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. The second defendant was said at all material times to have detailed knowledge of the nature and extent of the manufacture of asbestos cement building products including Fibrolite at the Penrose plant and of its sale in New Zealand, and to have received money and profited from such sales. At all material times either one of the defendants or the defendants jointly were said to have the control and management of the New Zealand company's factory premises and operation at Penrose. The particulars of negligence in the statement of claim were extensive and pleaded separately against each defendant. It is sufficient for present purposes to summarise them under the headings of (i) a failure to warn the plaintiff, his employer, the New Zealand distributor or generally of the risks associated with 2 UNREPORTED JUDGMENTS the inhalation of asbestos or advise about protective breathing apparatus; (ii) failure to withdraw the product from manufacture or continuing to manufacture; (iii) failure to heed various warnings from public health authorities and others; and (iv) failure to prevent injury to the plaintiff from the use of asbestos materials. These particulars were pleaded more extensively and varied to some extent in respect of each defendant and in respect of the power station claim and the home restoration claim. On 15 November 1997 the proceedings were listed for hearing by the Tribunal in Auckland to begin on 5 January 1998. On 31 December 1997 the defendants filed a notice of motion for orders that the proceedings be dismissed or, alternatively, permanently stayed on the ground that New South Wales was an inappropriate forum. On 5 January 1998 the hearing began before his Honour Judge O' Meally in Auckland, and on 6 January was adjourned to resume at a date unfixed in Sydney. On 23 February 1998 Judge O'Meally fixed 6, 7 and 8 May 1988 for the continuation of the hearing of the proceedings in Sydney. On 20 March 1998 his Honour Judge Maguire heard the defendant's notice of motion for strikeout or stay and on 23 March dismissed it. On 20 April 1998 the defendants filed in this Court a holding summons for leave to appeal from Judge Maguire's decision and on 29 April 1998 a white book and notice of motion seeking expedition of the appeal. On 4 May 1998 an order for expedition was made which led to the hearing of the defendant's application for leave to appeal coming before the Court today. The plaintiff has been at all material times, and is, a New Zealand resident. He was injured while employed or living in New Zealand. No doubt medical treatment he has been and will be receiving will be undertaken in New Zealand and one would expect in a case such as this that medical witnesses will come from New Zealand. The evidence about the condition of his workplace and the extent of his exposure to asbestos dust and the protection, if any, that he had from it will be New Zealand evidence. Before coming to deal with the substance of this application it is convenient to mention the following preliminary matters. In order to succeed on the application for a stay on the basis that New South Wales is not a convenient forum, the defendants have to show that New South Wales was a clearly inappropriate forum; see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. In that case, the High Court in preferring the test which I have just stated to a test of "which is the more convenient forum" or the test "of the clearly more appropriate forum" emphasised that those other tests, and I quote from 559: "[N]ecessarily involved assumptions or findings about the comparative claims of the competing foreign tribunal including the standards and the impartiality of its members." The majority members of the High Court said at 559 that in a context where the relevant test will fall to be applied in accordance with the individual perception of the primary Judge, the Courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local Judge will have both knowledge and experience, rather than a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal, of which he or she is likely to have little knowledge and no experience. The question of whether or not that test is satisfied is pre-eminently one for the trial Judge. In this case that task was undertaken by Judge Maguire. Unless some error can be shown in his Honour's reasons for judgment this Court should not URJ JAMES HARDIE & COY PTY LTD v COYLE (Sheller JA) 3 intervene. In his judgement, Judge Maguire referred, amongst other things, to the fact that on 30 December 1997 both defendants issued a cross-claim against the Attorney General of New Zealand and the Electricity Corporation of New Zealand Ltd, seeking contribution or indemnity under the Law Reform (Miscellaneous Provisions) Act 1946 of New South Wales. His Honour observed that on 4 February 1998 the cross-claims were discontinued against both cross-defendants. His Honour referred to the law as settled in this country by the High Court in Voth, and went on to say that the test so settled had been applied on many occasions by judges of the Dust Diseases Tribunal. In particular he referred to James Hardie & Coy Pty Ltd v Cameron (1995) 12 NSW CCR 286. His Honour then went on to say that counsel for the defendants frankly acknowledged that the decision of his Honour Judge O'Meally in Cameron's