Court of Appeal Supreme Court New South Wales Medium Neutral Citation: 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. Legislation Cited: Civil Procedure Act 2005 Contracts Review Act 1980 (NSW) Dust Diseases Tribunal Act 1989 (NSW) ss10, 11, 25, 32 Dust Diseases Tribunal Regulations 2007 Interpretation Act 1987 (NSW) Clauses 19, 21 Trans-Tasman Proceedings Act 2010 (Cth) Uniform Civil Procedure Rules 2005 Part 11 Cases Cited: Allstate Life Insurance Co & Ors v Australia and New Zealand Banking Group Ltd (No 33) (1996) 64 FCR 79; 137 ALR 138 BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 Brown v Heathcote County Council [1986] 1 NZLR 76 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Caparo Industries Plc v Dickman [1990] 2 AC 605; 1 ACSR 636 DAO v R [2011] NSWCCA 63; 278 ALR 765 Di Sora v Phillipps (1863) 10 HL Cas 624; 11 ER 1168 Eades v Gunestepe [2012] NSWCA 204 Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] All ER (D) 139; [2003] 1 AC 32 Goliath Portland Cement Co Ltd v Bengtell & Anor [1994] 33 NSWLR 414 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Henry v Henry [1996] HCA 51; 185 CLR 571 House v R [1936] HCA 40; 55 CLR 499 James Hardie & Anor v Hall as Administrator of the Estate of Putt (1998) 43 NSWLR 554 Kars v Kars [1996] HCA 37; 187 CLR 354 Konamaneni & Ors v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 at 1299; [2001] EWHC Ch 470 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 41 Murakami v Wiryadi & Ors [2010] NSWCA 7; 268 ACR 377 National Mutual Holdings Pty Ltd v The Sentry Corp (1989) 22 FCR 209; 87 ALR 539 at 556 Northern Territory v Mengel [1995] HCA 65; 185 CLR 307 Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; 165 CLR 197 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36 Pilgrim Shipping Co Ltd v The State Trading Corp of India Ltd [1975] 1 Lloyd's Rep 356 Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) [2008] HCA 54; 238 CLR 265 Regie National des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 Singer v Berghouse [1994] HCA 40; 181 CLR 201 Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 Studorp Ltd v Lance John Robinson [2012] NSWSC 148 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; 171 CLR 538 Warren v Coombes [1979] HCA 9; 142 CLR 531 Woodhouse AC Israel Cocoa SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23; [1972] AC 741 Yorkshire Insurance Co v Campbell [1916] HCA 75; 22 CLR 315 Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009) Law Book Co "Foreign Law in English Courts" (1998) 109 LQR 142 Bell, M Davies A.S Brereton P L G "Nygh's Conflict of Laws in Australia" 8th ed Lexis Nexis (2010) Category: Principal judgment Parties: Studorp Ltd - Applicant/Cross Respondent Lance John Robinson - Respondent/Cross Applicant Representation: Counsel: Mr GM Watson SC/Mr J Sheller - Applicant/Cross Respondent Mr PCB Semmler QC/Mr T Zougavitas - Respondent/Cross Applicant Solicitors: DLA Piper Australia - Applicant/Cross Respondent Turner Freeman Lawyers - Respondent/Cross Applicant File Number(s): 2011/372072 Decision under appeal Citation: [2012] NSWSC 148 Date of Decision: 2012-03-01 00:00:00 Before: Adamson J File Number(s): 2011/372072 Judgment 1ALLSOP P: I have read the reasons in draft of Hoeben JA to be published. I agree with the orders that he proposes and with his reasons. I would add the following. 2The proceedings below had some aspects requiring comment so that the structure of these applications can be understood. Studorp Ltd ("Studorp") succeeded below in its argument that the service below was unauthorised and should be set aside. The primary judge also made the following declaration in that regard: "Declare that the Dust Diseases Tribunal has no power to hear or decide proceedings No. DDT 96 of 2011." 3In this Court, Studorp has succeeded in defending the challenge made by Mr Robinson to the conclusions of the primary judge in that regard. In those circumstances, both below and in this Court, the issue of a stay did not arise and was, in that sense, moot, at least by reference to the proceeding before this Court. The primary judge, however, having received evidence and having heard full argument on the question of the Tribunal as a forum, made a declaration in the following terms: "Declare that the Dust Diseases Tribunal is not a clearly inappropriate forum for the determination of the defendant's claim for damages against the plaintiff for damages for dust-related injuries as set out in the DDT Statement of Claim." 4Thus, the question of the inappropriateness of the Tribunal should be dealt with in order, at least, to decide whether a declaration made by the primary judge affecting the rights of the parties should remain on foot. For the following reasons, it should be set aside. 