Studorp Limited v Robinson

[2014] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:

Studorp Limited v Robinson [2014] QCA 174

PARTIES:

STUDORP LIMITED
(appellant)
v
LANCE JOHN ROBINSON
(respondent)

FILE NO/S:

Appeal No 9329 of 2013
SC No 11966 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 July 2014

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2014

JUDGES:

Gotterson and Morrison JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal dismissed.1.      

Appellant to pay the respondent’s costs of the appeal on the standard basis.2.      

CATCHWORDS:

PRIVATE INTERNATIONAL LAW – RESTRAINT OF PROCEEDINGS – OF LOCAL PROCEEDINGS: CLEARLY INAPPROPRIATE FORUM – GENERALLY – where the respondent had contact with the appellant’s asbestos products as an child in New Zealand – where the respondent was later diagnosed with asbestos related pleural disease – where the respondent claimed damages for personal injuries – where the respondent was a resident of and had previously brought similar proceedings in New South Wales – where the appellant applied for a stay of the proceedings on the basis that Queensland was a “clearly inappropriate forum” – where the application was dismissed – whether Queensland was a “clearly inappropriate forum”

Trans-Tasman Proceedings Act 2010 (Cth)
Uniform Civil Procedure Rules 1999 (Qld), r 16, r 144

Couch v Attorney-General [2008] 3 NZLR 725; [2008] NZSC 45, cited
Donoghue v Stevenson [1932] AC 562; [1932] All ER 1; [1932] UKHL 100, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Konamaneni v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269; [2001] EWHC Ch 470, cited
North Shore City Council v Attorney-General [2012] 3 NZLR 341; [2012] NZSC 49, cited
Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54, cited
Ramsay v Aberfoyle Manufacturing Company (Australia) Pty Ltd (1935) 54 CLR 230; [1935] HCA 75, cited
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10, cited
Studorp Limited v Robinson [2012] NSWSC 148, related
Studorp Limited v Robinson [2012] NSWCA 382, related
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, cited
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cited

COUNSEL:

G Watson SC, with J Sheller, for the appellant
P Semmler QC, with S Tzouganatos, for the respondent

SOLICITORS:

DLA Piper for the appellant
Turner Freeman for the respondent

1. GOTTERSON JA:  On 12 December 2012, the respondent, Lance John Robinson, commenced proceedings in the Supreme Court of Queensland against the appellant, Studorp Limited (“Studorp”), for damages in negligence for personal injury, by filing a claim and statement of claim.[1]  Factual circumstances giving rise to actionable negligence are pleaded as having occurred in New Zealand where Mr Robinson resided as a young man.  His pleaded case is that as a result of the appellant’s acts and omissions, he contracted asbestos related pleural disease which has caused him pain, injury, loss and damage.  He has continued to suffer symptoms of the disease in New South Wales where he now resides and in Queensland where he has received treatment for the disease from time to time.

   [1]AB179-189.

1. Studorp filed a conditional notice of intention to defend[2] on 11 March 2013 pursuant to r 144 of the Uniform Civil Procedure Rules, r 144(4) of which required it to apply for an order under r 16 within 14 days. On 25 March 2013, it filed an application in the proceedings.[3]  Apart from a costs order, the application sought, firstly, “an order that the Supreme Court of Queensland is a clearly inappropriate forum for the hearing of [Mr Robinson’s] claim” or, alternatively, an order staying the proceedings pending payment of certain costs awarded in New South Wales litigation to which both Studorp and Mr Robinson were parties.

   [2]AB190-191.

   [3]AB192-193.

1. The application was unusual in that no specific further order setting aside the originating process or permanently staying the proceeding was requested in the event that the order first sought was made. Notwithstanding, the application, which was heard by a judge of the trial division on 22 August 2013, was argued on the footing that a permanent stay order was sought in that event, an order that could be made under r 16(g).[4]

   [4]Reasons [1].

1. On 9 September 2013, orders were made dismissing the application and ordering Studorp to pay Mr Robinson’s costs of it as assessed.[5]  The learned primary judge published reasons[6] that day, at the end of which he stated his conclusion that Studorp had not demonstrated that the Supreme Court of Queensland was a clearly inappropriate forum.[7]

   [5]AB194.

