Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited)

[2008] HCATrans 322

[2008] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M40 of 2008

B e t w e e n -

JANINA PUTTICK EXECUTOR OF THE ESTATE OF RUSSELL SIMON PUTTICK

Appellant

and

TENON LIMITED (FORMERLY CALLED FLETCHER CHALLENGE FORESTS LIMITED)

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 SEPTEMBER 2008, AT 10.05 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR J.R.C. GORDON, for the appellant.  (instructed by Slater & Gordon)

MR A.S. BELL, SC:   May it please the Court, I appear with my learned friends, MR L.G. DE FERRARI and MR R.L. GARNETT, for the respondent.  (instructed by Freehills)

MR BELL:   There has been a change of name to the respondent to Tenon Limited and a consent minute to that effect has been filed in the registry.

GUMMOW J:   What is the name again?

MR BELL:   Tenon Limited.

FRENCH CJ:   Thank you, Mr Bell.  Yes, Mr Walker.

MR WALKER:   Your Honours, the issues in this appeal defined by the grant of special leave for the ground of appeal that your Honours have seen meant that there was one paragraph in our written submissions which was exorbitant, paragraph 57, which is no longer pressed.

CRENNAN J:   Could I ask you in that context, Mr Walker, does that imply any concession by you that if the governing law is the law of New Zealand, Victoria is a clearly inappropriate forum?

MR WALKER:   Your Honour, it implies only this concession, that we do not have special leave to contend to the contrary of that.  Things may have been otherwise but they are not.  The fact is the order granting special leave is for the ground that your Honours have seen which certainly does not embrace challenging the conclusion implicit or explicit, depending upon one’s reading of it, at first instance and in the Court of Appeal, that given the choice of law made by their Honours, Victoria was a clearly inappropriate forum.  I simply do not have special leave to challenge that if the choice of law be New Zealand.

CRENNAN J:   Thank you.

MR WALKER:   In answer to Justice Crennan’s question about a concession, that is not to say that there would not be arguments against that proposition, but I am bound by the grant of special leave.  Your Honours, I hope I have also received a message that my friend’s notice of contention, paragraph 5 is no longer pressed.  That is what might be called the strike out point.  Success on that argument, of course, would require orders different from those which were made in the Court of Appeal.  It is not a contention point.  That has the effect, so far as the issues and argument before your Honours are concerned, of removing very greatly, perhaps entirely, consideration of the New Zealand statute in relation to the compensation scheme in question.

FRENCH CJ:   That takes out 66 to 70, I think, of the respondent’s submissions.

MR WALKER:   It does.  Your Honours, we would wish to commence, if I may, by exposing how, in our submission, the choice of law issue is critical.  At first instance, volume 2 of the appeal book, page 666, Justice Harper addressed the nature of the issues as he saw them in paragraph 15 where, having noted the “clearly inappropriate forum” test that bound his Honour and was the basis of the argument for him laid down in Voth, he noted that of course New Zealand law as the lex causae would not on its own satisfy that test in relation to Victoria.  There is no dispute between the parties about the correctness of his Honour’s self‑direction in that regard.

GUMMOW J:   But no one has pleaded any foreign law yet.

MR WALKER:   No, they have not.  Page 668, paragraph 21, after reviewing factors, whether they be called connecting or not does not matter, his Honour decided that at that point, before he had made the choice of law determination:

New Zealand would be the more appropriate forum; but, at the same time, Victoria would not be clearly inappropriate.

Regardless of our position in relation to the merits of the first part of that holding, which are not before this Court, it is, with great respect, an impeccable way to proceed to say of some, but not all of the factors, that they may tip the balance a certain distance but that distance is not sufficient for the test required by this Court before a stay is granted.

GUMMOW J:   Mr Walker, before we get into empyrean heights, just looking at page 662, what is the significance of the absence of the Tasman Pulp & Paper Company Limited from this litigation?  It was the employer, was it not?

MR WALKER:   It was the employer, whose employees in their work were managed, controlled and directed by the defendant – as I will call the respondent.  That is the allegation.

HAYNE J:   That is the allegation in the statement of claim that we see at page 5.  Is that the last version of the pleading or the relevant version of the pleading?

MR WALKER:   Yes, and in further answer to Justice Hayne, it is in particular at volume 1 of the appeal book, page 6, paragraphs 4 and 5 where the basis for my submission to Justice Gummow, in answer to his Honour’s question where that foundation is found.  In particular, 4(d) “Tasman”, the corporation Justice Gummow asked me about was:

a corporation with no effective independent direction, management and control other than that exercised by the Defendant, its servants or agents.

5.By reason of the direction, management and control . . . over Tasman and over the work of its employees –

and I stress in particular that last phrase which your Honours will see picked up in in particular our written reply submissions.

GUMMOW J:   One does not normally sue holding companies.

MR WALKER:   No, it does happen from time to time.  It happened in CSR v Wren.  It depends entirely upon the facts and I should state at the outset, then ‑ ‑ ‑

GUMMOW J:   The ghost of Sullivan v Sullivan is walking across the stage, is it not?

MR WALKER:   Yes, it is.

GUMMOW J:   It is more than a ghost.

MR WALKER:   I am not suggesting it is dead by any means.  Your Honours will have seen discussion of that very point in the case which is variously called Putt or Hall, another case where the plaintiff changed because of a death - if I may call it Putt, where the very point that Justice Gummow has just raised played a part in the consideration of the question there.  However, in our submission, this is entirely preternaturally a matter of fact.  In our submission, there is no rule of law that corporation A can never owe a duty of care to a person who is an employee of corporation B ‑ ‑ ‑

GUMMOW J:   There are matters of discretion involved here.

MR WALKER:   Yes, your Honour.  May I try to embrace that difficulty immediately.  It follows, the more I stress the peculiar matter of fact in relation to Tenon and Tasman, which is the basis of our pleading with its assumed facts for the purpose of this argument against Tenon, then of course the more I focus attention on New Zealand as a place where many of the facts are located, that is, the facts that make it Tenon and not Tasman who is sued for breach of a duty of care in all relevant respects resembling that of a common law employer’s duty.

GUMMOW J:   Well, I will not go on about this, but it seems to me that the next question then is, where was this direction, management and control exercised?  I imagine New Zealand?

MR WALKER:   Mostly it will be in New Zealand, but it will be everywhere that the employee has worked, which certainly will include from time to time other countries, be they Australia or Belgium or Malaysia.

FRENCH CJ:   You cannot discern that from the pleading though?

MR WALKER:   Your Honour, you can only discern that last matter from the pleading on pages 6 and 7, paragraph 6 and the nature of the particulars on pages 9, 10, 11 and 12 under paragraph 10.

HAYNE J:   If we stay for a moment at paragraph 6 on page 6, does the passive voice obscure that the requirement was made in New Zealand?

MR WALKER:   As usually it does do that, your Honour, yes.

HAYNE J:   But are we to read it as in effect alleging the making of a requirement in New Zealand?

MR WALKER:   Yes.  Now, that is in the making in the sense that that is the place where the Court ought to proceed on the basis that that is the place where an instruction was given and commenced to be acted on.  I say “commenced to be acted on” because obviously it is a direction, compliance with which requires conduct out of New Zealand as well as in New Zealand.  Go on a trip, was the instruction.  He started the trip in New Zealand.  There is no question about that.

On appeal there was a challenge made, not part of the issues in this Court, to the alleged excessive weight given to the choice of law factor by Justice Harper.  That challenge was dealt with in the Chief Justice’s reasons in volume 2 starting at page 769 in the passage continuing for two pages, paragraphs 39 to 43.  I will not read it all.  In the course of that, on page 770 a reference is given to the proper understanding of the words “vexatious” and “oppressive” required by the authority of this Court in Oceanic and Voth and there was refutation or rejection of the then appellant’s argument concerning Justice Harper’s weighting of the discretionary factors in paragraphs 42 and 43. 