5The declaration was made that the Tribunal was not a clearly inappropriate forum. The part of the Uniform Civil Procedure Rules sought to be used to authorise service (Part 11) relevantly speaks of "an inappropriate forum", not "a clearly inappropriate forum". However, if, as the primary judge contemplated, Supreme Court proceedings could be served with the aim of bringing the defendant Studorp to the jurisdiction to be remitted to the Tribunal under the Dust Diseases Tribunal Act 1989 (NSW) (the "DDT Act"), s 12, the "clearly inappropriate" test would be relevant, because the task being engaged in would not be setting aside the originating process of the Supreme Court under UCPR 11.7, but a stay of the Tribunal proceedings based on the applicable principle from Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; 171 CLR 538. No particular point was made in argument about any difference between the two tests expressed with and without the adverb "clearly". There seems to me to be a difference in quality and emphasis with the addition of the adverb. 6I would reserve consideration as to whether service of Supreme Court proceedings under Part 11 or Part 11A for the specific purpose of remitter to the Tribunal (and not the exercise of the Court's jurisdiction that is denied by the DDT Act) may not involve a question of abuse. 7The question of the standard of appellate review of the conclusion of the primary judge that the Tribunal is not a clearly inappropriate forum was not the subject of full argument. The comments of Spigelman CJ in Murakami v Wiryadi [2010] NSWCA 7; 268 ALR 377 at [33] and [34] have significant force. The nature of appellate review and the intensity of appellate scrutiny depend upon the issue and question under review: see generally DAO v R [2011] NSWCCA 63; 278 ALR 765 at [83]-[96]. The nature of the evaluation here - the inappropriateness, or not, as the case may be, of a particular forum for litigation, is a standard that lacks the social and moral values that can be found in standards or evaluations such as "proper" and "adequate" in relation to testamentary acts: Singer v Berghouse [1994] HCA 40; 181 CLR 201, and may be seen to be closer to the kind of evaluation as to unjustness for the operation of the Contracts Review Act 1980 (NSW), as to which see Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [38] and [107] and the discussion in DAO at [96]. 8It is unnecessary to resolve this question, because, like Hoeben JA, I am of the view that if the evaluation founding the exercise of power by the primary judge can be seen as truly discretionary, there was an error sufficient to vitiate the decision. The primary judge took into account as an operative consideration the registration of Studorp's parent and an associated company in New South Wales. This, in my respectful view, was to give excessive weight to a possibly relevant fact of no great importance in the choice before her Honour: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 41. It therefore falls to this Court to evaluate New South Wales as a forum. The terms of the DDT Act providing for the exclusive jurisdiction of the Tribunal transform that question into whether the Tribunal is a clearly inappropriate forum. 9There was no doubt here that (and no argument but that) New Zealand law was the lex causae. 10In creating the Tribunal, the Parliament of New South Wales placed confidence in its skill and expertise in dealing with questions of fact. There was to be no appeal on such questions. Section 32 of the DDT Act is in the following terms: "(1) A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court. (2) The Supreme Court may, on the hearing of any appeal under this section, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit. (3) A decision of the Supreme Court on an appeal under this section is binding on the Tribunal and on all parties to the proceedings in respect of which the appeal was made. (4) The following appeals under this section may be made only by leave of the Supreme Court: (a) an appeal from an interlocutory decision, (b) an appeal from a decision as to costs only, (c) an appeal from a final decision, other than an appeal that involves (directly or indirectly) a claim for, or a question relating to, an amount of $20,000 or more, (d) an appeal from a decision made with the consent of the parties." 11There is, of course, the possibility of some examination of factual consideration in any case in the supervisory jurisdiction of this Court for jurisdictional error. This, however, can be put to one side. 12It will be necessary to ascertain and apply New Zealand law to consider whether a duty of care existed, to identify the content of such duty, to consider whether there was breach of such duty, and, if so, to identify the appropriate damages principles and then apply them to the facts. A party in New South Wales will have the advantage and protection of appellate review of legal questions: see generally Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at 652-653 [9]-[11]. Parliament can be taken to have been of the view that that protection and review was essential to the fair disposition of such cases, to both parties. Such questions as the existence and content of a duty of care, the relevant legal principles concerning causation and damage will all, ordinarily, be legal questions. 