   [6]AB195-215.

   [7]Reasons [100]. It was accepted that, consistently with Voth at 548-9 and 564-5, the onus lay on Studorp to so demonstrate: see also Regie Nationale Renault v Zhang [2002] HCA 10; (2002) 210 CLR 491 at [82].

1. Studorp filed a notice of appeal[8] on 1 October 2013.  At the hearing of the appeal, Studorp was given leave to file an amended notice of appeal.  That document was filed on 3 April 2014.  The single ground of appeal, as reformulated in it, is that his Honour:

“erred in failing to make an order that the Supreme Court of Queensland was a clearly inappropriate forum for determining the proceedings.”

[8]AB216-218.

1. In submissions, counsel for Mr Robinson characterised Studorp’s appeal as being one against the exercise of a discretion by refusing an application to stay the proceedings permanently.[9]  That was explicable given the footing on which the application was argued.  For Mr Robinson, it was contended[10] that in order to impugn the exercise of the discretion, it was necessary for Studorp to establish an error of the kind referred to in House v The King.[11]  There was no detailed argument before this Court as to whether that characterisation was correct having regard to the form of the order first sought in the application document and to the absence of any claim in it for a permanent stay.  The point has, however, become one that is unnecessary to resolve because the errors[12] which Studorp has sought to attribute to the learned primary judge are all ones of the kind described in House.

   [9]Submissions paragraph 1; Tr1-41 LL27-28.

   [10]Tr1-37 LL32-34; 1-41 LL29-35 and in reliance upon Murakami v Wiryadi [2010] NSWCA 7; (2010) 268 ALR 377 at [32], [35].

   [11](1936) 55 CLR 499.

   [12]Those set out in paragraph 2 of Studorp’s amended submissions.

1. Before turning to those alleged errors, I propose to outline the case as pleaded, the history of the litigation between the parties, and the process by which his Honour determined Studorp’s application.

The case as pleaded

1. Studorp is sued by Mr Robinson as a manufacturer and supplier of asbestos cement building materials in New Zealand.  Mr Robinson pleads that from about 1968 to about 1974 (from when he was 10 years old until he was sixteen years old) his father carried on a house construction business around Howick in New Zealand in the course of which, Studorp’s building material products were handled, cut, fixed and shaped for construction purposes.[13]  Mr Robinson claims that he attended building sites with his father where he inhaled asbestos dust;[14] that he travelled in his father’s work van when Studorp’s building material products were being transported, exposing him to asbestos dust which he inhaled;[15] and that he was exposed to and inhaled asbestos dust from coming into contact with his father’s person and clothing, both of which were asbestos dust laden.[16]

   [13]AB181; Statement of claim paragraphs 1 and 2.

   [14]Ibid paragraph 3.  In particulars supplied in proceedings in the Dust Diseases Tribunal of New South Wales, Mr Robinson stated that he would assist with odd jobs, cut pieces of wood or fibro and sweep up fibro dust with a broom: AB116-117.

   [15]Ibid paragraph 4.

   [16]Ibid paragraph 5.

1. The statement of claim contains allegations that Mr Robinson contracted asbestos related pleural disease from his exposure to, and inhalation of, asbestos dust and fibre and that he has suffered pain, injury, loss and damage.[17]  He alleges that the cause of his disease and the resultant pain, injury, loss and damage was negligence on the part of Studorp.[18]

   [17]Ibid paragraph 6.

   [18]Ibid paragraph 7.

1. Paragraph 7 of the statement of claim contains some thirteen particulars of negligence ((a) to (m) inclusive) which are not untypical of those pleaded in a negligent product manufacture/supply case in Australia.  Whilst it is unnecessary to set out all of them, I mention the following particulars in light of the reference made to them in the course of argument of the appeal.  They are:

“…

(c)Manufacturing, supplying and using materials containing asbestos in circumstances where there was a real risk that persons such as the Plaintiff would inhale asbestos dust and fibre as a consequence of working with the products and in the vicinity of workers who were mixing, cutting, manually working with and handling asbestos fibro products and thereby suffer injury in consequence of the inhalation of asbestos dust and fibre.