It is clear from that that her Honour was holding that it was not correct to say that his Honour had over valued the choice of law.  He had considered it along with the other matters, which he had, as I have noted, regarded without it as not sufficient to supply the test, satisfy the test for a stay.  Then in what is called the “subjective balancing exercise”, together with the choice of law, together with the peculiar nature of the statutory regime in question, decided that Victoria was clearly inappropriate.

GUMMOW J:   Now, these forum applications can be made with support of interlocutory evidence, can they not? 

MR WALKER:   Yes.

GUMMOW J:   Is there any evidence as to who the witnesses were likely to be, where they were likely to come from?

MR WALKER:   There was evidence of a kind which was reviewed by Justice Harper at first instance in a way that we have no complaint about.  It is clear, for the very reasons that I have put concerning the relations between Tenon and Tasman, that there are witnesses and, one might say as well, records which in the nature of things are far more likely to the point of practical certainty to be located in New Zealand than in Victoria or indeed anywhere else.

GUMMOW J:   Is there any evidence about medical experts?

MR WALKER:   There is a finding that the medical question is not likely to be of any evidentiary difficulty in relation to my client’s late husband, that is, his diagnosis, the attribution of it to prior asbestos exposure, is most unlikely to be the source of any evidentiary battle requiring expensive ‑ ‑ ‑

GUMMOW J:   Exposure where?

MR WALKER:   As to the question of exposure and where that exposure was, there was no evidence tipping the balance one way or the other concerning what I will call the location of international experts of the kind which are very often used, not least because they are not actually very common, there are not many of them, in asbestos litigation.  That was not a tipping factor.  I will have this checked, but I think there is no consideration of the evidence of anything that can be measured in a meaningful or useful way for the stay application with respect to evidence of the factory premises in Belgium and Malaysia, but that is in the nature of the plea, obviously; also something which will require exploration.  That, one would have thought, regardless of one’s views of the breadth of the Tasman Sea, is a neutral as between Victoria and New Zealand.

GUMMOW J:   I will be quiet in a minute, but the only other matter I wanted to raise with you was, is there any consideration given of the legislative revisions now made for trans‑Tasman co‑operation litigation?

MR WALKER:   I think the answer to that is, no, none at all.

GUMMOW J:   New Zealand is another jurisdiction, but it is not quite a fully‑fledged foreign country when it comes to the conduct of modern litigation.

MR WALKER:   Yes.  They are more formally cousins than other common law jurisdictions.

GUMMOW J:   In the child abduction case we had last year we looked at the evidentiary provisions, for example, we have with New Zealand.

MR WALKER:   Yes.  Your Honours, I would be bound to accept that any choice being made by an Australian court, according to a test of “more appropriate” in relation to New Zealand, would be materially augmented in favour of those seeking a hearing in New Zealand by the statutory provisions to which Justice Gummow has referred.  They do not stand alone, of course.  The relative physical proximity of New Zealand to Australia is another reason why New Zealand, more than most other jurisdictions which are foreign, would be more likely to satisfy the description of a more appropriate forum than an Australian jurisdiction.  The same is true of the very great, if not complete, similarity of our common laws and the very great, though not complete, similarity of the organisation of the courts and legal professions in both countries, indeed, the shared personnel in relation to some of the professions.

That is only to say that it would help to satisfy a more appropriate test.  None of that, that is, none of the closeness culturally, systemically, formally in relation to evidentiary and other provisions of a full faith and credit kind, none of those matters between Australian jurisdictions and New Zealand as a jurisdiction renders in terms, or by implication, any of the Australian jurisdictions thereby clearly inappropriate unless “clearly inappropriate” has its content supplied by the pure notion of relativity which is conveyed by the comparison “more appropriate” which is not presently the law.  In our submission, it would be to deprive the clearly inappropriate test of any of its intended force and effect to say that something is clearly inappropriate if another jurisdiction is more appropriate or clearly more appropriate.

In short, the law in this area, in our submission, in the practice of the courts below this Court, according to the precepts laid down by this Court, combine to show that there will be many cases in which justice will be adequately or more than adequately served in more than one jurisdiction for one case, and that is a not uncommon situation, particularly one well understood in a federation.

So that, in our submission, once one rejects the notion that “more appropriate”, answered affirmatively for New Zealand, supplies the answer “clearly inappropriate” for Victoria, once one rejects that then, in our submission, the matters that Justice Gummow and others of your Honours have just raised with me, are not matters which can be called in aid under the present law.

Now, can I turn immediately to that question of the notice of contention?  It is paragraph 4 at volume 2 of page 810 which is the one in question, and I am turning to it first because this is, of course, a fundamental matter.  It is to set the terms of the argument, to set the limits of the discourse permitted in relation to the stay, and in that paragraph 4 leave is sought to reopen Voth.

It is clear from the argument that your Honours have read from the respondent – it is clear from the argument, as we put it – without having had the benefit of hearing my friend on it yet – that it is an attempt to persuade this Court that Spiliada is the superior solution to the problem.  In our submission, there are important preliminary steps that have to be taken successfully by the respondent before that could be entertained by this Court.

Now, the conditions – if I may call them that – in John v Federal Commissioner are not a prerequisite in any formal sense, but they are, with respect, badges that one would want to have when seeking leave to reopen an authority of this Court.  There has been no attempt, as we read the submissions against us in this regard, to show that any one of those four has been made out.

GUMMOW J:   I read this as just a more abundant caution submission.

MR WALKER:   And for more abundant caution against more abundant caution, I think we need upfront to say in our submission this is ‑ ‑ ‑

GUMMOW J:   It seems to me if your opponent has to persuade us to reopen Voth in order for him to succeed, he is probably in trouble.

MR WALKER:   I hope so.  We would say that nothing in Imbree v McNeilly [2008] HCA 40 at paragraph 45 throws any different light on the nature of the task faced by the respondent in seeking leave to reopen, but could we pick up and seek to adapt to this case the language at the end of that paragraph. In seeking to ensure that the power of this Court to do justice by shaping the judge‑made law, as it ought to be shaped, not be cramped, with respect, your Honours referred to the necessity to contemplate change necessary, that is change of the judge‑made law:

to maintain a better connection with more fundamental doctrines and principles.

I repeat, the attempt in this case is simply to say Spiliada is a better solution.  In our submission, a rapid recitation of some of the later references to and applications of Voth in this Court, leave aside the innumerable obedient applications of it below this Court, conclusively demonstrates that there is no attempt being made here to show that there are any more fundamental doctrines and principles, a better connection with which is necessary so that Voth ought to be abandoned for Spiliada.  Firstly, in our submission, one could instance what happened in this Court in Zhang, 210 CLR ‑ ‑ ‑

HEYDON J:   Mr Walker, why are we concentrating on paragraph 4 of the notice of contention rather than your ground of appeal?  That is the big core problem in the case.

MR WALKER:   It is, your Honour.  The short answer to your Honour’s question is, in order to put to one side immediately the question of the proper test, if the test ‑ ‑ ‑

HAYNE J:   How does that arise on your notice of appeal?

MR WALKER:   It does not.

HAYNE J:   What are we talking about it for, Mr Walker?

