JAMES HARDIE AND COY PTY LTD and ANOR v COYLE [1998] NSWCA 113

JAMES HARDIE & COY PTY LTD v COYLE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and COLE JJA 5 May 1998, 5 May 1998

[1998] NSWCA 113

Application for leave to appeal — private international law — forum non conveniens — application of testing Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Sheller JA

On application for leave to appeal

By a statement of claim dated 3 November 1997 and filed in the Dust Diseases Tribunal of New South Wales the plaintiff, John Joseph Coyle, began proceedings against James Hardie & Coy Pty Ltd and James Hardie Industries Ltd, to recover damages for injuries particularised as malignant pleural mesothelioma and bilateral pleural plaques alleged to have been caused by the inhalation of asbestos dust and fibres. Both the defendants were incorporated in New South Wales. The second was the parent company of the first. The plaintiff claimed the injuries were caused by the negligence of each defendant.

Two periods of inhalation were particularised. The first was while the plaintiff was employed by the then New Zealand Electricity Department at its power station at Meremere, New Zealand, in 1975 and 1976. The second was while the plaintiff was carrying out repairs and renovations at his house in Auckland and in the course of doing so cut and fixed Fibrolite sheeting in or around 1982. The plaintiff alleged that the asbestos dust and fibres inhaled by him at the Meremere power station emanated from asbestos and asbestos based insulation materials used extensively throughout the power station which were in part manufactured by the first defendant at its plant in Sydney and/or supplied from its Sydney establishments through its New Zealand distributor, Foreman's Insulation Ltd.

The plaintiff alleged that part of the Fibrolite sheeting used by him in repairing and renovating his house was manufactured by the first defendant at its factory in New South Wales and distributed through James Hardie & Coy Pty Ltd, New Zealand, a subsidiary of one of the defendants, or manufactured by the New Zealand company at its factory in Penrose, Auckland. The Fibrolite manufactured at the Penrose plant and sold throughout New Zealand was said to be manufactured and sold under the direction and control of the defendants.