Studorp Ltd v Robinson Robinson v Studorp Ltd [2012] NSWCA 382
Hearing dates:
22 June 20122 November 2012
Decision date:
29 November 2012
Before:
ALLSOP P at [1] MEAGHER JA at [22] HOEBEN JA at [32]
Decision:
(1) With respect to the application for leave to appeal by Studorp, grant leave to appeal and allow the appeal.
(2) The declaration made by the Supreme Court on 1 March 2012 that the DDT is not a clearly inappropriate forum for the determination of Mr Robinson's claim be set aside.
(3) With respect to the application for leave to cross-appeal by Mr Robinson, grant leave to cross-appeal and dismiss the cross-appeal.
(4) Mr Robinson's Notice of Contention dismissed.
(5) Mr Robinson pay 50 percent of Studorp's costs of the proceedings, both in the Supreme Court and in the Court of Appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PRACTICE - nature of appeal against finding that a forum was not clearly inappropriate - not necessary to decide - primary judge took into account irrelevant consideration - PRIVATE INTERNATIONAL LAW - stay of proceedings - clearly inappropriate forum test - negligence - asbestos related injury - governing law, the law of New Zealand - uncertainty as to content of law of New Zealand on issues likely to arise at trial - determination of content of New Zealand law a question of fact - relevance and effect of no appeal on question of fact from the Dust Diseases Tribunal of NSW - importance of appeal rights where content of foreign law in issue - other issues relevant to whether Dust Diseases Tribunal of NSW is a clearly inappropriate forum - whether making of declaration appropriate - PRACTICE - service of Statement of Claim issued out of Dust Diseases Tribunal of NSW in New Zealand - not authorised by Uniform Civil Procedure Rules 2005 - stay of proceedings.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Studorp Ltd v Robinson [2012] NSWCA 382
Case
[2012] NSWCA 382
Decision Date
CaseChat Overview and Summary
Studorp Ltd appealed to the Court of Appeal of New South Wales against a Supreme Court declaration that the Dust Diseases Tribunal of New South Wales was not a clearly inappropriate forum for the determination of Mr Robinson's asbestos-related injury claim. Mr Robinson sought to cross-appeal.
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the Dust Diseases Tribunal was not a clearly inappropriate forum, and whether the service of the Statement of Claim in New Zealand was authorised by the Uniform Civil Procedure Rules 2005. The court also considered the relevance of the inability to appeal findings of fact from the Dust Diseases Tribunal when the content of foreign law, specifically New Zealand law, was in issue.
The Court of Appeal reasoned that the primary judge had taken an irrelevant consideration into account. The court highlighted the importance of appeal rights when the content of foreign law is a significant factor in determining the governing law of a dispute. The uncertainty surrounding the content of New Zealand law on issues likely to arise at trial, and the fact that determining such content is a question of fact, weighed heavily in the court's assessment of the appropriateness of the forum. Furthermore, the court found that the service of the Statement of Claim in New Zealand was not authorised by the Uniform Civil Procedure Rules 2005.
Consequently, the Court of Appeal granted Studorp Ltd leave to appeal and allowed the appeal, setting aside the Supreme Court's declaration. Mr Robinson's cross-appeal was dismissed, and his Notice of Contention was also dismissed. Mr Robinson was ordered to pay 50 percent of Studorp Ltd's costs.
Orders
Orders of the court
(1) With respect to the application for leave to appeal by Studorp, grant leave to appeal and allow the appeal.
(2) The declaration made by the Supreme Court on 1 March 2012 that the DDT is not a clearly inappropriate forum for the determination of Mr Robinson's claim be set aside.
(3) With respect to the application for leave to cross-appeal by Mr Robinson, grant leave to cross-appeal and dismiss the cross-appeal.
(4) Mr Robinson's Notice of Contention dismissed.
(5) Mr Robinson pay 50 percent of Studorp's costs of the proceedings, both in the Supreme Court and in the Court of Appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]