MR WALKER:   If it pleases your Honours better, I will defer this until hearing my friend on the matter.  I am perfectly happy to do that.  In answer to Justice Heydon I should add this, we accept that different dispositions of this case may arise, depending upon what the true test is, even if we are right on choice of law.  If we are right on choice of law then if the test remain as it presently is, Voth, in our submission, from a simple appreciation of the way in which the discretion was addressed by the first instance judge and was vindicated in the Court of Appeal I need, I think, to call in aid Justice Chernov as implicitly supporting the Chief Justice in that regard, but an appreciation of that reveals that if we are right about choice of law then there would have been, or should be, no stay and that the matter can be brought to an end in this Court.

The order that ought to have been made in the Court of Appeal was to uphold the appeal because the matter which turned out to be in the mix, a critical factor turning a merely more appropriate into a clearly inappropriate, would have been wrongly decided and therefore we should succeed.

For those reasons, with great respect, what Justice Heydon puts to me is plainly the direct way home.  If we are right on our one point of appeal, then that is the end of the case and we win.  However, the importance of the appropriate test to be applied emerges as follows.  If we are wrong about Voth remaining the law, if your Honours were to choose, I will call it in shorthand Spiliada, then bearing in mind the ready facility of courts in Australia and one can say in New Zealand and many other countries to apply foreign law according to their choice of law rules, then it obviously is a different question as to whether doubts about or a different result concerning choice of law could nonetheless render New Zealand not a more appropriate forum and that is why the availability of the proper test to be applied is critical, but I will say no more about until after hearing my friend and then only if necessary. 

Your Honours, there is but one question, therefore, critical for our success in this Court and that is to persuade your Honours that the approach taken to the facts assumed by reason of the pleading of particulars to the location of the wrong was correctly approached and with the correct result by the Court of Appeal. 

GUMMOW J:   We need to know what the wrong is first.

MR WALKER:   Yes.  In this case the wrong is alleged in terms of the common law, it would appear of Victoria by silence, of negligence causing personal injury.

HEYDON J:   It is one common law.

FRENCH CJ:   Common law of Australia.

MR WALKER:   I am so sorry.  According to the law of Victoria, which is a combination of the statutory provisions permitting the survival of causes of action and Lord Campbell’s Act cases and the common law of Australia.  I do apologise.  I am bound to point out, however, that this case has been argued both at first instance and in the Court of Appeal below on the basis that the choice of law required the selection of Belgium and Malaysia as the places whose laws should govern as lex causae.  Now, although at first instance that received little if any consideration, that is, New Zealand was largely referred to in the reasons, it is recorded that that was argued.  One sees that in volume 2, page 665, at the end of paragraph 13.

HAYNE J:   For present purposes, is the critical paragraph of the pleading that must be considered paragraph 5?

MR WALKER:   No, that is one of the critical paragraphs.  It is the combination of paragraphs 5, 6 and 10 that provide the material from which, what I will call, the real cause of complaint is to be discerned, accepting as we do that no great reward to what has sometimes has been called the ingenuity of a pleader.

HAYNE J:   Clause 5 alleges a duty to a class, including the defendant, identified as those who might be harmed by failure and who were reliant, and is attached to or seen as flowing from direction, management and control exercised by Tenon over Tasman and its employees.  Is that right?

MR WALKER:   Yes, it is the last three words, in particular, to which we attach – it is the management, direction and control exercised by Tenon over the employees of Tasman which is, in our submission, critical.  To put it in actual terms, for my client’s late husband while he was in Malaysia and Belgium he was as much subject to the management, direction and control of Tenon as when he was in his office in Auckland, if he had an office in Auckland.

HAYNE J:   But it is the control over the work that has the peripatetic aspect?

MR WALKER:   Yes, quite.  So go to the South Island, go to Sydney, go to Malaysia, go to Belgium and while there do the following things and of course these are not places where one is out of touch.  One remains subject to the management, direction and control at all those places.  Now, it is for those reasons that, in our submission, as we put in our written submissions, the fact that it was the particular dangerous premises that enlivened the duty of care so as to require its content from time to time to include proportions and/or warnings about the asbestos exposure, it is that which, in our submission, is the key to locating the wrongdoing in the places where Mr Puttick was exposed to the risk, the place where his relevant interest was infringed – his relevant interest being his safety, his health and safety.

KIEFEL J:   Did the Chief Justice approach the question on the basis that assuming the pleading to be one of effectively failure to provide a safe place or system of work, that in any event any direction that the defendant would have given would have emanated from New Zealand?  The defendant could not in any way be placed in Malaysia or Belgium for the purpose of that and I am misreading her Honour’s ‑ ‑ ‑

MR WALKER:   With respect, I do not think that is a misreading.

KIEFEL J:   How do you overcome that?  Do you say that the giving of a direction to ensure a safe system in another country is not an end of the matter, that you look to where that would be put into effect or do you rely upon damage – damage to the employee – or is it a combination of both?

MR WALKER:   Thank you very much.  I think your Honour has asked for the whole of my argument in answer to a question and it falls out as follows.  No, we do not rely upon what your Honour called damage, as such, but in a case where the breach of the duty results in the harm there and then, so the careless driver who hits the pedestrian, it will be the case that the damage does occur in the same place as the wrong is located for the purpose of choice of law, but it is located not because that is where the damage occurred, but because that is where the breach was significant as the cause of complaint.  That is why it is of no moment that a person who is injured in Wodonga is immediately taken back to Albury for treatment and convalesces in Brisbane.  It is the place of the wrong is Victoria.

HEYDON J:   But you do not know what the wrong is until you know what the law of the place where some events took place.

MR WALKER:   Your Honour, with respect, that is a matter, to put it neutrally, which is not thrown up or confronted by the pleading and is not, I think, on my understanding of the reasons in both courts below, discussed.  I wonder, if your Honours would excuse me, if I could try to attend to what Justice Heydon has raised and then return to the course of my much more comprehensive answer to Justice Kiefel.

HEYDON J:   Yes, I apologise for interrupting your answer to that question.

MR WALKER:   Not at all. 

GUMMOW J:   Is this a matter of characterisation?

MR WALKER:   It is, and it is the acute question ‑ ‑ ‑

GUMMOW J:   Is that a matter for the forum?

MR WALKER:   It is the acute question of when you do it.  Now, in many ways, the parties in the way the argument fell out below bring us to this position.  What looks for all intents and purposes like a claim governed by Victorian statutes, including statutes as to survival of cause of action and as to the right of dependence, Lord Campbell’s Act, and otherwise in accordance with the common law of Australia, that is, asserting negligence, that.....duty of care of breach of the reasonable standard of care, was from the beginning of these applications being argued treated as one where a live question was raised on the face of the pleading, particularly paragraphs 5, 6 and10, whether in fact it was, according to the private international law of the common law of Australia, a foreign tort in the sense that the wrong was committed, that is, there was a locus delicti, in this case perhaps loci delicti, outside the forum. 

Now, that, in our submission, is an appropriate time at which one considers whether that question is raised.  Unfortunately, it has the immediate effect of rendering the pleading, perhaps not entirely appropriate but not completely accurate, as to the way in which the claim is put.

As it happens, by sheer happenstance, the law of Malaysia properly yields a pleading pretty similar except for the questions of survival of cause of action and Lord Campbell’s Act that simply have not received attention in the discussion of this case hitherto.

HAYNE J:   The Lord Campbell’s Act and survival of causes of action, et cetera, were confronted by the Court in Koop v Bebb 84 CLR, particularly at 629, were they not?  The analysis there made was, was it not, that the Victorian Act then in question, the Wrongs Act and Lord Campbell’s Act provisions gave a “Right of action in Victoria” whenever the condition was fulfilled, that the deceased, if he had survived, would have been entitled by the law of Victoria, including its rules of private international law to recover damages from the act, neglect or default, et cetera.  So the references to the implications of the statutory law of Victoria are essential for the maintenance of the cause of action but distracting, are they not?