13Here, however, foreign law being a question of fact, such questions of New Zealand law will be determined as factual matters and not be subject to appeal. In this context, the explanation for the delay in judgment and the expression of legal development in New Zealand by Cooke P in Brown v Heathcote County Council [1986] 1 NZLR 76 at 78-79 (specifically referred to by Mr Hodder in his expert statement) should be borne in mind. 14There will be important questions as to the existence and content of duty and the principles to govern the recovery of damages which, though "legal" in one sense, will necessarily be treated as factual questions to prove and be decided upon as, or substantially as, questions of fact. This is an important consideration distinguishing this case from Puttick v Tenon Ltd [2008] HCA 54; 238 CLR 265. There, French CJ, Gummow, Hayne and Kiefel JJ stated that a foreign lex causae was not alone sufficient to make an Australian court inappropriate. The presence of the lex causae was simply a product of the operation of Australian conflicts of law rules: see Puttick at [32]. In Puttick the relevant tribunal was the Supreme Court of Victoria. All "legal" questions as questions of fact would have been open to appellate scrutiny. 15Here, the parties will have no opportunity for relevant "legal" scrutiny by reason of the governing law being foreign. The controversy will thus be determined by a tribunal, the legal and practical operation of which can be seen as different to that intended by Parliament for controversies of this character. The New South Wales Parliament did not intend that the Tribunal operate free of appellate review on legal questions, yet if the Tribunal deals with a controversy that has important issues of law necessarily at its heart, that will be the case, because the tort was committed outside Australia. 16It is important to draw the distinction between the ascertainment of the existence, nature and scope of any rules and principles of the law of the foreign jurisdiction and the effect of the application of those rules and principles, as ascertained to the facts of the particular case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 87 ALR 539 and also Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1996) 137 ALR 138 and 141 and cases cited thereafter. In Sentry, Gummow J said that the former was a question of fact, the latter a question of law. It is the law in Australia that evidence can be led as to the former, but not the latter. Whether that means that all questions of the application of a posited standard found as a question of fact to other found facts are legal questions may perhaps need substantiation. If, as in Di Sora v Phillipps (1863) 10 HL Cas 624; 11 ER 1168, the foreign law concerned the rules of interpretation, and the residual task of application of the foreign law was the construction of a document, it may readily be seen that that residual question is one of law, because it is one that concerns the construction of a document: Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 at 736; Pilgrim Shipping Co Ltd v The State Trading Corp of India Ltd [1975] 1 Lloyd's Rep 356 at 361 and 366; Woodhouse AC Israel Cocoa SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 at 58-59, 63, 64-65; [1972] AC 741 at 755, 759, 761, 766 and 770; Yorkshire Insurance Co v Campbell [1916] HCA 75; 22 CLR 315 at 317. 17Assuming as correct for the purposes of the resolution of this case the correctness of the distinction drawn by Gummow J in Sentry, there will still be important questions of legal principle to be ascertained and given content in these proceedings. For instance, the rule and principle governing the recovery, or not as the case may be, of damages for voluntary care by third parties will be an important legal issue. 18The relevant principle as to the existence and content of any duty of care will arise. Whether such will involve questions of fact or law for the Tribunal will be open to significant debate. In the nature of litigation, those debates will be difficult to anticipate with precision. 19It seems to me that it is important to appreciate that the framework of the case being heard in the Tribunal will depart in significant respects from the legal and practical reality in appellate structure intended by Parliament. 20This issue was not raised before the primary judge. It was raised and argued in this Court. Mr Robinson argued strenuously that even taking it into account, Studorp had not proved by reference to the issue that the Tribunal was inappropriate. 