Puttick v Tenon Ltd

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.