MR WALKER:   That is why they play no part in my argument.  They are critical to understanding what we pleaded.  We relied upon the Victorian statutes.  We cannot pretend that is not true.  It is not a purely common law cause of action – it is doubtful whether there is ever any such thing nowadays, but otherwise, with great respect, the way Justice Hayne has put it is our position about those statutory provisions.  They are essential to be noted.  They are not material to our choice of law argument, or to the question of the pleadings’ appropriateness in relation to that.

HAYNE J:   But the foundation of the argument of those moving for stay was that if you take the pleading on its face, it is evident that ‑ ‑ ‑

MR WALKER:   This is New Zealand?

HAYNE J:   The lex causae is other than Victoria?

MR WALKER:   No.

HAYNE J:   No?

MR WALKER:   That was only the first step they took.  They wanted the second step in particular that it was New Zealand, why they wanted New Zealand, because after all we are saying it is not Victoria.  Now, I know there was an argument at an earlier stage by which we said it was Victoria ‑ ‑ ‑

HAYNE J:   They wanted to say New Zealand because the only facts alleged on their face seemed to have location in New Zealand?

MR WALKER:   And obviously, New Zealand gives them advantage – this is no criticism of them at all – that they say they have an argument which puts paid to any claim beyond statutory payments.

HAYNE J:   The answer you make is that exposure occurs in Malaysia or Belgium, and that the holding company of the employer at least could have issued an instruction immediately before entry into those factories.  Is that right?

MR WALKER:   Yes.

HAYNE J:   You say, should have, but also does it not follow, on this argument, that the holding company of the employer both could have, and on your argument, should have issued such an instruction before departure from New Zealand?

Your Honour, there is no doubt, as one sees from the approach of the Privy Council in Distillers, that where an omission to warn or to find out about precautions – and there is no magic, we submit, about the difference between warning and other precautions – is alleged, commonsense and experience of the world tells you that there may be a number of different places and thus a number of different law districts in which that which was not done might have been done.

HAYNE J:   That is why I injected the “should have” aspect of the proposition at both levels, Mr Walker.

MR WALKER:   Yes.  Your Honours will appreciate that I am now right hard up against trying to avoid promulgating as a rule last opportunity.  Having noted that that is the danger I am now courting, I am bound to say in answer to Justice Hayne that in the all‑important conversion from “could have” to “should have”, in our submission, the place where the risk in question might come home, if there is not compliance with duty, selects itself from amongst all the places where something could be done as the place where it should be done and, if necessary, you add the phrase “if it has not already been done”.

If that partakes of last opportunity, then I have to live with that and submit that in fact “last opportunity” should not be seen as some derogatory slogan which damns an argument completely.  It often, in our submission, satisfyingly answers the expectation of the parties that it is the place where their respective positions bring them into meeting – intersection, interaction - to the detriment of the plaintiff by reason of the conduct of the defendant, which is the place of the wrong.

HEYDON J:   I am sorry for interrupting you, Mr Walker.  It seems to me a lot would depend on the precise facts.  The deceased first went overseas when he was 20 or 21 years of age.  If he were accompanied by some senior officer of Tenon or possibly of the subsidiary of Tenon, that might be different from circumstances in which he and others were sent over without any senior officer.  In the latter case, perhaps there should have been a thorough set of warnings in New Zealand.  If, on the other hand, they are going from place to place, sometimes coming very near points of danger, it would perhaps be sensible to expect a duty to be fulfilled just before they got near the machinery that was creating the asbestos dust.  We do not know from the papers, do we, what the facts are?

MR WALKER:   No.

HEYDON J:   I mean, the pleadings do not reveal it, but is there anything else that might reveal more detail?

MR WALKER:   No.  I think the facts certainly reveal that he was managerial rather than menial.  He was by no means menial.

HEYDON J:   At the age of 21?

MR WALKER:   At the age of 21, no – at the relevant ages; at the relevant times, though, which went over seven years.

HEYDON J:   The relevant times began in 1981.

MR WALKER:   It began and then continued until 1998.  He was not being sent abroad because of his lack of capacity to contribute to the enterprise; to the contrary.

CRENNAN J:   May I ask you this, Mr Walker?  Sorry if you have not finished your current answer.

MR WALKER:   No, just pausing there, your Honour.

CRENNAN J:   I wanted to ask you whether you were putting the case the same way in the Court of Appeal as you were describing it to Justice Hayne just before and in that context wanted to direct your attention to paragraph 21 of the Chief Justice’s decision.  It is on page 761 of the appeal book, volume 2.  The Chief Justice there is considering the particulars both in relation to providing an unsafe system of work and also providing inadequate warnings and she says, and I would like your comment on this that:

the applicant cannot point to an act committed by the respondent in Belgium or Malaysia ‑ ‑ ‑

MR WALKER:   This, in our submission, is to confuse the question of the location of a wrong, which is the ultimate question given lex loci delicti as lex causae, with the physical or other relevant presence of a legal person in a place described geographically.

CRENNAN J:   She is focusing on acts which is, in a sense, the passive voice point that was made before in relation to management and control.

MR WALKER:   The difficulty is that this Court and, with respect, none of the other courts whose work this Court has considered in this kind of argument have ever regarded the location of an act as requiring, let alone being determined by, what I will call the physical location of a person.  The act is an act which has legal significance and where it can be seen as omission, which is at the heart of the problem we confront, that is, we the panel confronts, as discussed by this Court in Voth and as we wish to argue in this case, it is even less appropriate to insist that the location of the omission somehow ride with the actual physical location geographically of the party; not least because, for example, it may be that the omission in question was not to alter your location, not to accompany someone, not to go and do something. 

But this is not a difficult or vexed philosophical question.  It has been practically answered time and time again in another tort, different but with some similarities for the purpose of the conceptual analysis, liable or defamation, the act in question, as this Court emphatically demonstrated, with respect in Gutnick occurs in a place notwithstanding the complete absence of anything in the nature of physical location in that place of the party liable for the liable or defamation.  That is because, understood in its legal context for that tort, the act in question was publishing on the internet basis.  It is the downloading, not the uploading.

I wonder if I could, as it were, rest my answer to Justice Crennan with a proposition that paragraph 21 in the Chief Justice’s reasons at 761 of the appeal book is, with respect, wrong because it regards the question, “Where did the defendant act in relation to failing to provide a safe system of work and failing to warn of the dangers of asbestos dust?” as concluded by the proposition that the company was not in any relevant sense in Belgium or Malaysia.  Now, I have to say “in any relevant sense” because in many ways the company was in Belgium and Malaysia by Mr Puttick himself, but that is a by the ‑ ‑ ‑

KIEFEL J:   Do you rely on the continuing obligation of the employer to take it into the countries?

MR WALKER:   Absolutely.  The continuing obligation of the duty of care in this case is something that we have tried to pick up in our written reply.  What will be required by the duty of care pleaded in paragraphs 5 and 6, what will be required will change from time to time and place to place.  It will change from time to time because, for example, as is notoriously the case, of the growing appreciation of the dangers of a toxic substance such as asbestos.

It will change from place to place, and I do stress “place to place” because different places may very well pose different dangers, particularly if they have different national regimes for safety regulations of toxic substances such as asbestos and it is for those reasons that whether you are sitting in a head office in New Zealand or whether you are chaperoning your works inspectors, such as Mr Puttick, that is physically side by side with him, it requires an appreciation of the conditions in the potentially dangerous location which then determines what you have to do, if anything.  In other words, if we are using common law reasoning, whether there has been a wrong, a neglect, by failing to say something or do something before somebody enters particular premises.

KIEFEL J:   Which is to say that the employer is still in the position to protect the employee but does not do so?

