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Puttick v Fletcher Challenge Forests Pty Ltd

Puttick v Fletcher Challenge Forests Pty Ltd

Case [2007] VSCA 264 27 November 2007

Civil Litigation & Procedure

Conflict of Laws

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4564 of 2005

JANINA PUTTICK (AS EXECUTOR OF THE ESTATE OF RUSSELL SIMON PUTTICK)
	Appellant
V
FLETCHER CHALLENGE FORESTS PTY LTD	Respondent

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JUDGES:	WARREN CJ, MAXWELL P and CHERNOV JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2007
DATE OF JUDGMENT:	27 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 264

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Practice and Procedure – whether leave required to appeal from order to stay proceedings on ground of forum non conveniens – whether order is interlocutory or final in nature

Private international law — forum non conveniens — tort — appeal from order to stay proceedings — whether exercise of discretion miscarried — applicable law / lex causae — place of commission of tort / lex loci delicti commissi – omission – failure to warn or provide safe system of work - where risk ‘assumes significance’ – employer New Zealand company – employee claim for damages for exposure to asbestos in Belgium and Malaysia

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr JHL Forrest QC with Mr J Gordon	Slater & Gordon
For the Respondent	Dr CL Pannam QC with Ms L De Ferrari and Dr O Bigos	Freehills

WARREN CJ:

Background

The applicant is the widow of the late Russell Simon Puttick. Between 1981 and 1989, Mr Puttick was employed by Tasman Pulp and Paper Company Limited (‘Tasman’) as a marketing assistant, export assistant and export manager. Tasman is incorporated in New Zealand. That company is a subsidiary of the respondent to this application, Fletcher Challenge Forests Limited (“Fletcher”). Fletcher is also incorporated in New Zealand but is a registered foreign company in Australia for the purposes of the Div 2, Pt 5B.2 of the Corporations Act 2001 with a registered office in Sydney.

Whilst employed by Tasman, Mr Puttick lived in New Zealand. During the course of this employment, Mr Puttick was sent by Tasman to examine various asbestos product manufacturing plants in Belgium (on three occasions) and Malaysia (on eight occasions). For the purposes of this proceeding, it is accepted that whilst in those factories, Mr Puttick inhaled asbestos dust. It is also accepted for the purposes of this proceeding that Mr Puttick, ignorant of the dangers of asbestos, did not avail himself of protection from inhalation of the dust. At some point after 1989, Mr Puttick ceased employment with Tasman and moved to Victoria. In August 2003, whilst still living in Victoria, Mr Puttick developed symptoms of asbestos-caused malignant mesothelioma.

On 14 February 2005, Mr Puttick commenced a proceeding in the Supreme Court of Victoria against Fletcher claiming damages in negligence. On 25 February 2005, Mr Puttick died from mesothelioma. His widow, Ms Janina Puttick, has continued the initial action for the benefit of the estate under s 29 of the Administration and Probate Act 1958 as well as bringing an action on behalf of herself and her children, as dependents of Mr Puttick, under Pt III of the Wrongs Act 1958.

By summons issued…

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 Pty Ltd

Details

AGLC: Puttick v Fletcher Challenge Forests Pty Ltd [2007] VSCA 264
Case: [2007] VSCA 264
Decision Date: 27 November 2007

CaseChat Overview and Summary

In the matter of Puttick v Fletcher Challenge Forests Pty Ltd, the respondent, a New Zealand company, sought to appeal a decision of the Federal Court of Australia to stay proceedings on the basis of forum non conveniens. The applicant, Puttick, an employee of the respondent, had brought an action against the company for damages arising from his exposure to asbestos while working in Belgium and Malaysia. The central issue before the court was whether the order to stay the proceedings constituted a final or interlocutory decision and, consequently, whether leave was required to appeal against it. A secondary issue concerned the application of the applicable law and the determination of the appropriate jurisdiction for the tort.

The court considered the nature of the order to stay proceedings and concluded that it was interlocutory in character, as it did not terminate the applicant's right to litigate the merits of the claim. The court reasoned that the order was not a final decision as it merely deferred the proceedings to a more appropriate forum, leaving the applicant's right to ultimately pursue the claim intact. The court held that leave was not required to appeal from the interlocutory order, as it did not fall within the category of final judgments that typically require leave under the relevant legislation. The court further examined the exercise of discretion by the primary judge in determining the appropriate forum for the proceedings, concluding that the decision was not an abuse of the court's discretion. The court found that the primary judge had adequately considered the relevant factors, including the place of the tort and the applicable law, in reaching the conclusion that New Zealand was the more appropriate forum.

The court affirmed the primary judge's decision to stay the proceedings and dismissed the appeal. The court found no misapplication of the applicable law or error in the primary judge's consideration of the relevant factors, including the place of the tort and the applicable law. The court held that New Zealand was the more appropriate forum for the proceedings, given the significant connection between the employer, the place of the tort, and the applicable law. The court did not find it necessary to determine the substantive merits of the applicant's claim, as the primary judge's determination of the appropriate forum was upheld. The appeal was therefore dismissed, and the order to stay the proceedings was confirmed.

Orders