21I would prefer not to make a declaration in these circumstances. Nevertheless, the considerations to which I have referred would be a powerful basis for a conclusion that the Tribunal was an inappropriate or clearly inappropriate forum in which to hear a case that is governed by the law of New Zealand and which could be heard conveniently in New Zealand. It is to be noted that the Trans-Tasman Proceedings Act 2010 (Cth) is not relevantly in force yet. 22MEAGHER JA: I have had the advantage of reading in draft the reasons of Allsop P and Hoeben JA. 23I agree, for the reasons given by the primary judge and by Hoeben JA, that her Honour was correct to set aside the service outside Australia of the statement of claim filed in the Dust Diseases Tribunal because that service was not authorised by Part 11 of the UCPR or by s 10 of the Dust Diseases Tribunal Act 1989 (the DDT Act) or under the Dust Diseases Tribunal Regulations 2007 (without deciding whether the regulation making power in s 32H extends to authorising service of initiating process outside Australia). 24I also agree, for the reasons given by Allsop P and Hoeben JA, that her Honour erred in the application of the "clearly inappropriate forum" test, accepting, without deciding, that it was necessary to show error in that decision-making process. For that reason, Studorp should be granted leave to appeal, that appeal should be allowed and the declaration that the Tribunal was not a clearly inappropriate forum to determine Mr Robinson's claim should be set aside. 25By its draft notice of appeal, Studorp also seeks a declaration that the Tribunal was a clearly inappropriate forum. Although that question was argued in this Court, I do not consider that it should or can be decided. 26As the service of the statement of claim in proceedings No DDT 96 of 2011 has been set aside, it is not necessary to consider whether those proceedings should have been stayed on the basis that the Tribunal is a clearly inappropriate forum. The reason that it is said there remains some utility in deciding that question is that fresh proceedings could be commenced in the Supreme Court and served outside Australia in accordance with UCPR Part 11 and those proceedings then transferred to the Tribunal as is required by s 12 of the DDT Act. However, as Allsop P observes, the commencement of such proceedings contrary to the prohibition in s 11(1) of the DDT Act and for the purpose of their being remitted to the Tribunal, itself raises questions as to whether those proceedings would be an abuse of the process of the Supreme Court. That question would ordinarily arise for consideration before any application for a stay of the proceedings. 27I also agree with the observations made by Allsop P as to the significance in this case, in relation to the question of inappropriate forum, of the fact that under s 32 of the DDT Act the right of appeal from decisions of the Tribunal is limited to questions of law. 28It is not in issue that New Zealand law is the relevant lex causae and that the existence, nature and scope of any rules and principles of that law would be treated as issues of fact to be proved before the Tribunal. The determination of those issues would not be the subject of any right of appeal. The application of those rules and principles as determined to the facts as found may involve a question of law for which there is a right of appeal. However, whether that will be so in all such cases is by no means clear: see National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209 at 226; and compare the discussion in Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009) Law Book Co at paras [4.125]-[4.140]. 29If, as is likely, Mr Robinson's claim includes damages in respect of gratuitous services, it will be necessary to address whether such a claim is recognised and allowed under New Zealand law. If under New Zealand law there are no recognised and specific rules or principles which govern the making of such a claim, it may be necessary to consider, in the way the High Court did in Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161, whether what was once considered a "novel legal doctrine" should be recognised as part of the law of New Zealand: Kars v Kars [1996] HCA 37; 187 CLR 354 at 365. That question would have to be addressed by the Tribunal. Under Australian law it would be answered in the way which most comfortably conforms to "established legal authority taking into account any relevant considerations of legal principle and legal policy": Kars v Kars at 365; see also Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; 165 CLR 197 at 252; and Northern Territory v Mengel [1995] HCA 65; 185 CLR 307 at 347. It may be suggested that a New Zealand court is better placed to deal with that question than the Tribunal, being a question that involves considerations of legal policy in the development of the law. On the other hand, it may be said that the essential similarities between the Australian and New Zealand legal systems lessen the significance of this: see Puttick v Tenon Ltd [2008] HCA 54; 238 CLR 265 at [31]. 30The significance of the limited right of appeal in s 32 was raised as a relevant factor for the first time in this Court. Mr Robinson did not have a full opportunity to consider and address its ramifications including as to the existence and nature of appeal rights should the matter proceed in New Zealand. For that reason, the question of inappropriate forum should not be decided on this appeal. 