MR WALKER:   Quite.

KIEFEL J:   How do you distinguish that from the last opportunity doctrine?

MR WALKER:   Your Honour, in truth, I think only by semantics.  It is very difficult to avoid that in cases of continuing duty the notion of a last opportunity is unavoidable.  There comes a time when it is too late because the thing has happened.  It is very difficult for me to argue that because of the contumely that has been heaped on last opportunity it is very difficult for me to argue that we are not having anything to do with it.  The truth is, it will be significant and it ought to suffice for me simply to say it is not an inflexible rule.

GUMMOW J:   Yes, but the disapprobation of last opportunity is in quite another context, is it not?

MR WALKER:   I am so sorry, your Honour?

GUMMOW J:   The disapprobation visited upon notion of last opportunity has been in quite in a different context, has it not?

MR WALKER:   Mostly, yes, but it has been adopted, I am bound to say, in some choice of law or locating wrongdoing analyses.

GUMMOW J:   Has it?  I am not denying it, but I am ‑ ‑ ‑

MR WALKER:   This is perverse for me to be looking for authority against me but I think – and there is nothing binding, obviously.  May I take that on notice?

GUMMOW J:   Yes.

MR WALKER:   There is a comment somewhere at the back of my mind, your Honour, that suggests that there should not be use of last opportunity.  What I am submitting is, as a phrase it may now drag all this derogatory mist with it but as a commonsense analysis of a position, particularly with a continuing duty, where there may be many times and places where you can, for example, train staff, it would be, in our submission, idle and quite misleading of the real relationship between the parties to say that the first time that you have the orientation or induction course for your staff is the time and place where you breached the duty to warn them about the circular saw and to ignore the time and place years later where the untrained workman is brought into dangerous proximity to the circular saw.

In our submission, in a case like that, of course he or she could have been, and in a moral sense should have been, trained at the first moment but the duty to warn to protect from the danger continued, because not satisfied, and in our submission its time and place of breach – its time of breach supplies the natural place for place of breach, place of wrong, that is where the cause of complaint arises.

Of course, in an ordinary colloquial sense you have a cause of complete that for years and in many different places you have not been told that such and such is poisonous or such and such should not be done, but the cause of complaint that is of legal significance, and this is all in the context of locating a tort for the purpose of choice of law rules because something has happened giving rise to a claim which is disputed, that place, in our submission, is where finally the continuing duty when breached infringed the relevant interest of the plaintiff in his or her health and safety.

FRENCH CJ:   Do you rely upon all of the particulars of negligence in paragraph 10 as matters which we should treat legally as reflecting wrongs occurring in Belgium and Malaysia?

MR WALKER:   I cannot say that all of the particulars either compel or even indicate Belgium or Malaysia, but taken as a whole there is more than enough to supply location of the wrong in the sense I have tried to answer in response to Justice Crennan and Justice Kiefel.  To finish my answer to Justice Crennan, in particular in paragraph 21 the Chief Justice below, in our submission, does not supply any explanation as to how it can be said that there was a failure to provide a safe system of work in New Zealand in relation to asbestos in Belgium or a failure to warn about dangers in Malaysia by an act wholly and only located in New Zealand. 

Once it is grasped that many duties, and therefore there breached the delict, can be brought about in ways that might have been avoided by actions in different times and places beforehand, then one is left with the familiar question, but which one is significant in law, and bearing in mind the phrasing which, in our submission, this Court requires to have regard to, that is, cause of complaint, that will be, in our submission, where the ocean liner and the iceberg meet; where the breach gives rise to the cause of complaint.

HAYNE J:   Recognising that last opportunity rules have had at least a bad press – see particularly Alford v Magee 85 CLR 437 – the treatment of it in there is, as we all know, very extended.

MR WALKER:   If I may note, that is, of course, one of the contexts that Justice Gummow was referring to, which is a different one from the present one.

HAYNE J:   Exactly so.  But what I am inviting attention to is whether the extended treatment in cases like Alford v Magee of the doctrinal infirmities attending the last opportunity doctrine and the consequent doctrinal infirmities that the notion that contributory negligence was a complete defence, do not at least point in a case of employment ‑ or here where you have this added difficulty of the holding company being injected ‑ do not at least point to the fact that when you are concerned to locate where the employer ‑ or here the holding company ‑ should have acted but did not?  Yes, you may recognise that that company might have done so as late as that known constat that where that company should have acted is at the place of employment ‑ here, relevantly, New Zealand. 

MR WALKER:   Quite so, your Honour.  One way, your Honours, that we would put this – I hope this is not regarded as facetious – is that whatever might be said by way of criticism against a so‑called last opportunity approach it has to be a lot better in answering the expectations (a) of the law and (b) of the parties in what is, ex hypothesi, an injured person and a wrongdoer - that is what we are talking about.

It has to be a lot better than a first opportunity rule because the first opportunity may be one of many and, by definition, did not cause any harm.  The training could have happened back then, but did not.  If it had happened then it might have avoided the harm.  So that, in this case, New Zealand certainly is the first opportunity and probably the second, third, fourth and fifth.

But bearing in mind that the concern with safety, particularly, in our submission, acutely raised when you are sending somebody to premises that you do not control, we call that in aid.  That is not a weakness in our argument.  Where you are requiring that to be done for your profit, where you want information and observations to be brought back so you are sending somebody – you know that you are sending them somewhere else - for the same reasons that the courts have held that when you know you are sending your export goods abroad that your negligence is located in those places abroad where they are bought without a warning, so in our submission when you send your workers abroad for a reconnoitre, as it were, it is in the places where you are intending them to expose themselves to whatever is there and where you are either careless as to inquiry or careless as to response, that in our submission is satisfyingly according to the expectations of civilised conduct, the place which supplies the answer to the question, the place of the wrong.  Then our choice of law rule says, and that is therefore lex causae.

Why I say satisfyingly fulfilling the expectations of civilised conduct is because it is after all in those places where not merely the plaintiff, but everyone equally exposed to those kinds of risks are regulated by the law of the sovereign of that place in their conduct.  So, in our submission, for the reasons, with respect, convincingly demonstrated by this Court in Pfeiffer geography helps to supply an answer to how do you locate a wrong, particularly when it is or is partly to be seen as an omission, just as it does supply the call for certainty, which was why geography was availed of by this Court in Pfeiffer. Before I come to matters of, frankly, analogy, may I say this about the matter ‑ ‑ ‑

GUMMOW J:   I am not saying this derogatively, but are you seeking to attract us to a most significant relationship theory?

MR WALKER:   No.  But the word “significance” ‑ ‑ ‑

GUMMOW J:   Reflecting section 145 of the Restatement (Second).

MR WALKER:   No.  It would appear that the American approach very much involves highly particular and circumstantial considerations which will include matters of prior or continuing or subsisting relationship between the parties, which will bring in in its train matters that my opponent wishes to advert to, such as accessory choices of law where there is a contract, for example.  In our submission, all of that is to move in a direction decisively not chosen by this Court when it held against flexible exception in Pfeiffer, repeated in Zhang.  That is not to say that what we seek to persuade this Court to does not look to significance.  The reverse is the case.

As your Honours know, no doubt to the point of tedium, we have repeated the verbal formula from Voth.  We submit that it is Belgium and Malaysia where the omissions of this, I will call it quasi‑employer, assumes significance.  That is where the premises were that had the material which has lead to his injuries and death.  If he had never been to those premises there would be no cause for complaint in the legal sense, however much one might be bitter and critical of an employer who did not sufficiently care to find out about the dangers you were being sent into.