case stood in his way. His Honour said: "As appears from the headnote his Honour considered the following factors in applying the test. (a) There were many connecting factors with New South Wales: the defendant was resident here; breaches of duty were alleged to have been committed here and much of the evidence to be given would come from sources here. (b) The Tribunal was accustomed to hearing evidence on allegations of breach of duty in relation to negligent exposure to asbestos dust and fibre. (c) There was a legitimate juridicial advantage to the plaintiff, Cameron, in pursuing his claim in the Tribunal in that, by reason of the reception of evidence under the Dust Diseases Tribunal Act 1989, s25(3), considerable time and expense would be saved. (d) By reason of the nature of the issues to be determined in cases brought in the Tribunal - and the evidence necessary for their determination - discovery and interrogatories were ordered as a matter of course using special forms developed for such cases. This, seemingly, was not so in New Zealand. (e) Practitioners who regularly act in cases brought in the Tribunal had developed procedures and practices which enable cases quickly to be prepared for hearing and quickly to be completed. (f) The plaintiff's mesothelioma was well advanced and so it was desirable to conclude his case as quickly as the proper considerations of justice would permit." His Honour appeared to take account of each of those factors in determining the application before him. It is to be observed that in at least one para(d) this involved some comparison between the merits of the judicial system or procedure in the Dust Diseases Tribunal and in the New Zealand Courts, which, on its face, is contrary to the test propounded in Voth's case, particularly when one takes account of the reasons for adopting that test which the High Court explained in the passage which I have quoted. Judge Maguire then went on to refer to the argument put on behalf of the defendants that in light of a proposed defence of sovereign immunity by at least the New Zealand Attorney General, any capacity to make a cross-claim in New South Wales was not available. His Honour, however, was not persuaded that the effect of the proceedings continuing in the Tribunal would necessarily be to deprive the defendants of a remedy for contribution for indemnity. His Honour concluded by saying: "T look afresh at the factors set out in the headnote to Cameron. On the strength of matters put before me by counsel from the Bar table factor (f) may not in the instant case be of as much force as it was in Cameron. However, in my 4 UNREPORTED JUDGMENTS experience of the progression of mesothelioma it cannot entirely be ignored. Taking into account the factors set out in the headnote to Cameron and the Sydney manufacture factor I am not persuaded that the Tribunal is a forum non conveniens." In Voth's case itself, although this Court of Appeal was said to have applied the correct test, the High Court by a majority reversed the decision substantially because unlike the Court of Appeal it held that the tort complained of was a foreign tort committed in Missouri and not in New South Wales. In the present case, there is much to be said for the view, considering the pleadings and the particulars of negligence relied upon by the plaintiff, that the tort for which recovery is now sought was a New Zealand tort, and therefore foreign tort. However, the counsel for the plaintiff has submitted that properly understood the claim is for or in respect of a New South Wales tort. Indeed, if in truth the tort was a New Zealand tort, the argument would be available that under New Zealand legislation the action for damages in New Zealand for personal injuries of the sort here claimed had been abolished, and, accordingly, applying the principles of Phillips v Eyre (1992) 66 ALJ 245 the plaintiff could not recover damages in respect of such a tort in New South Wales. For my part, in the circumstances in which this application is brought before us, it does not seem to me appropriate to decide the case on the basis that the plaintiff is claiming solely to recover damages for a tort committed in New Zealand. One particular reason for this is that that point does not appear to have been argued before Judge Maguire. Another is that the point is subject of a reserved decision of this Court in the matter of Putt v James Hardie & Coy Pty Ltd and James Hardie Industries Ltd, to which I will come back shortly. In my opinion, it is proper in this case to treat the claim as one made in respect of a tort committed in New South Wales. The question that first must be addressed by this Court is whether the defendants should be granted leave to appeal. Relevantly, this requires the Court to decide whether in the interests of justice leave should be granted in the circumstances of this case. I come to consider this question in light of a number of matters which I will now set out. On 23 January 1998 his Honour Judge O'Meally gave his reasons for judgment in the matter of Putt, the defendants in these proceedings. His Honour in those reasons said: "Tn exporting or in arranging for the export of asbestos, in arranging for subsequent reimbursement and payment of commission, and in arranging for trans-shipment of asbestos from Australia to New Zealand the first defendant was aware that