a New Zealand company, said to have exercised total control over its New Zealand subsidiary; and it was the New Zealand subsidiary by which Mr Puttick was employed and by which he was instructed to proceed to his inspections of the Malaysian and Belgium plants. The instruction was issued and received in New Zealand. That country is in substance the place where the present cause of action arose. The plaintiff does not allege as against the defendant any act or omission in either Malaysia or Belgium. In any event, as the majority of the High Court said in Voth,[17] “[o]ne thing that is clear from Jackson v Spittall and from Distillers is that it is some act of the defendant, and not its consequences, that must be the focus of attention.” It follows that the law of New Zealand is the lex loci delicti.
[16][1971] AC 458 at 468.
[17](1990) 170 CLR 571 at 567.
I accept that Mr Puttick had no cause of action when he first received instructions to travel to the factories at which he inhaled the noxious dust and fibres. He had no cause of action when he inhaled them, either. He had no cause of action until he suffered injury as a result of having inhaled them. If he had no cause of complaint when issued with his travel instructions, he equally had no cause for complaint when he actually arrived at and inspected the Belgium and Malaysian plants.
The question may be whether he had any cause for complaint before he had a cause of action. However a lawyer might answer that question, a lay person would probably respond that a cause for complaint arose immediately the relevant instruction was given. Whether a complete cause of action in law had been made out would to the lay person be irrelevant. Any employee instructed to undertake on the employer’s behalf a dangerous assignment without any reasonably available measures being taken to avoid or minimise the risk, or warn of it, would complain the moment the truth were known and some kind of protest could be lodged.
At all events, we are here dealing with an issue without substance. Regardless of whether a cause for complaint arose only when the cause of action was complete, the defendant’s (or its subsidiary’s) conduct first assumed significance in New Zealand; and it was there that, in substance, the cause of action arose.
The plaintiff submits that the legislation by which the accident compensation scheme is governed in New Zealand “specifically contemplates and implicitly encourages recipients of compensation to bring claims in overseas jurisdictions.” The argument relies on s.394 of the Injury Prevention, Rehabilitation, and Compensation Act 2001, which provides, in effect, that no proceeding for damages arising out of personal injury shall be commenced in any New Zealand court independently of the Act.
In my opinion, this provision does not encourage litigation in overseas jurisdictions by claimants who are covered by the New Zealand scheme. It does no more than recognise that the New Zealand Parliament cannot prevent claims being made in foreign jurisdictions, and that some claimants will make such claims in the hope that by securing access to the foreign forum they will recover more than would be their entitlement under the New Zealand legislation. In any event, the choice of law question before me is not to be answered by recourse to a foreign law.
For 32 years, New Zealanders have lived with their accident compensation scheme. It is not for an Australian court to pronounce on its inherent merits or disadvantages. Indeed, it would be totally inappropriate to even venture on the exercise. The plaintiff’s submission that it should not as a matter of policy be applied in this Court must in my opinion be rejected.
The scheme plays an important part in the everyday affairs of New Zealanders. It has evolved in the years since it was first introduced. A body of substantive local law has grown up around it. Rights and expectations are created and affected by it. Any interference by a foreign court in its workings might adversely and unjustly, albeit unwittingly, impact upon those rights and expectations. Proceedings involving the scheme should therefore, in general, be heard by New Zealand courts. They will by experience and learning be far better equipped than a foreign tribunal to try such actions.
I take as an example an issue upon which the parties presently differ. Section 22 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 provides that a person has cover for a personal injury if that injury was suffered outside New Zealand on or after a specified date and the person is ordinarily resident in New Zealand when the injury is suffered. Section 37, however, provides (so far as is relevant) that the date on which a person suffers a personal injury caused (as was that suffered by Mr Puttick) by work-related gradual process disease or infection is the earlier of the date on which the person first receives treatment from a medical practitioner for that personal injury and the date on which the personal injury first results in the victim's incapacity. But Mr Puttick was not "ordinarily resident in New Zealand" when he first received treatment for the disease from which he later died, or when that disease first resulted in his incapacity. Accordingly, there is (at least to someone not well versed in the relevant New Zealand law) a real question whether Mr Puttick had relevant cover under the scheme. There is also a difference of opinion between the parties about whether the claim, made in this proceeding, for exemplary damages is one which the scheme will allow to be pursued by a dependent pursuant to the New Zealand equivalent of Lord Campbell's Act.
In Amwano v Parbery[18], Finkelstein J said that, while an Australian action will not be stayed simply because the plaintiff can point to some connection with another forum, ultimately the Court's discretion is to be exercised "based on the competing connections of the respective forums with the subject matter of the proceedings".[19] His Honour went on to state that the resolution of the case before him would depend in part upon the provisions of a number of statutes of the Republic of Nauru. It was, in his Honour's opinion, undesirable for the Federal Court to interpret the statutes of a foreign country – something which should only be done if the Court cannot avoid the task.
[18][2005] FCA 1804
[19]Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 571
It seems to me, with respect, that his Honour’s position is consistent with the objective enunciated by the High Court in Nielson v Overseas Projects Corp of Victoria Ltd[20], namely to avoid different outcomes according to selection of forum. It would be undesirable to say the least were authorities, binding on Australian courts, to materially differ from those applicable in New Zealand where the subject matter was a legislative scheme as important as the latter’s accident compensation scheme.
[20][2005] HCA 54; 79 ALJR 1736.
In my opinion, it would therefore be inappropriate for me to pronounce upon the effect of the New Zealand accident compensation scheme, to the extent necessary for me to grant the defendant's application to strike out the amended writ and amended statement of claim, on the basis that under New Zealand law the claim must necessarily fail. On the other hand, for the reasons I have endeavoured to set out, the proceedings should in my opinion be stayed permanently on forum non conveniens grounds.
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