For those reasons, in our submission, the notion of “significance” is at the very heart of our argument, but not in the restatement sense, we think, because we read the restatement sense as being ‑ ‑ ‑

GUMMOW J:   One problem with the restatement ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ germane with the proper law of tort approach.

GUMMOW J:   The American cases indicate, really, you have to try the case to find out what the governing law is, because the facts get so complicated.  That cannot be a good way of ‑ ‑ ‑

MR WALKER:   Yes, and in the present context for a permanent stay application that is worse that useless, yes.

HEYDON J:   Is there anything in the papers that can assure us that Belgian law and Malaysian law do not contain any bombs in it which are adverse to Mrs Puttick?  We must not have a debate that is entirely academic.  We must have some confidence that if you won, she would be better off.

MR WALKER:   Malaysian law I think I can answer decisively, yes, on the material in the appeal book.

HEYDON J:   Common law based?

MR WALKER:   Yes.  That does not mean there will not be a lively argument, factual and legal perhaps, about the matter with which your Honours started with me, namely, the holding company as defendant.  The answer to Justice Heydon’s question is no, no bond there.  The Belgian expert’s material, on the other hand – and I do not express this by way of criticism of anyone involved – is not quite so clear and it may only be because it is not quite so familiar.

KIEFEL J:   Its law of delicts follows generally French law, but you would have to ‑ ‑ ‑

MR WALKER:   Yes, and by and large, that law would not concern us.  Can I simply point out one problem.

KIEFEL J:   It would be the statute law that would be of concern to you, though.

MR WALKER:   I am sorry, your Honour.

KIEFEL J:   It might be the statute law or how they incorporate EC directives that might concern you.

MR WALKER:   Yes.  There is a discussion of the Belgian limitation periods in volume 2, starting at 515.  I will not dwell on it.  The one matter, in answer to Justice Heydon, that I confess might cause a flutter in us is at page 517, paragraph 18.  It would appear to be a strict sine qua non problem.  I only raise that because of something which is by now very familiar in this country and I think also in the United Kingdom and the United States and Canada in relation to asbestos claims and that is that, subject to more or less de minimis matters, all exposure of the relevant kinds of fibres are medically considered and seem to have been time and time again factually accepted by trial courts, upheld by appeal courts, as materially contributing to the fatal outcome.

FRENCH CJ:   There has even been a one‑fibre theory, that is, that a certain proportion of the population just picks it up from background exposure without going to a particular site.

MR WALKER:   Unquestionably so, all of which informs the notion of cumulative exposure, everything materially contributing.  That may only be because, in the nature of things, legal disputes should be decided in a way that does not offend one’s sense of ordinary justice and the notion that an array of asbestos defendants could all of them escape because the plaintiff, or usually the plaintiff’s survivor, the dead person’s survivors, cannot say whose fibres caused the disease, has been rejected time and time and time again by an approach which does not need to call in aid the English approach in Fairchild.  It is suffice to note that in this country a cause, that is, a material contribution renders someone liable.

Now, a question arises as to whether, what I will call that March v Stramere approach, is any different from the Belgian sine qua known approach where you take out the posited culpable exposure and ask, would you be in any different position?  Your Honours immediately see the problem.  In many cumulative exposure cases, medically it would be impossible to say, well, without the James Hardie exposure, the Royal Australian Navy exposure would still be sufficient to have brought about this.  Normally, in Australian cases that means both are materially contributing.  Question, in Belgium, does it mean, as it were, if they are separately tried or even tried together they both get off?

Now, I think the answer to Justice Heydon’s question is, this has not been explored below.  Justice Heydon asked for assurance and, with respect, for reasons which we are very concerned with, not an academic question, but a question about the wellbeing of my client and her children.  The answer seems to be that no alarm is expressed in the Belgian expert’s evidence about what would appear to be a monstrously unjust anomaly emerging whereby more than one exposure can bring about the disease, then none of the exposures render anyone liable.

KIEFEL J:   Mr Walker, it is not entirely clear from the expert’s declaration whether or not he has had regard to any specific Belgian code provisions or other provisions with respect to employment, and many of which might come from EC directives and any directives or matters dealing with asbestos or harmful products.

MR WALKER:    Yes, though there is the familiar – I was about to say French, I will call it civilian proposition that rather than concurrent liability contract prevents delict; where there is contract there cannot be delict, and you will see that referred to in paragraph 10, because that does not trouble us, for once it being a holding company means we are not troubled by that.  But, with respect, Justice Kiefel’s observation about what is not in the report is correct.  I think those words in principle are intended to refer to uncited articles of the code.  It is not judge‑made law.

CRENNAN J:   Of course, one practical problem in relation to the place of the tort being where the damage occurred is, I would be assume, medically would not be possible to tell whether the damage arose out of the Belgian exposure or the Malaysian exposure?

MR WALKER:    Yes, and that is one of the many reasons why where damage occurs, we submit, however fascinating it may be for molecular medicine, is of no practical moment for our choice of law.  We disavow damage as the legal concept whose location locates the wrong.  I stress, in many cases such as the frank collision between car and pedestrian, it will be obvious that damage occurs at almost exactly the same time and certainly the same place as the wrong.

CRENNAN J:   In terms of the locutions you have been using, we could talk about where the risk actually crystallises.

MR WALKER:   Yes.  Could I suggest, with respect, that the way this Court spoke in Pfeiffer provides support for what Justice Crennan appropriately calls my “locutions”. At 203 CLR 503 at 536, paragraph 75, picking up these words from the third line:

reliance on the legal order in force in the law area in which people act or –

an important word –

are exposed to risk of injury ‑

With great respect, there is prescience there as to the problems raised by locating, among other things, omissions.  If you are exposed to risk in a place by somebody’s omission, in our submission, that is at the very heart, fundamental to the justification in this Court for our choice of law rule, lex loci delicti.  So my answer to Justice Crennan’s question is yes.

Could I try to go back to Justice Heydon’s question concerning what might be regarded as the characterisation question of the nature of the claim, bearing in mind that it exists or not according to the choice of law.  There first has to be something which may be posited perhaps to be a foreign tort in order for the inquiry as to choice of law to be made at all.  That much was raised in this case by the ex facie allegations in the pleading and the particulars to which we have gone. 

Next, if we be correct that the place of the wrong is where my client’s husband was exposed to the risk, then that is Belgium and Malaysia.  May I note that I am saying Belgium and Malaysia, notwithstanding our materials occasionally use the barbarism “Belgium and/or Malaysia”.  I cannot justify the alternatives except by a theory of the case which would be impossible ever to prove factually, namely that it was one but not the other where the fibres ‑ ‑ ‑

GUMMOW J:   Is there an incidental question as to how Belgium, on one hand, and Malaysia on the other, treats multi-state torts?

MR WALKER:   There is, your Honour.  Now, that is like, in some regards, but is not the same as, a renvoi question.  Alas the record in this case, your Honours are familiar with that, the same was true in Neilson, does not show evidence going into the private international law relevant to this case either of Belgium or Malaysia.

GUMMOW J:   I suppose what I am asking is we do not know how they deal with the Fairchild problem?

MR WALKER:   No, we do not.  Precisely we do not. 

GUMMOW J:   Or if we have ever faced it.

MR WALKER:   Yes.  Both in answer to Justice Gummow and in response to Justice Heydon’s concern that I not appear to put an academic argument for real people with real problems, one thing we do know is that there is prospect under Malaysian and Belgium law that those opposed to us say there is no prospect, indeed, to the point that everything should be struck out under New Zealand law.  Now, that is, for the reasons we have put in opening, not a matter for this Court, but as between the parties to this Court we are entitled to have very considerable fear that New Zealand will never be better for us than anything else.  That is all I can say, I think, in completing my answer to Justice Heydon.

