Puttick v Tenon Ltd

Case [2008] HCA 54

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

JANINA PUTTICK (AS EXECUTOR OF THE ESTATE
OF RUSSELL SIMON PUTTICK)  APPELLANT

AND

TENON LIMITED (FORMERLY CALLED FLETCHER
CHALLENGE FORESTS LIMITED)  RESPONDENT

Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited)
[2008] HCA 54
12 November 2008
M40/2008

ORDER

1.        Appeal allowed with costs.

2.Set aside paragraphs 2 and 3 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 27 November 2007, and in their place order:

(a)      appeal allowed with costs; and

(b)set aside the orders of Justice Harper made on 13 October 2006 and in their place order that the defendant's summons filed on 6 March 2006 be dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation

B W Walker SC with J R C Gordon for the appellant (instructed by Slater & Gordon)

A S Bell SC with L G De Ferrari and R L Garnett for the respondent (instructed by Freehills)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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

Private international law – Stay of proceedings – Forum non conveniens – Governing law – Law of the place of the tort – Whether place of the tort was New Zealand, where holding company of employer based, or in Malaysia and Belgium, where employee inspected factories owned by third parties and inhaled asbestos fibres – Whether material available on stay application sufficient to enable court to determine governing law – If governing law cannot be determined, how should discretion to grant stay be exercised.

Private international law – Stay of proceedings – Forum non conveniens – Whether test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 correct or to be re-opened.

Private international law – Stay of proceedings – Forum non conveniens – Meaning of "clearly inappropriate forum" – Whether fact that governing law is foreign law, coupled with other factors suggesting foreign forum more appropriate, sufficient to render Victorian court clearly inappropriate forum – Additional considerations where foreign law in question is law of New Zealand.

Private international law – Governing law – Importance of pleading foreign law clearly and with appropriate particulars. 

Words and phrases – "clearly inappropriate forum", "forum non conveniens", "governing law", "lex causae", "lex loci delicti", "place of the tort".

  1. FRENCH CJ, GUMMOW, HAYNE AND KIEFEL JJ.   The appellant (Mrs Puttick) appeals against orders[1] of the Court of Appeal of the Supreme Court of Victoria dismissing her appeal against orders[2] of a single judge of the Supreme Court permanently staying her action as brought in a clearly inappropriate forum.  Much of the argument of the appeal in this Court proceeded on the footing that an important, even a determinative, issue in deciding whether Victoria was a clearly inappropriate forum is what law governs…

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AGLC
Puttick v Tenon Ltd [2008] HCA 54
Case
[2008] HCA 54
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Tenon Ltd (the defendant) against a decision of the Court of Appeal of the Supreme Court of Victoria. The dispute concerned an application for a stay of proceedings brought by the defendant in an action commenced by Mr. Puttick (the plaintiff). Mr. Puttick alleged that he contracted an asbestos-related illness as a result of inhaling asbestos fibres while inspecting factories in Malaysia and Belgium. The defendant argued that Victoria was a clearly inappropriate forum for the trial of the action and that the proceedings should be stayed.

The central legal issues before the High Court were whether the courts below had erred in determining the governing law of the tort, and consequently, whether the discretion to grant a stay of proceedings had been exercised correctly. Specifically, the Court had to consider whether the place of the tort was New Zealand, where the holding company of Mr. Puttick's employer was based, or Malaysia and Belgium, where the alleged exposure occurred. The Court also had to determine if the material available on the stay application was sufficient to ascertain the governing law, and if not, how the discretion to grant a stay should be exercised. Furthermore, the Court considered the continued applicability of the test for "clearly inappropriate forum" as established in *Voth v Manildra Flour Mills Pty Ltd*.

The High Court found that it was not possible, on the available pleadings and evidence, to definitively determine the governing law of the tort. The courts below had erred in concluding that New Zealand law was the *lex causae*, as this conclusion was not sufficiently supported by the material. Consequently, the primary judge's exercise of discretion to grant a stay, which was partly based on this determination, had miscarried. The High Court determined that it should re-exercise the discretion itself rather than remit the matter to the Supreme Court of Victoria, as this would avoid further interlocutory litigation and the evidentiary materials did not present any advantage to the Supreme Court.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal and the primary judge. The Court ordered that the defendant's summons for a stay of proceedings be dismissed.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside paragraphs 2 and 3 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 27 November 2007, and in their place order:

(a) appeal allowed with costs; and

(b) set aside the orders of Justice Harper made on 13 October 2006 and in their place order that the defendant's summons filed on 6 March 2006 be dismissed with costs. (per French CJ, Gummow, Hayne and Kiefel JJ; Heydon and Crennan JJ agreeing with the orders in a separate judgment)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE AND KIEFEL JJ (dissent) HEYDON AND CRENNAN JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEYDON AND CRENNAN JJ

The circumstances of this appeal are set out in the judgment of French CJ, Gummow, Hayne and Kiefel JJ. The appeal should be allowed and the notice of motion before the primary judge should be dismissed for the following reasons.Four questions for consideration There are four questions for consideration. The first is whether the courts below erred in concluding that the lex causae was New Zealand law. If that first question is answered affirmatively, it follows that the primary judge's exercise of discretion miscarried. A second question then arises, namely whether this Court should remit the matter to the Supreme Court of Victoria for the discretion to be re-exercised or whether this Court should re-exercise the discretion itself. If the answer to the second question is that this Court is to re-exercise the discretion, a third question must be considered. That question is whether the discretion should be exercised in accordance with the principles stated in Voth v Manildra Flour Mills Pty Ltd[38], or in accordance with some other test. However the third question is answered, a fourth question is whether the Court's discretion should be exercised in favour of or against the respondent's application for a stay.[38](1990) 171 CLR 538; [1990] HCA 55.First question: was the lex causae New Zealand law? For the reasons given in the plurality judgment, it is not at present possible to decide whether the lex causae is New Zealand law[39]. A conclusion reached on a stay application about what the proper law of a tort is will normally only be a provisional conclusion: it will be a conclusion open to alteration in the light of further evidence called at the trial. A judge considering a stay application may be able to determine the location of the alleged tort despite somewhat unreal or artificial contentions in the pleadings[40]. However, in the present proceedings it is not possible, on the state of the pleadings and the evidence called before the primary judge, to reach even a provisional view on that subject.[39]At [16]-[24].[40]See for example, Buttigeig v Universal Terminal & Stevedoring Corporation [1972] VR 626 at 629 per Crockett J.Second question: should the matter be remitted to the Supreme Court of Victoria? It follows from the answer to the first question that the primary judge's exercise of his discretion to order a stay, upheld by a majority of the Court of Appeal, miscarried. It miscarried because it depended in part on the proposition that the lex causae was New Zealand law, and the answer to the first question is inconsistent with that proposition. Hence the discretion must be exercised afresh. Should the Supreme Court of Victoria exercise the discretion, or this Court? It would be unduly onerous on the parties, by remitting the matter to the Supreme Court of Victoria, in effect to compel them to conduct further interlocutory litigation, particularly since the loser of that further litigation may seek special leave to appeal to this Court. Consideration of the evidentiary materials does not appear to turn on any issue in relation to which the Supreme Court of Victoria was in a position of advantage compared to this Court. Neither party advocated remitter. Accordingly the answer to the second question is that the matter should not be remitted and that this Court should re-exercise the discretion.Third question: should Voth v Manildra Flour Mills Pty Ltd be applied?