(d)Failing to withdraw products and continuing to use products containing asbestos manufactured by the Defendant and supplied to it by others once it was known or ought to have been known to the Defendant that in manufacturing, supplying and using products containing asbestos including asbestos fibro products that a health risk was imposed upon persons such as the Plaintiff’s father who were working in the vicinity of others who were mixing, cutting, manually working with the said products containing asbestos in circumstances where asbestos dust and fibre was released into the atmosphere and thereby inhaled by persons such as the Plaintiff knowing that following such inhalation persons such as the Plaintiff would suffer injury.

(e)Knowing of the risk from inhaling asbestos dust and fibre and continuing to manufacture and supply products containing asbestos including asbestos fibro products and continuing to supply products containing asbestos.

(f)Failing to make enquiries of appropriate authorities including the Department of Health or Department of Labour & Industry, Occupational Hygienists, Occupations Physicians and consultants as to the risks associated with working with products containing asbestos.

(g)Failing to investigate or to investigate fully and properly the substitution of asbestos in its asbestos cement fibro sheeting with non-asbestos materials.

…

(k)Failing to warn the Plaintiffs father, the Plaintiff or the public generally of the risks associated with inhalation of asbestos dust and fibre.”[19]

[19]AB183-184.

1. Paragraphs 8 to 11 of the statement of claim[20] particularise allegations concerning the injuries and disabilities which have given rise to Mr Robinson’s pain, loss and damage; their lasting impacts upon him; and his continuing need for care and assistance and medical, pharmaceutical, and other treatment.  Paragraphs 11 to 22 thereof[21] set out the heads of damage and amounts claimed with interest where appropriate.  The damages claimed are for:

·pain suffering and loss of amenities of life, past and future;

·costs of commercially-provided care in the future;

·future medical and travel expenses;

·loss of income earning capacity; and

·out-of-pocket expenses.

[20]AB185-186.

[21]AB186-188.

1. Given the filing of the conditional appearance, the pleadings have not progressed beyond the statement of claim.

The history of litigation between the parties

1. On 11 April 2011, Mr Robinson commenced proceedings against Studorp in the Dust Diseases Tribunal of New South Wales (“the Tribunal”).  The statement of particulars of the claim[22] there made reveals that that claim was based on his asbestos-related pleural disease.  Damages similar to those sought in the current Queensland proceedings were sought from the Tribunal with the exception that, in the Tribunal proceedings, damages were claimed for past personal care and assistance ($97,236) and future personal care and assistance ($212,363) provided, and to be provided, to Mr Robinson by his wife and his brother-in-law.[23]  By contrast, in the Queensland proceedings, there is a claim for $200,000 damages for commercially-provided care, but no claim for care to be provided by relatives.

   [22]AB103-137.

   [23]AB133-135.

1. Studorp filed a summons in the Supreme Court of New South Wales seeking declaratory relief that the Tribunal proceedings be set aside on the basis of invalid service and on the further basis that the Tribunal was a clearly inappropriate forum.  On 1 March 2012, Adamson J, at first instance,[24] upheld the invalid service challenge and set service aside.  Her Honour also declared that the Tribunal was not a clearly inappropriate forum for determining Mr Robinson’s claim.

   [24][2012] NSWSC 148.

1. On Studorp’s application for leave to appeal, the New South Wales Court of Appeal[25] held that her Honour had erred in law in determining the appropriate forum issue.  Leave to appeal was granted and that declaration was set aside.  However, for various reasons, their Honours considered it inappropriate to determine whether the Tribunal was a clearly inappropriate forum or so to declare.[26]  An application by Mr Robinson for leave to cross-appeal on the service issue was refused.  In light of this refusal, the fate of the proceedings in the Tribunal was determined by the undisturbed order setting aside service.  Mr Robinson was ordered to pay 50 per cent of Studorp’s costs of the proceedings in the New South Wales Supreme Court and Court of Appeal.  I pause here to mention that it is payment of those costs which is the subject of the stay order sought in the alternative in Studorp’s application in the Queensland proceedings.

   [25][2012] NSWCA 382.

   [26]Per Allsop P at [21], Meagher JA at [25], [30] and Hoeben JA at [95].