I am conscious I am really putting the whole of my argument in answer to Justice Keifel’s first question.  Could I attempt to draw to attention some observations in the authorities, not binding for this argument, but, in our submission, highly evocative of a decision in our favour.  I have already drawn to attention paragraph 75 of Pfeiffer, in our submission, a conclusion in our favour for the reasons we have put in our submissions would be wholly in accordance with that formulation.  Could I also draw to attention what was put in Pfeiffer 203 CLR 503 at 538 and 539, paragraph 81? It is to be recalled this is the case that changed the law to lex loci delicti by abolishing double action ability. At this point in the court’s reasons there are preliminary, prefatory or some governing matters being noted:

Before turning to the question whether the common law choice of law rule should be the lex fori or lex loci delicti, it is necessary to recognise that the place of the tort may be ambiguous or diverse.

It is the last two words that we particularly draw to attention in this current context, “diverse” meaning plural and different.  Now, we put this by way of an anticipation of an argument you have seen in writing against us.  How absurd, it is submitted, that one could have a solution which could come up with Belgium and Malaysia.  Now, one answer to that is, but by our law – that is the same law that devises these choice of law rules in a decision which recognises “the place of the tort may be diverse” – what is wrong with saying that wherever, to use our language, the defendant materially contributes to the plaintiff’s loss by breaching a standard applicable in the place where that material contribution is made?  What is wrong, what is contrary to the expectations between the parties and of civilised conduct that the defendant be held to account by the laws of those places?

Now, it will not happen very often, but there will be different places, that is, diverse places of the tort, because it still remains the case that discrete actions tend to produce discrete consequences producing a legal dispute about compensation, for example.  But in cases that have to be grappled with because they are medically and physically real of accumulating exposure to toxic substances, for example, where there is a continuing breach of duty over many years and perhaps over a number of different places and when one considers internationalised forms of labour hire, that will become more, not less frequent, one images, until we all have to stop flying, then, in our submission, the only question that arrises is, given that this Court in setting lex loci delicti considered that there may be diverse places of the wrong, why is it an objection that diverse selection of law might follow? 

This does not show absurdity.  This is precisely what this Court considered might arise in particular cases and then we ask, and what is so wrong about it in a case like the present?.  After all, the worst thing that can be said against us, as if it were a sneer like forum shopping, is that we would get to pick the best remedy.  In a choice between victims and wrongdoer, that is entirely satisfying as an outcome and it is in accordance with the common law approach in many instances of which Armory v Delamirie is but the most obvious.

MR WALKER:   It is the ground of appeal in the draft notice of appeal for which special leave was granted, your Honour.

CRENNAN J:   Is this your paragraph 57 which you are not pressing?  That is where the point is in your argument, is it not?

MR WALKER:   Yes, it is simply outside our grounds of appeal.

HEYDON J:   Would it not be an element of re‑exercising a discretion if you – the present position is you have lost on foreign law?

MR WALKER:   Now, your Honours will recall how I put it.  We go back and see that the trial judge put together all the so‑called connecting factors – the Court of Appeal does not seem to have departed from his Honour in that regard – and said, well, without choice of law, that is not going to be enough, no stay.  So we say, and I hope not too neatly, it seems to be logical, well, if that is not a disturbed view or that is not a view that this Court would disagree with, if we are right on choice of law, then the situation is straightforward for this Court without, as it were, having to do things from the ground up.  It can observe that that was not a sufficient position for there to be a stay.

HAYNE J:   But can I just understand, if you fail in demonstration of the ground of appeal at 803 ‑ ‑ ‑

MR WALKER:   Yes.  That is my only ground.

HAYNE J:   You fail, in particular, if you do not show wrong choice of law.

MR WALKER:   That is why I hope I made it clear in my opening this morning, this all depends on wrong choice of law.  That is the way it turns out, your Honour.  Your Honours, could I come to the next point in relation to the so‑called pre‑existing relationship or the contract point.  It is not the case, with respect, that the way Justice Sheller dealt with this matter in Putt’s Case casts any adverse light on the way in which the case is pleaded and upon which the stay was adjudicated.  So much is crystal clear from Justice Sheller’s appreciation of the radical distinction between the case before him and CSR v Wren. 

Could I take your Honours in 43 NSWLR 554 to page 579 where you will see between about letters E and G a paraphrase of the nature of the case which had been put in Putt and you will see that is what I will call “corporate dealings”.  They are head office dealings.  It had to do with the defendants influencing or controlling the employees “board of directors so that it could be said that” et cetera “complied with requests and obeyed instructions”.  There is not the direct link to the employees at all.

His Honour, understandably, therefore, at letter G – and I say this about the way in which the issue had been joined and argued in that case – that that seemed to be, notwithstanding Mr Jackson’s protestations to the contrary, really, the shareholding control.  Hence, of course, the importance of Salomon v Salomon, et cetera, and, with great respect, we were joined with our learned fiend in commending the learned discussion but, with respect, it does not matter for this case because when one passes over the learning to page 583 between letter C and D, your Honours will see the distinction between CSR v Wren and Putt was very clear to Justice Sheller.  I will not read it but your Honours will see just below letter D:

They, as employees of CSR, directed or controlled the system of work and the working conditions on the factory floor.

That is the resemblance between CSR v Wren and our case.  The work of Tasman’s employees was managed, controlled and directed by Tenon.  It is not an influence at a board level, it is not an inference by, as I say, the explicit or implicit threat to convene an EGM and change the directors.  In our submission, there is absolutely nothing in that point which in any event is not really an issue before this Court.  It may or may not be a defence point, but it is not a point which was appropriate to be dealt with on a stay.  It is not found in any of the reasons below.  There are no facts to bring this case within Putt rather than within Wren and the pleading resembles Wren not Putt.

My learned friend took a point about paragraph 7 of the pleading in order to locate the wrongdoing in New Zealand because that, it is to be supposed, is where corporate knowledge was.  Of course knowledge is not necessary for the liability, although it may be necessary or useful for exemplary damages.  Elsewhere in the pleading your Honours will have seen the familiar formula “knew or ought to have known” with respect to risks and the particulars under paragraph 10 do include explicitly failures to investigate conditions in Belgium and Malaysia.  I instance in particular paragraphs (e), (o) and (p) of the particulars under paragraph 10.

My learned friend said a number of times that this case was really like Voth in order to say it was not really an omission case.  There are a number of ways, no doubt, of reading Voth. May we respectfully suggest that at 171 CLR 568 point 9 what their Honours are saying, introduced by the word “strictly”, is that that was an omission case and that is how they proceeded to deal with it and that is why the famous discussion about omissions and the impossibility of locating them, but the need to do so in law, then follows. So, yes, it is like Voth but, no, it is an omission case.

Had the pre‑existing relationship, being the so‑called contract, whether by way of a so‑called accessory choice of law rule or not, had that been the proper approach of the common law to the location of wrongs in cases like this, it is in fact difficult to understand why in Neilson the proper law was China because in Neilson there was a contract entered into, probably in Victoria, and Mrs Neilson had entered into an engagement to Act as a personal assistant.  In our submission, that pre‑existing relationship, accompanying spouse, herself with a job to do, going to China under a contract, which of course provided the accommodation as well as the work, it never occurred to anybody, least of all those appearing for Mrs Neilson.

Similarly in Pfeiffer.  In Pfeiffer the pre‑existing relationship, the contract of employment, was in ACT, but it did not occur, certainly to those arguing it, but there is no trace of it in the reasons, it did not occur that that was, therefore, a wrong which was committed in the ACT rather than New South Wales.  Pfeiffer presented the vehicle it did for the change of law under the influence of the Constitution which it did precisely because the place of the wrong was New South Wales, in other words, not the place of the forum which was ACT.