31Finally, in relation to Mr Robinson's notice of contention and costs, I agree with the reasons of Hoeben JA. I also agree with the orders which his Honour proposes. 32HOEBEN JA: Nature of proceedings The applicant (Studorp) seeks leave to appeal from the decision of Adamson J that the Dust Diseases Tribunal of NSW (DDT) was not an inappropriate forum in which to hear and decide the respondent's (Mr Robinson) claim. 33Mr Robinson seeks leave to cross-appeal from the decision of Adamson J setting aside the service of his Statement of Claim, filed in the DDT in proceedings DDT96/2011. Mr Robinson also seeks leave to cross-appeal from that part of the judgment of Adamson J which declared that the DDT has no power to hear and decide proceedings DDT96/2011. 34Mr Robinson, by way of Notice of Contention, wishes to support the decision of Adamson J that the DDT was not an inappropriate forum in which to hear and decide his claim on the basis that s 25(3) of the Dust Diseases Tribunal Act 1989 (the DDT Act) is a procedural provision which would substantially shorten the proceedings and because proceedings in the DDT would have the advantage of the claims resolution process which governs such proceedings. 35The Court heard the applications for leave to appeal and to cross-appeal and the appeals concurrently. Factual background 36Mr Robinson was born in New Zealand in 1958. He alleges that between 1968 and 1974 he was exposed to asbestos dust and fibre while in the company of his father, who was a carpenter handling asbestos products said to have been manufactured by Studorp. The exposure took place in and around Howick, a suburb of Auckland. 37Mr Robinson has developed the condition of asbestos related pleural disease (ARPD). Mr Robinson has lived in Australia since 1988 and currently resides at Tweed Heads in NSW. His father lives nearby. Mr Robinson alleges that Studorp negligently exposed him to asbestos in New Zealand from products manufactured and supplied by it. 38Studorp was incorporated in New Zealand and operated only in New Zealand. It manufactured and supplied asbestos products to New Zealanders in New Zealand. Although Studorp is a New Zealand company, its parent and related companies (ABN 60 Pty Ltd, formerly James Hardie Industries Ltd; and Amaca Pty Ltd, formerly James Hardie & Co Pty Ltd) are registered in New South Wales. One of Studorp's three directors resides in Chicago but the other two live in New South Wales. 39Mr Robinson filed the Statement of Claim in the DDT on 11 April 2011 and purported to serve it, along with other documents, on Studorp at its registered address in New Zealand. By summons, filed 21 November 2011, Studorp sought orders setting aside the service of the Statement of Claim and staying the proceedings in the DDT and a declaration that the DDT was a clearly inappropriate forum for hearing and deciding Mr Robinson's claim. 40It appears to have been agreed between the parties that Mr Robinson consults a GP in Tweed Heads, but that his specialists are in Brisbane. Any documents relating to the claim are located in New Zealand. Liability witnesses, apart from Mr Robinson and his father, reside in New Zealand and are elderly. It was agreed in this Court that in any proceedings between Mr Robinson and Studorp, the applicable law would be that of New Zealand. Relevant statutory provisions 41The following statutory provisions are relevant. 42Rule 1.5 Uniform Civil Procedure Rules 2005 (UCPR) provides: " 1.5 Application of these rules (1) Subject to subrule (2), these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule. (2) In respect of each court referred to in Column 1 of Schedule 1, civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of each provision of these rules referred to in Column 4 of that Schedule in respect of those proceedings. (3) The exclusion of civil proceedings from any such provision is subject to such conditions, limitations or exceptions as are specified in Column 4 of Schedule 1 in relation to that provision." 43In respect of the DDT, Schedule 1 relevantly provides: Column 1 Column 2 Column 3 Column 4 Dust Diseases Tribunal All civil proceedings Part 9 Part 15, Division 3 Part 21 Part 22 44Part 11 UCPR provides for service of documents outside Australia. It provides: " Part 11 Service of documents outside Australia and service of external process Division 1 General 11.1 Application of Part (1) This Part applies to proceedings in the Supreme Court. (2) For the purposes of this Part, a reference to Australia includes a reference to the external Territories. 11.2 Cases for service of originating process (1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6. (2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention. 11.3 Notice to the defendant served outside Australia (1) If originating process is intended to be served on a defendant outside Australia, a notice to that effect must be included in the originating process. 