1. Judgments on the applications for leave to appeal and to cross-appeal were delivered on 29 November 2012.  In the meantime, on 1 March 2012, Mr Robinson had commenced proceedings in the New South Wales Supreme Court for relief comparable with that which he had sought in the Tribunal.  Those proceedings were discontinued in January 2013.

The judgment under appeal

1. The learned primary judge noted that the parties had agreed that the question for him to consider was whether the Supreme Court of Queensland was a clearly inappropriate forum for the determination of Mr Robinson’s claim such that the court, in exercise of its discretion, ought to decline to exercise jurisdiction to determine it.[27]  His Honour observed that the answer to the question was informed by principles discussed by the High Court in Voth v Manildra Flour Mills Pty Ltd[28] and other cases, most recently in Puttick v Tenon Ltd.[29]  He identified this as the underlying principle for the exercise of the discretion on this ground: that it may be “oppressive, vexatious or an abuse of process” for the proceedings to be heard in the forum in which they are pending.[30]

   [27]Reasons [2]-[4].

   [28](1990) 171 CLR 538.

   [29][2008] HCA 54; (2008) 238 CLR 265 at [27].

   [30]Reasons [4]; citing Voth at 554 and Puttick at [29]; see also Zhang at [25].

1. His Honour outlined the basic facts[31] and the course of the New South Wales proceedings.[32]  He noted the parties’ agreement that conformably with principle, the lex causae for determination of Mr Robinson’s claim will be the law of New Zealand, and observed that, at common law, the law of a foreign country is dealt with as a question of fact on which evidence may be tendered.[33]

   [31]Reasons [5]-[10].

   [32]Reasons [11]-[17].

   [33]Reasons [18].

1. The learned primary judge adverted in some detail to the provisions of the Trans-Tasman Proceedings Act 2010 (Cth) (“the Trans-Tasman Act”) which were then to come into force (and subsequently did come into force) on 11 August 2013. Some of them, he noted, would apply to the current proceedings if not stayed. They concern service of subpoenas and remote appearance by parties and legal practitioners.[34]  His Honour regarded those provisions as relevant to an assessment of whether the proceedings in the Supreme Court of Queensland would be an abuse of process.[35]

   [34]Reasons [35].

   [35]Reasons [41].

1. His Honour dealt with Mr Robinson’s residence in New South Wales[36] and the possibility that liability-related witnesses or documents might need to come, or be transmitted, from New Zealand for a trial in Brisbane.[37]  He was of the view that none of these matters weighed significantly on the question for his consideration.[38]

   [36]Reasons [42]-[48].

   [37]Reasons [49]-[52].

   [38]Reasons [53], [54].

1. The learned primary judge then turned to what he noted Studorp had submitted was the determinative factor for the question under consideration, namely, that the lex causae will be the law of New Zealand.  For Studorp, it was submitted that this factor attained a heightened relevance on account of the introduction of the no-fault Accident Compensation Commission Acts scheme in New Zealand in the early 1970s and the resultant dearth of recent decisions by New Zealand courts in personal injury proceedings arising out of claims not within the scope of the scheme.

1. His Honour noted by reference to a number of examples that in product liability cases, Australian courts had tended to apply the approach articulated by Lord Atkin in Donoghue v Stevenson[39] for the purpose of determining whether a duty of care on the part of a manufacturer/supplier to a plaintiff had existed.[40]  He recalled that the concept of proximity which has a prominence for the existence of a duty of care in negligence in New Zealand law which it does not now have in Australian law, stems from his Lordship’s famous speech in that case.[41]  He was dismissive of any suggestion that developments in the discourse of the duty of care in Australian common law, particularly in the personal injuries context, had resulted in some “tectonic shift” in the Australian law relevant to the issue.[42]

   [39][1932] AC 562 at 580-581.

   [40]Reasons [63]-[68].

   [41]Reasons [59].

   [42]Reasons [61].

1. The learned primary judge then posed the question what was it that had been identified in New Zealand law as operating differently from Australian law.  He answered it with the observation that an experienced New Zealand practitioner who had given expert evidence for Studorp, had relied centrally on the role and impact of “policy” considerations in the common law of New Zealand.[43]

   [43]Reasons [68].

