New South Wales Court of Appeal CITATION : JAMES HARDIE & COY PTY LTD V CARLEY [1999] NSWCA 80 FILE NUMBER(S) : CA 40879/97 HEARING DATE(S) : 23 March 1999 JUDGMENT DATE : 23 March 1999 PARTIES : James Hardie & Coy Pty Ltd - A Robert Charles Carley - R JUDGMENT OF : Sheller JA at 1; Beazley JA at 20; Stein JA at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DDT 172/97 LOWER COURT JUDICIAL OFFICER : Armitage DCJ COUNSEL : T G R Parker - A N/A SOLICITORS : Allen Allen & Hemsley - A N/A CATCHWORDS : PLAINTIFF DECEASED; LEGAL REPRESENTATIVE OF ESTATE; PLACE WHERE CAUSE OF ACTION AROSE CASES CITED: James Hardie & Coy Pty Ltd v Hall as Administrator of the Estate of Putt (Court of Appeal) 27 May 1998 Breavington v Godleman (1988) 166 CLR 4 at 111 DECISION : Appeal Allowed THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40879/97 DDT 172/97 SHELLER JA BEAZLEY JA STEIN JA Tuesday, 23 March 1999 JAMES HARDIE & COY PTY LIMITED v CARLEY JUDGMENT 1 SHELLER JA: This is an appeal from a decision of Armitage DCJ sitting as the Dust Diseases Tribunal of New South Wales. The decision was given on 12 December 1997. His Honour awarded the plaintiff/respondent a verdict of $155,000, which was an agreed amount, against the defendant/appellant, James Hardie & Co Pty Limited. 2 In the proceedings the plaintiff alleged negligence by the defendant in causing the plaintiff to be exposed to asbestos resulting in malignant pleural mesothelioma. The appellant appealed and filed an amended notice of appeal on 5 November 1998. 3 On 5 January 1999 the plaintiff, Mr Carley, died leaving a widow, who, apparently, obtained probate of his estate in New Zealand. Mr Carley's solicitors, McLaughlin & Riordan, continued to act on behalf of the estate in connection with the appeal, although no formal appearance was filed. 4 On 19 October 1998, Powell JA made an order under Part 8 rule 16(1) of the Supreme Court Rules that the proceedings continue in the absence of a legal personal representative of Mr Carley's estate. Mrs Carley had apparently refused or not consented to being appointed a person to represent the estate for the purpose of this appeal. Since then no further steps have been taken to defend the appeal 5 On 19 March 1999 McLaughlin & Riordan wrote to the Court stating, amongst other things, that they had been appraised of Powell JA's judgment on 19 October 1998 and the appeal would proceed without representation of the deceased. They advised that his Honour's reasons had been sent to the deceased's widow and that they had received no further instructions to appear in the proceedings. 6 At all times material to the claim made by the plaintiff he was a resident of New Zealand. Between 1964 and 1974 the defendant supplied asbestos containing insulated products which were used in the Whakatane Board Mill. The plaintiff's mesothelioma was materially contributed to by inhaling asbestos fibre which emanated from those products when manufactured or supplied by the defendant. The insulation products contained no labels warning of asbestos use or exposure. 7 The plaintiff applied for and received cover under the New Zealand Accident Rehabilitation and Compensation Insurance Act, 1992. 8 The matter left for determination by Armitage DCJ was the place where the plaintiff's cause of action arose. His Honour held that the privative provisions of the New Zealand Act did not apply because the injury did not arise out of and in the course of his employment, but simply arose out of his employment. Accordingly, the plaintiff had, in his Honour's opinion, a cause of action which he could enforce in New Zealand. In any event, his Honour was of the view that the relevant privative cause in the New Zealand Act was procedural and therefore not part of the law of this forum, New South Wales, and so did not defeat the plaintiff's claim. 9 His Honour further expressed the view that the tort for which the plaintiff was claiming was failing to attach warnings in New South Wales to the product, and continuing to manufacture in New South Wales, knowing of the risk of injury of the product. Accordingly, in his Honour's view, the tort in respect of which the action was brought was one committed in New South Wales . 10 Further, Armitage DCJ gave his decision on 27 May 1998. This Court constituted as at present gave judgment in James Hardie & Co Pty Limited & Anor v Hall As Administrator of the Estate of Putt on 27 May 1998. 