it was shipping a commodity, the use of which in the circumstances in which the plaintiff was employed, was known to be dangerous so as to constitute a risk of foreseeable injury. In doing so the first defendant committed a breach of duty in New South Wales." The defendants appealed from that decision. One of the grounds of appeal was that his Honour erred in concluding that the tort that was found to have been committed in that case had been committed in New South Wales. The appeal was heard in April of this year and the Court has reserved its decision. There is no doubt that the facts pleaded in the present case differ in a number of respects from the facts in Putt's case. But I am satisfied that the decision in that appeal will touch upon the question of whether the tort particularised in the statement of claim in this case was a New South Wales tort. URJ JAMES HARDIE & COY PTY LTD v COYLE (Mason P) 5 Although the proceedings in this case were begun on 4 November 1997 and although forum non conveniens was pleaded as part of the defendant's defence filed on 12 December 1997, this application for a stay was not made until 31 December 1997. Although that application was dismissed by Judge Maguire on 23 March 1998 the defendants did not file their holding summons for leave to appeal until 20 April 1998, and the application for expedition was not made until 29 April 1998. To some extent these considerations seem to me to undermine the defendant's submission that the point they wish to argue on this appeal is one of great and general importance, the decision of which will affect many other cases. The respondent's point is that neither any error in Cameron's case, which is in the forefront of the defendant's submission now, nor the place of the tort, were matters relied upon by the defendants in argument before Judge Maguire. The proceedings are now part-heard and are listed to continue tomorrow. The plaintiff, by reason of mesothelioma, has a short life expectancy. It is for that reason that proceedings of this sort are pursued expeditiously through the Dust Diseases Tribunal. Indeed, any delay in the continuance of these proceedings will, if the plaintiff dies before they are complete, affect the extent of the defendant's liability to him and to his estate. Ultimately, if the appeal in Putt's case is upheld or if for other reasons the defendants succeed in these proceedings, this appeal may well become academic. On the other hand, if the appeal in Putt is dismissed or the defendants fail in these proceedings and there is a verdict for the plaintiff and the defendant's appeal, the plaintiff's counsel has agreed that the defendants should be in no worse position on such an appeal in running a point of forum non conveniens than if an appeal had been heard by the Court today. Thus, it seems to me, that if in truth there was error in the decision of Judge Maguire in simply adopting the tests outlined in the headnote to Cameron's case, the defendant's position is protected. I should say in fairness that I am not entirely persuaded that the headnote in Cameron's case fairly reflects what was said by Judge O'Meally in his reasons for judgment in that case. Taking account of the matters to which I have just referred, I am not persuaded that this is a case in which leave to appeal from Judge Maguire's interlocutory decision should be granted. Accordingly, I would propose that the application for leave to appeal be dismissed with costs. Mason P I agree with Justice Sheller's reasons and the orders he proposes. I wish to add merely this. In cases involving the forum non conveniens doctrine, the importance of determining whether the tort, if there was one, occurred outside the forum is emphasised in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 569 and 70. James Hardie & Coy Pty Ltd v Cameron (1995) 12 NSW CCR 286 was a case where it was alleged that the defendant committed breaches of duty in New South Wales, see at 289 and 306. The importance of this factor in Cameron is emphasised by its recital in para(a) of the headnote to Cameron's case in the New South Wales Compensation Court Reports. It was the submission of Mr Douglas QC, senior counsel for the claimants that the Statement of Claim in the present case cannot be construed as alleging that any tort occurred in New South Wales. I would be inclined to agree, were we confined to construing that document. The difficulty is that the plaintiff's counsel contends otherwise, and this point was not taken at the hearing before Judge Maguire. Had the point been taken the plaintiff would have been forced to clarify any ambiguity in his pleading and the trial judge would have been required to address the Voth issue in that context. As the majority of the High Court said in 6 UNREPORTED JUDGMENTS Voth, at 570, the question is pre-eminently one for the trial judge and it clearly is one that needs to be addressed in the context of a specific factual context. Cole JA I agree with the reasons of Justice Sheller and with the orders which he proposes. I also agree with the remarks of the President. The summons is dismissed with costs. Application for leave to appeal dismissed with costs. 10 Counsel for the appellant: F M Douglas QC/P Nygh Solicitors for the appellant: Allen Allen & Hemsley Counsel for the respondent: J L Sharpe 15 Solicitors for the respondent: McLaughlin & Riordan