11.4 Leave for plaintiff to proceed where no appearance by defendant (1) If originating process is served on a defendant outside Australia, and the defendant does not enter an appearance, the plaintiff may not proceed against the defendant except by leave of the Supreme Court. (2) A motion for leave under subrule (1) may be made without serving notice of motion on the defendant." ... 11.6 Mode of service A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected. 11.7 Setting aside originating process served outside Australia (1) The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia. (2) Without limiting subrule (1), the Supreme Court may make an order under this rule: (a) on the ground that the service of the originating process is not authorised by these rules, or (b) on the ground that the court is an inappropriate forum for the trial of the proceedings." 45Schedule 6 relevantly provides that an originating process may be served outside Australia in certain circumstances which include: "(e) if the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in New South Wales caused by a tortious act or omission wherever occurring ..." 46The DDT Act relevantly provides for the jurisdictional functions of the DDT as follows: "10 Jurisdiction and functions of the Tribunal (1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12. (2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act. ... (4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court. 11 Claims for damages for dust diseases etc to be brought under this Act (1) If: (a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and (b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and (c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death, proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal ." 47"Decision" is defined by s 3 of the DDT Act to include "judgment, order and ruling". 48Section 12 of the DDT Act provides that where proceedings of the kind referred to in s 11(1) are brought or are pending in the Supreme Court, the Registrar of that Court must transfer the proceedings to the DDT. 49Section 25(3) of the DDT Act provides: "(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties." 50Section 32H of the DDT Act confers a regulation-making power on the Governor with respect to a list of topics, none of which refers to service of originating process outside the jurisdiction. 51Clause 19 of the Dust Diseases Tribunal Regulations 2007 (DDT Regulation) relevantly provides: " 19 Effect of claim being subject to claims resolution process (1) While a claim is subject to the claims resolution process: (a) the parties to the claim must comply with the provisions of this Part, and (b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and (c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation. (2) This clause does not affect the application of the practice and procedures of the Tribunal with respect to: (a) the service of the statement of claim on the defendant, including the service of the statement of claim outside Australia , or..." 52Clause 21 of the DDT Regulations relevantly provides: " 21 Service of documents (1) Rules 10.5-10.19, 10.21 and 10.22 of the Uniform Civil Procedure Rules 2005 apply to and in respect of the service of documents for the purposes of this Part in the same way as they apply to and in respect of the service of documents for the purposes of proceedings in the Tribunal. (2) In the case of a defendant who is outside Australia, any document to be served for the purposes of this Part may be served on the defendant: (a) in the same manner as that in which the relevant statement of claim was served on the defendant, or (b) in such other manner as the parties may agree." Proceedings before Adamson J 53In the proceedings before Adamson J, Studorp was the plaintiff and Mr Robinson was the defendant. Her Honour upheld Studorp's submission that although Part 11 was not referred to in Schedule 1 of the UCPR, it applies only to proceedings in the Supreme Court. As a result, UCPR 1.5 was not sufficient to authorise effective service of the DDT originating process outside the jurisdiction if a plaintiff does not submit to the DDT's jurisdiction. Her Honour said: "42 I prefer the plaintiff's construction of Rule 1.5, Schedule 1 and Part 11 of the UCPR. The fact that the rule-making body saw fit to provide expressly that Part 11 applies to proceedings in the Supreme Court is sufficient, in my view, to displace any inference that the absence of reference to Part 11 in Column 4 of Schedule 1 means that it applies to the DDT. 43 I do not consider that s 10(4) of the DDT Act has the effect for which the defendant contends. To provide, as Parliament has done, that the DDT has the "same power to make decisions as the Supreme Court would" is not to confer all the jurisdiction and powers of the Supreme Court, together with the rights of parties who file originating process in this Court, but merely the power to make "decisions". Although "decision" includes "judgment, order and ruling", each of these matters relates to an exercise of judicial power, rather than a privilege of a party to serve originating process in a particular way and thereby invoke exterritorial jurisdiction. UCPR 11.2, in effect, confers a right on a party to invoke the Court's jurisdiction by serving originating process outside the jurisdiction if the matter concerns certain subject matters which have a connection with the jurisdiction. For these reasons I do not consider s 10(4) authorises the DDT to exercise jurisdiction in circumstance where its originating process has been served outside Australia, in circumstances where the named defendant does not appear. 