11 On the points to which I have referred, and which Armitage DCJ decided in favour of the plaintiff, that case is indistinguishable. In James Hardie & Coy Pty Limited v Hall this Court held Mr Putt's cause of action, which was based on a failure to require James Hardie's New Zealand subsidiary to adopt a safe system of work and the failure to warn of the dangers of exposure to asbestos, arose in New Zealand. This Court held that the relevant privative provision in that case applied to Mr Putt's claim. Although the private provision in this case is a different section of the New Zealand Act, there is no difference in principle for saying that it did not apply to Mr Carley's claim. Again, this Court held that the privative provision of the New Zealand Act was substantive and not procedural. Again, there is no distinction to be made between the relevant privative clauses. Therefore, it was held that Mr Putt had no claim which could be put in suit in New South Wales. 12 It follows inevitably by applying the reasoning in the decision of this Court that Mr Carley's claim in the Dust Diseases Tribunal must fail. As it happened, Mr Carley was not employed by a James Hardie subsidiary, unlike Mr Putt. However, both Mr Putt and Mr Carley had been exposed to James Hardie products manufactured in Australia and exported to New Zealand. As I have said, Armitage DCJ in finding negligence, relied in holding that Mr Carley's cause of action arose in New South Wales upon James Hardie's failure to include warnings on the packaging of its products. Essentially the same claim was made on behalf of Mr Putt and rejected by this Court. 13 Further, Armitage DCJ upheld Mr Carley's claim on the basis that James Hardie had been negligent in continuing to export asbestos-based products to New Zealand after the dangers of these products had been known. In this Court it was said that the export of asbestos-containing products was not of itself tortious. 14 It follows, from what I have said, that Armitage DCJ erred in holding that Mr Carley's cause of action against James Hardie arose in New South Wales. It also follows from what I have said that the privative provision of the New Zealand Act here applicable meant that the cause of action was not one available to Mr Carley in New Zealand. 15 Accordingly, what has been known as the second condition identified by Brennan J in Breavington v Godleman (1988) 166 CLR 4 at 111, does not apply to the plaintiff's claim. 16 It follows from what I have said that this appeal should be allowed and the orders made by Armitage DCJ set aside. 17 The appellant has asked that the Court make an order that the estate of Mr Carley pay the costs of the hearing in the Tribunal and of this appeal. However, it seems to me in the present state of the record, where effectively there is no party before the Court against whom an order can be made, such orders should not be made. It could be that an appropriate course would be for the appointment of an administrator ad litem to represent the estate, that being a person against whom such an order could be made. However, quite clearly, from looking at the reasons for judgment of Powell JA, he did not consider that such an order was appropriate and, on the material before me, I am not persuaded at this stage such an order is appropriate. 18 However, whilst a court, in my opinion, should not make any orders as to costs, it seems to me appropriate that liberty be granted to the appellant to make further application if so advised in that regard. However, notice of any such application should be served upon Mrs Carley as executrix of the estate in New Zealand. 19 Accordingly, I propose that the following orders should be made: 1. Appeal allowed; 2. Judgment and orders of Armitage DCJ on 15 December 1997 be set aside; 3. In lieu thereof, judgment for the defendant in the proceedings in the Dust Diseases Tribunal; 4. Liberty to the appellant to apply on twenty-one days' notice to the widow of Mr Carley for leave to make such further application in respect of the costs of the proceedings or of this appeal as it may be advised. 20 BEAZLEY JA: I agree. 21 STEIN JA: I agree. 22 SHELLER JA: That is the unanimous judgment of the Court. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.