1. Informed by the answer, his Honour proceeded upon an analysis of the cogency of such considerations for the Queensland proceedings.  To the extent that reference was made to the scheme, he commented that prima facie it is a contradiction to say that a claim which falls outside the scheme (as Mr Robinson’s would) is to be resolved by reference to the policy considerations which may be seen to operate within or from the scheme.[44]  He observed that almost all of the New Zealand cases referred to in order to illustrate reliance upon policy considerations were ones that concerned recoverability for negligently-caused economic loss, noting an exception in the case of Couch v Attorney-General[45] where the plaintiff who was injured by a parolee, sought damages for personal injury from the Attorney-General on behalf of the Department of Corrections, and in which the Supreme Court of New Zealand called in aid Lord Atkin’s neighbourhood principle in determining whether a duty of care existed.[46]  Next, his Honour put to one side the issue whether the Fairchild principle[47] would be adopted in New Zealand on the footing that it had no possible application to a single-defendant case,[48] as he did the different approach taken in New Zealand towards damages for the gratuitous provision of care on the footing that such damages were not sought in the Queensland proceedings.[49]  It is a fair summary to say that learned primary judge was not persuaded that policy considerations would feature significantly in the common law of New Zealand to be applied in the Queensland proceedings.

   [44]Reasons [69].

   [45][2008] NZSC 45; [2008] 3 NZLR 725.

   [46]Reasons [70], [71].

   [47]As enunciated in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 for multi-defendant cases.

   [48]Reasons [73].

   [49]Reasons [74].

1. His Honour turned to consider the contrary approach urged for Mr Robinson to the question for his consideration.  He found very considerable support for it in the decision of the High Court in Puttick.  The Court of Appeal of Victoria had upheld the decision of a judge at first instance to stay permanently proceedings in the Supreme Court of Victoria commenced by a plaintiff who had been required by his New Zealand employer to visit factories in Belgium and Malaysia where he was exposed to asbestos dust and thereby harmed.  The proceedings were against his employer and the basis of the stay was that the Victorian court was a clearly inappropriate forum.  The High Court set aside the stay.  Specifically addressing the significance to that issue that New Zealand law had as the lex causae, the plurality[50] said:

“The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction.  Moreover, considerations of geographical proximity and essential similarities between legal systems, as well as the legislative provisions now made for the determination of some trans-Tasman litigation, all point against treating identification of New Zealand law as the lex causae as a sufficient basis on which to conclude that an Australian court is a clearly inappropriate forum….”  (emphasis supplied)

His Honour regarded this reasoning as having convincing application to the case before him.

[50]French CJ, Gummow, Hayne and Kiefel JJ at [31].

1. Lastly, on this question, his Honour referred to the decision of the Court of Appeal in the New South Wales proceedings.[51]  He noted that all of the judges of appeal[52] regarded the statutory exclusion of any right of appeal from the Tribunal on questions of fact (as a finding as to the content of New Zealand law by the Tribunal would be) was an important consideration distinguishing the case from Puttick.  He referred also to the identification by Meagher JA at [29] of the recoverability of damages for gratuitously provided services as being a topic liable to be influenced by policy considerations, noting again that such damages were not sought in the Queensland proceedings.  His Honour expressed the view that the reasons of the Court of Appeal did not support the conclusion that he should stay the Queensland proceedings permanently on the ground that the Supreme Court of Queensland is a clearly inappropriate forum because of the significance of the factor that New Zealand law is the lex causae.

   [51]Reasons [84]-[92].

   [52]Allsop P at [14], [15], Meagher JA at [27] and Hoeben JA at [87], [88].

1. It remains to note briefly that the remaining issues dealt with by the learned primary judge[53] concern the applicability of New Zealand limitations legislation to the proceedings and to the application in the alternative for a stay pending payment of the costs which his Honour also refused.  Neither of those issues feature in this appeal.

   [53]Reasons [93]-[99].

The attribution of errors by Studorp

1. In written submissions, Studorp sought to make out its reformulated ground of appeal by attributing a number of errors to the learned primary judge.  They are that he had:

(a)        misapplied the relevant authorities applicable to forum non conveniens;

(b) allowed an irrelevant matter to guide him, being the effect of the Trans-Tasman Act; and

(c)        failed to take into account material matters including:

(i)          the expert evidence addressing the operation of New Zealand law; and

(ii)        the impact of uncertainty and policy considerations in New Zealand law on the proceedings.[54]

[54]Submissions paragraph 2.

