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