Puttick v Fletcher Challenge Forests Ltd - [2006] VSC 370

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…

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.

Continue reading Puttick v Fletcher Challenge Forests Ltd

Details

AGLC: Puttick v Fletcher Challenge Forests Ltd [2006] VSC 370
Case: [2006] VSC 370
Decision Date: 13 October 2006

CaseChat Overview and Summary

The case of Puttick v Fletcher Challenge Forests Ltd involves a widow seeking damages for the death of her husband, who was employed by a New Zealand company. The widow, Puttick, filed a claim under the Wrongs Act 1958, alleging that her husband had inhaled asbestos fibres or dust during his employment, while inspecting factories in Belgium and Malaysia, which resulted in his death. The dispute centres on the appropriate jurisdiction and governing law for the claim, as well as the merits of the application to stay the proceedings on forum non conveniens grounds or, alternatively, to strike out the amended writ and statement of claim.

The legal issues before the court included whether the governing law for the claim was that of New Zealand, where the deceased was a citizen and employed, or Victoria, where the proceedings were initiated. The court also had to determine whether the law of the place where the alleged tort occurred, i.e., the lex loci delicti, was that of New Zealand or Victoria. These issues were pivotal in deciding whether to grant the application for the proceedings to be permanently stayed or to strike out the amended writ and statement of claim.

The court held that the governing law for the claim was New Zealand law, as the deceased was employed by a New Zealand company and the relationship between the parties was governed by New Zealand law. The court further found that the lex loci delicti was New Zealand, as the alleged tort occurred in New Zealand when the deceased was directed by his employer to inspect factories in Belgium and Malaysia. Based on these findings, the court decided that the application for the proceedings to be permanently stayed on forum non conveniens grounds should be granted. The court found that it would be more appropriate for the New Zealand courts to hear the case, as the relationship between the parties and the alleged tort were closely connected with New Zealand.

The court's final order was to permanently stay the proceedings on forum non conveniens grounds, allowing the widow to pursue her claim in the New Zealand courts. This decision recognised the importance of considering the international aspects of the case and the need for the appropriate jurisdiction to hear the matter.

Orders