1. It is convenient to deal with each of these matters separately although, as will be seen, there is much overlap between them.

(a) Misapplication of the forum non conveniens authorities

1. No error on the part of the learned primary judge in stating forum non conveniens principles is alleged. In developing an argument of misapplication of principles as articulated in the leading authorities, Studorp criticised the learned primary judge as having substantially resolved the question whether the Supreme Court of Queensland was a clearly inappropriate forum by reference to the Trans-Tasman Act (“the first criticism”) and by a misunderstanding on his part of Puttick (“the second criticism”).  Further, it was said that his Honour paid little regard to expert evidence placed before him as to New Zealand law (“the third criticism”) and to having discounted the result of a “factual enquiry” undertaken by the New South Wales Court of Appeal which, it was claimed, accepted that the expert evidence before it “proved critical differences and uncertainties attaching to the New Zealand law” (“the fourth criticism”).[55]  The first criticism is considered in discussion of alleged error (b) and the third and fourth criticisms in discussion of alleged error (c).

   [55]Submissions [24], [25].

1. As to the second criticism, his Honour did not regard the passage from Puttick cited by him as being determinative of the question he was to resolve.  A reading of his reasons reveals that he did not regard what is there said as displacing either the expert evidence on New Zealand law before him or the task for him of having regard to it in the process of deciding the question.  I do not regard this criticism as validly made.

(b) Taking the Trans-Tasman Act into account

1. Studorp seeks to characterise the operation of the Trans-Tasman Act as having no relevance to the question for decision. Whilst it may be, as Studorp submits, that the operation of that Act does not bear directly upon the lex causae factor, the cited passage from Puttick puts beyond debate the relevance of applicable procedural legislation of this type to a consideration of the question whether an Australian forum is a clearly inappropriate one.

1. Two additional points may be made.  Firstly, the reference in Studorp’s submissions[56] to the observations of Starke J in Ramsay v Aberfoyle Manufacturing Company (Australia) Pty Ltd[57] that courts must act upon the law as is, are directed to deprecating reliance upon alterations that might be made to statute-based law in the future. They have no relevance to the Trans-Tasman Act which had been enacted and its imminent commencement date which had been set, by the time of the hearing before the learned primary judge.

   [56]Ibid at [32].

   [57](1935) 54 CLR 230 at 253.

1. Secondly, Allsop P made passing reference to the Trans-Tasman Act at paragraph 21 of his reasons, merely noting that it was “not relevantly in force yet”. The decision in that appeal was given on 29 November 2012. Neither he nor the other members of the Court ventured a view that applicable provisions of the Act would have no relevance to a consideration by a court of a clearly inappropriate forum question.

1. This error is not made out in my view.

(c)(i) Failing to take the expert evidence into account

1. At the hearing before his Honour, Studorp relied upon three reports prepared by Mr Jack Hodder SC, a partner in the New Zealand law firm of Chapman Tripp.  The first of them[58] dated 30 January 2012 was in evidence in the New South Wales proceedings.  The second,[59] dated 21 March 2013 was produced for the Queensland proceedings as was the third[60] dated 11 July 2013.  For Mr Robinson, a report by Mr Bruce Corkill QC, a New Zealand barrister,[61] prepared for the Queensland proceedings and dated 5 July 2013, was tendered.  Mr Hodder’s third report was his response to Mr Corkill’s report.

   [58]AB67-77.

   [59]AB84-89.

   [60]AB175-178.

   [61]AB154-165.

1. Whilst his Honour did not cite passages from any of these reports, it is evident that he read and considered them.  The contents of the reports were referred to in detail in the course of argument before him.[62]  In his reasons, his Honour referred to the expert evidence.  In particular, he referred to Mr Hodder’s reports for the answer to his question to which I have referred at paragraph 23 of these reasons.  He then subjected that answer to the analysis which I have briefly outlined in paragraph 24.