44 Nor do I consider that the DDT Regulations, which on their face, appear to contemplate that a statement of claim can be served outside the jurisdiction, can take the matter any further. In so far as they purport to authorise such service on a party who objects to such jurisdiction, they may be beyond the regulation-making power in s 32H of the DDT Act and, if so, would be read down to preserve their validity in accordance with s 32 of the Interpretation Act 1987 so as to authorise service on a party who subsequently appears in the DDT and can therefore be taken to have voluntarily submitted to the jurisdiction of the DDT. They are not, of themselves, sufficient to override the statutory provisions referred to above. 45 As the submissions of the parties highlight, there is some tension between the following three provisions: prohibition against a party bringing proceedings for damages for a dust-related condition in s 11 of the DDT Act; the express contemplation that such might occur in s 12 of the DDT Act; and UCPR, Part 11, which I have construed as applying only to proceedings in this Court. 46 Legislation is to be read as a whole. It is to be presumed that "Parliament intended its legislation to operate rationally, efficiently and justly, together": Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 724, per Kirby P. 47 I consider that the prohibition contained in s 11 ought to be read as qualified by UCPR Part 11. In other words, a party may commence proceedings in this Court for damages for a dust-related condition in order to obtain the right to serve the originating process outside Australia and have this Court's jurisdiction invoked if the defendant in that process is not prepared to submit to the jurisdiction of the DDT. 48 The Registrar's obligation under s 12(1) of the DDT Act to transfer any proceedings of that nature commenced in this Court must, in my view, be qualified by this Court's exclusive jurisdiction to give effect to service of the originating process outside Australia. 49 Section 12(1) of the DDT Act should, in my view, be read as if expressly providing that the obligation to transfer such proceedings to the DDT is subject to the determination by this Court of any questions of service of originating process outside the jurisdiction. The exclusive jurisdiction of the DDT is not compromised or trenched in any way by the interpretation I have given these provisions. 50 It follows from what I have said above that the defendant would have been entitled to serve originating process on the plaintiff in New Zealand within the UCPR by complying with New Zealand law as to service, had it been filed in this Court rather than the DDT. 51 Accordingly, the DDT Statement of Claim was not served in accordance with the rules." 54In relation to whether the DDT was an inappropriate forum, her Honour said: "58 It appears from the passage from Stavar set out above that there is a real prospect that s 23, s 25, s 25A and s 25B of the DDT Act will be found to be substantive and therefore inapplicable to the defendant's claim against the plaintiff in the DDT, since they do not form part of the law of New Zealand, which is the governing law of the tort. In light of the current state of the law, I cannot assume that the defendants will have the benefit of these provisions in the DDT. 59 I turn therefore to consider the factors relevant to the determination of whether the DDT is an inappropriate forum. In favour of the proposition are: (1) the governing law is the law of New Zealand which accordingly will have to be proved as a matter of fact in the DDT; (2) the plaintiff's witnesses on liability are likely to be elderly and located in New Zealand; (3) the plaintiff's documents are in New Zealand; and (4) there is a real prospect that the evidentiary provisions available in local proceedings in the DDT will be regarded as substantive and therefore would not be available in the proceeding if it were heard in the DDT. The usual modus operandi of the DDT would accordingly not apply if these proceedings were heard there. 