My learned friend refers to the problem of the so‑called gap.  Your Honours will have noticed another gap that is there is no mention of that at first instance or in the Court of Appeal.  It is not a matter that was pressed upon either of the courts at all.  In our submission, it is of great significance that a matter of that kind which has to do with the difficulty of joining a company about which the evidence was that it had somehow been amalgamated into or merged with something Norwegian, it is of significance that my friend does not rely upon any actual evidence, as opposed to speculation concerning any difficulties that there might be in joining that company.

Of course, bearing in mind that once upon a time they were holding company and subsidiary, there were other speculations that could be offered and ought to await the event, such as the same insurer.

HEYDON J:   When the subsidiary was sold, did that event take place after the institution of these proceedings?

MR WALKER:   No.

HEYDON J:   It was sold before the proceedings began?

MR WALKER:   I am not quite sure that “sold” is technically the right expression, but when it passed from being a subsidiary I think was considerably before these proceedings were commenced.

HAYNE J:   It is 30 July 2000.  See 294, paragraph 21 and it is described as a sale of the paper division.

MR WALKER:   Yes, but as your Honour appreciates, sale of a paper division ‑ ‑ ‑

HAYNE J:   Including Tasman.

MR WALKER:   There are lots of ways in which that can be done.  I do not that we are simply talking about sale of shareholding, it does not matter if we are or not.

HAYNE J:   Tasman became via a series of amalgamations and name changes, the Norwegian named company.

MR WALKER:   Yes.  There has been reference made in relation to the nature of mesothelioma and its causation by asbestos inhalation to a number of cases, including Saunders and Vero in the New South Wales Court of Appeal.  Each of them, both Saunders back in 11 NSWLR and Vero, which is too recent to be in any reports, concern insurance indemnity clauses and their application.  There are, as my friend says, some difficulties yet to be confronted concerning not only different defendants but different policy periods. 

If one looks at 11 NSWLR, pages 376 and following in the reasons of Mr Justice Mahoney, your Honours will there see some discussion, including extended quotation of medical evidence about the nature of mesothelioma and its causation.  It does not at all justify seeing an injury having been caused upon first inhalation.  At page 382 and following there is discussion which, in our submission, certainly places the suffering of mesothelioma as at the time more or less shortly after it was diagnosed.  Those authorities, in our submission, in the insurance context, which is very clear from pages 382 and following of Saunders, have nothing to assist in the present case.

Neither does the accessory choice of law rule as a doctrine.  Our learned friends have given in their written submissions citations from the late Dr Nygh’s book Autonomy in International Contracts (1999).  Lamentably we do not have anything more up to date from that learned author on the point, but it is significant, we would submit, that at page 240 Dr Nygh, his Honour as he once was, commences a discussion which scarcely sees this as what might be called a universal or universally attractive doctrine.  He refers to its rather uncertain status both judicially generally speaking and in particular in relation to the common law.  Page 243 of that book, towards the foot of the page, it promisingly starts:

The concept as such is unknown in the common law.

In our submission, the whole of that discussion starting at page 240 and going through to 249, your Honours may find useful, but only with respect to note that as a doctrine it is impossible to fit into lex loci delicti as the choice of law rule.  It is too large a matter to be sneaked in, if I may put it that way, or crammed into that component of lex loci delicti which is how do you locate an omission or how do you locate an Act?  It is far more substantive than that and in effect it is an alternative to be applied in certain cases, cases of so‑called pre‑existing or other relationships.

In our submission, the difficulties which it gives rise to do attract the description that Dr Nygh himself quotes from Professor Kahn‑Freund at page 249 of the passage where he referred to the “morbid intellectual attraction” of arguments about that topic.  In our submission, whether they be morbid or not, the fact is they are alien to that which is required by the simplicity and certainty and lack of flexible exception of our lex loci delicti and for those reasons, your Honours, however interested in a comparative sense, would not find that there is any material which may usefully be quarried from that mass of material.

The Chief Justice asked my learned friend for the purpose in the sense of a purposive approach of the so‑called substance test.  We would essay this answer to that question.  The purpose of the substance test is to locate the wrong where parties’ expectations and the interests of certainty of the law, using primarily the factor of geography and focusing on the place where the plaintiff’s relevant interests have been infringed – and I have lost the grammar, the syntax – the purpose of that test is to locate it, as I say, using that expectation, serving that interest of certainty, observing the primacy of geography and locating ultimately the wrong where the plaintiff’s relevant interests have been infringed.

The purpose of that is, in our submission, is to provide a satisfying answer to the question, where is a wrong located when a non‑legal mind may be able to think of or catalogue a number of different places that the law requires one choice, and the word “substance” is a small word with a lot packed into it, which in private international law, in our submission, brings up those factors which we have put into that answer.

Finally, in relation to the notice of contention, there has not been any attempt to meet any of the suggestions in John’s Case.  There has not been any identification of any more fundamental doctrine or principle, the better connection with which requires a change in Voth, to pick up the suggestion made in Imbree v McNeilly [2008] HCA 40 at paragraph 45. My friend has already noted CSR v Cigna and Henry v Henry, but of course they are just two of the cases which would also need in part to be overruled because of their building upon the approach in Voth.

The others are Zhang 210 CLR 491 at 502 to 503, paragraphs 21, 24 and 25; in Gutnick 210 CLR 575 at 596, paragraph 9, evocatively headed “principles”.  In other words, the resolution of the problem, according to Gutnick, carried out in Voth was not some grubby compromise.  It was a selection of principle.  In other words the formulae had to be selected so that a persuasive justification would be provided for a stay which after all was an interruption or cessation of a court otherwise doing what a court is there to do as an arm of government, namely, resolve disputes, and before you refuse to exercise jurisdiction there must be something to do with the administration of justice which would justify not doing it and in a word that is supplied by injustice.  If injustice is threatened in the explained abuse of process sense that Oceanic and Voth provide then that is the principle.

In Schultz 221 CLR 400 at 419 to 420, in the reasons of the minority, paragraphs 10 and 11 provide an explanation by way of contrast with cross‑vesting that your Honour Justice Gummow noted, we think, with respect, by way of approval and your Honour Justice Hayne agreeing with Justice Gummow. Also at page 423 of Schultz, again the minority, paragraph 20, there is, what might be called another view of the merits of Spiliada, which after all is the pole to which our learned friend’s notice of contention seeks to attract the court.

In our submission, when one looks at those discussions in this Court it is clear that there is a most fundamental principle at stake in relation to the way in which the formula is expressed in Voth and it has to do with whether the arm of government peculiarly set apart, impartially to administer justice by dissolving disputes, will, as it were, always be open for business, that access will be available for justice, that it will not be discretionary except in those cases where the nature of the task requires the discretion to be exercised against jurisdiction.  In order to be required or to justify not exercising jurisdiction, something in the nature of injustice must be threatened and that has been repeatedly the very word found in the explanations of the principle and in those authorities.

In those circumstances it is, with respect quite impossible to say that anything has changed, anything has altered to require this Court to reconsider the matter.  Certainty in our submission, urges to the contrary.

Further, if there be misapplication of Voth, one thing is for sure, if I may say so with respect, it was not in Zhang.  It cannot be an argument that says Zhang misapplied Voth, with respect.  Zhang is part of the same body of case law by which one understands the test.  It is for those reasons, in our submission, that there ought to be a refusal to entertain a reopening of Voth, but, if so, your Honours should, in our submission, vindicate the position reached in that and the following decisions.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  The Court will reserve its decision.  The Court will now adjourn to 10.15 am on Tuesday, 23 September.

AT 4.34 PM THE MATTER WAS ADJOURNED