   [62]For example at AB15 Tr1-15 L2-AB17 Tr1-17 L26; AB19 Tr1-19 L19-AB22 Tr1-22 L23; AB38 Tr1-38 L43-AB40 Tr1-40 L6; AB44 Tr1-44 L4-AB45 Tr1-45 L8.

1. These circumstances foreclose argument that the learned primary judge did not take into account the expert evidence.  He plainly did.  The criticism made is not justified.

(c)(ii) Failing to take the impact of uncertainty and policy considerations in New Zealand law into account

1. It is this criticism which was the focus of argument in the appeal.  The submission for Studorp is to the effect that the learned primary judge ought to have concluded from the expert evidence that there was uncertainty in the New Zealand law that would apply to the Queensland proceedings; that the uncertainty was complicated by policy considerations which might inform the resolution of the uncertainty by New Zealand courts; and that the impact of those features was not taken into account by the learned primary judge.  The submission went so far as to propose that a proper taking into account of the impact would compel a conclusion that the Supreme Court of Queensland is a clearly inappropriate forum for Mr Robinson’s proceedings.

1. In the course of argument of the appeal, counsel for Studorp identified the pleaded particulars of negligence set out at paragraph 10 of these reasons as being ones to which policy considerations might apply.[63]  To illustrate the point, reference was made to the utility of asbestos cement as a building product in the post-war period, its relative affordability, the employment that asbestos mining created, and the adverse impact on employment that would have followed had Studorp closed its plant once the dangers to health of asbestos were known.[64]  It must be said at once that these are factual matters.[65]  They, or some of them, might conceivably have some relevance for the precise scope of Studorp’s duty of care as a manufacturer/supplier and to the element of breach of duty, but not to the existence of a duty of care on its part.  The same may also be said of any prevailing industry standards at the time.

   [63]Tr1-17 L20-Tr1-18 L12.

   [64]Tr-17 LL25-42.

   [65]A categorization reinforced by counsel’s description of them as matters which he “might be saying to a jury in Australia”: Tr1-17 LL30-31.

1. Turning to the expert evidence, I note that Mr Corkill was asked whether he considered there to be any significant difference between the law of Australia and the law of New Zealand in respect of liability and the assessment of damages in claims for personal injury.  His opinion was that overall the New Zealand approach to both was “relatively settled and consistent”.[66]

   [66]AB163; paragraph [30].

1. As to liability, and in the context of the ascertainment of the existence of a duty of care, he referred[67] to a passage from the decision of the Supreme Court of New Zealand in North Shore City Council v Attorney-General[68] in which the following statement was made by Blanchard, McGrath and William Young JJ in the course of discussing the High Court decision in Sullivan v Moody:[69]

“…Certainly the salient features to which the Australian courts have paid particular attention (including the nature of the harm, the plaintiff’s vulnerability, the defendant’s control over the situation, the generality or particularity of the class of plaintiff, whether there has been an assumption of responsibility by the defendant, the resources of and demands upon a defendant public authority in its functions and powers), or such of them as are relevant in an individual case, have been regarded as providing valuable assistance and have been addressed in the other jurisdictions in much the same way as in Australia.  But it is helpful to address them in the context of an Anns/Caparo/South Pacific framework.”

This statement was intended by their Honours to have particular application to the ascertainment of whether a duty of care exists in a novel situation – one that falls outside an established category.[70]

[67]AB162-3; paragraph [25].

[68][2012] 3 NZLR 341 at [155].

[69][2001] HCA 59; (2001) 207 CLR 562.

[70]See [157].

1. With respect to damages, Mr Corkill stated that “an orthodox approach is adopted by New Zealand Courts”, conceding that a factor that may require consideration is the extent of comparable entitlements under the compensation scheme.  He observed that “New Zealand Courts carefully consider and are influenced by the common law of overseas jurisdictions when determining issues of this kind”.[71]  Commenting on that observation, Mr Hodder said in paragraph 23 of his third report, that he agreed with it, subject to the qualification that “New Zealand law lacks a modern common law personal injury framework ascertainable from a body of reasonably contemporary caselaw, and where, say, English and Australian legal developments have diverged, the choice between those is likely to be determined on policy grounds.”[72]

   [71]AB163; paragraphs [28], [29].

   [72]AB177.

1. Mr Corkill was of the opinion that the aspect of New Zealand law that a judge of the Supreme Court of Queensland would have to apply would not be so novel or complex as might vex it.[73]  In his third report, Mr Hodder expressed a contrary opinion.  He said:

“…In particular, and elaborating on my paragraph 23, above, it seems to me that there would be significant difficulty for any Australian Court, including the Supreme Court of Queensland, in being confident that it receives sufficient evidence about the policy considerations which would influence a New Zealand court addressing a range of issues that may be raised by the plaintiff’s claim in this proceeding, when those policy issues are as uncertain as I believe them to be in this jurisdiction.  In other words, to the extent that there is novelty and/or policy issues are involved in the plaintiff’s claim, it would be difficult enough for those to be determined in a New Zealand Court with the assistance of New Zealand counsel.  I consider that those difficulties would be compounded for, say, the Supreme Court of Queensland, in the event that it was attempting to resolve such issues on the basis of expert evidence on the law of New Zealand.”[74]

[73]AB163; paragraph [31].

[74]AB178; paragraph [25].

1. The difficulty that Mr Hodder identified in this paragraph is one that would arise “to the extent that there is novelty and/or policy issues involved in (Mr Robinson’s) claim”.  However, Mr Hodder did not proceed from that generality to an identification of what it is that is novel about Mr Robinson’s claim or of how policy issues might be involved.  With respect to the existence of a duty of care, it was not proposed that there would be novelty for New Zealand law in the concept of a duty of care on the part of a manufacturer/supplier of building products in manufacturing or supplying the same to those who might suffer personal injury arising from use of the products in construction, or that policy considerations would have a continuing role to play in the formulation of the duty of care for that relationship.[75]  With regard to the assessment of damages, the application of the Fairchild principle and the availability of damages for gratuitously provided services were identified as topics where policy might well play a part.  However, neither topic will arise as an issue in these proceedings.

   [75]Indeed, it would be difficult to advance such a proposition in the post Donoghue v Stevenson era.

1. For Studorp, reliance was placed on the obiter dicta of Lawrence Collins J in Konamaneni v Rolls Royce Industrial Power (India) Ltd[76] that where a case involves developing and controversial areas of law, it would be better for them to be decided by the court which can authoritatively rule on them, and whose judgments are subject to appeal, and upon the citation of it by the learned authors of Nygh’s Conflict of Laws in Australia, 8th ed.[77]  The applicability of this dicta to the current proceedings is unsupported by cogent evidence that the New Zealand law, particularly with respect to the existence of a duty of care on the part of a manufacturer/supplier of building products is apt to be described as controversial, just as it is by the adjacent comment of the learned authors that “New Zealand law barely seems foreign at all”.[78]  A contrast might well be made with a case in which a duty of care is sought to be established between parties to a relationship of a category for which no duty of care has hitherto been recognised by courts in New Zealand.

   [76][2002] 1 WLR 1269 at [170].

   [77]At [8.36].

   [78]Ibid at [8.37].

1. For these reasons, in my view, Studorp’s submissions in support of its fourth criticism are not made out.  I would add that I agree with his Honour’s analysis of the decision of the New South Wales Court of Appeal.  It was critical to the disposition of that matter that there was no right of appeal on fact, hence on any determination by the Tribunal of the applicable New Zealand law, to the Supreme Court of New South Wales.  Allsop P[79] noted that this “important consideration” distinguished the case from Puttick where all “legal” questions as to fact would have been open to appellate scrutiny.  So also for a decision of first instance with respect to such questions in these proceedings.

   [79]Supra n25, at [14].

Disposition

1. None of the criticisms underpinning the ground of appeal has been established.  Studorp has not demonstrated legal error on the part of the learned primary judge in concluding that it had failed to prove that the Supreme Court of Queensland is a clearly inappropriate forum for Mr Robinson’s claim.  Its appeal must therefore be dismissed.

Orders

1. I would propose the following orders:

1.          Appeal dismissed.

2.          Appellant to pay the respondent’s costs of the appeal on the standard basis.

1. MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the orders his Honour proposes.

1. APPLEGARTH J:  I agree with the reasons of Gotterson JA and the orders proposed by his Honour.