60 On the other hand the following considerations tend against the DDT being an inappropriate forum: (1) the defendant, his father, his wife, his general practitioner and treating clinicians live in or near New South Wales; (2) although there are distinctions between the law of negligence as it has developed in New South Wales and in New Zealand law, these distinctions are likely to be reasonably subtle having regard to their both being derived from the common law of England. They are unlikely to produce significantly more complexity than the differences in the law of torts in various States of Australia, which are occasioned by different statutory regimes, against the background of the common law; and (3) although the plaintiff is a New Zealand company, its parent company and associated company are registered in New South Wales. 61 On balance I do not consider the governing law of the tort to be sufficient to outweigh the three factors listed above as tending to point against the DDT being an inappropriate forum. 62 Leaving aside the question of service which has been dealt with separately above, I am not satisfied that the DDT is an inappropriate forum, much less a clearly appropriate one." Studorp's application for leave to appeal 55There was an initial issue as to the nature of the appeal. Studorp submitted that an appeal against a finding that a forum was or was not clearly inappropriate involved an application of facts found to a legal test. It submitted that all it had to do was to establish error on a Warren v Coombes [1979] HCA 9; 142 CLR 531 basis. Mr Robinson submitted that this Court should only intervene if error of the kind referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 was established by Studorp. Both sides relied upon the discussion in Murakami v Wiryadi & Ors [2010] NSWCA 7 at [32] - [35] where Spigelman CJ (with whom McColl JA and Young JA agreed) said: "32 At first Mr Meek accepted the submission of Mr Bell that the appeal involved a discretionary judgment to which the approach in House v The King (1936) 55 CLR 499 applied. However, in the course of oral submissions, Mr Meek, in response to a suggestion from the bench that the position of his client would be advanced if a different approach, such as that identified in Warren v Coombes (1979) 142 CLR 531, applied, did submit that House v The King did not apply. He did not go on to make any submissions as to why that would be the case or what difference it would make. 33 In my opinion, the application of the "clearly inappropriate forum" test raises a real issue in this respect. An appellate court is in as good a position as a trial judge to formulate the judgment for which the Voth test provides. The making of an order for a permanent stay can be said to involve the exercise of a discretion. (See, eg, Oceanic Sun Lines supra at 247-248; Garsec Pty Ltd v His Majesty the Sultan of Brunei [2008] NSWCA 211; 250 ALR 682 at [93]-[94]; Bank of America v Bank of New York [1995] HCA 4; ATPR 40,334 (41-390) at 40,336; McGregor v Potts [2005] NSWSC 1098; 68 NSWLR 109 at [35].) However, the word 'discretion' is often adopted in circumstances where the word 'judgment' would be more appropriate. 34 It is not necessary in every case that requires a process of balancing conflicting considerations to conclude that what is involved is a discretion in the House v The King sense. (See, e.g, Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; 14 BPR 26,639 at [35] and the authorities referred to therein; New South Wales Crime Commission v Vu [2009] NSWCA 349 at [7] and the authorities referred to therein; Director of Public Prosecutions v El Mawas [2006] NSWCA 154; 66 NSWLR 93 at [64] - 70]; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at [37] - [40].) 35 Nevertheless, in the present circumstances, notwithstanding Mr Meek's oral submission, in the absence of any elaboration as to why House v The King should not apply, this Court should apply that approach." See also the discussion by Basten JA in Eades v Gunestepe [2012] NSWCA 204 at [2] - [9]. 56There is some force in the submission of Studorp. In a stay application of this kind it is necessary for the Court to evaluate whether a particular factual circumstance exists so as to meet a specified legal test. This usually involves fact-finding and a decision as to whether the facts, as presented, fulfill the criterion of inappropriate or clearly inappropriate. While the fact finding exercise does not involve a true exercise of discretion, the ultimate decision as to inappropriateness or not may do so, i.e. there may still be discretionary considerations as to the choice that has to be made as to whether or not to grant a stay. 57It is not necessary, nor appropriate, to determine this question. Full argument was not received on the point. Studorp submitted that even if it had to meet the higher test set out in House v R, it could do so. 58Studorp submitted that by taking into account as a factor against granting a stay that Studorp's parent company and an associated company were registered in New South Wales, her Honour took into account an irrelevant consideration. I agree. This was not a matter which was relevant to whether or not the DDT was an inappropriate forum. That fact had nothing to do with any aspect of the proposed litigation. 59It follows that I am satisfied that error of an operative kind has been demonstrated in her Honour's approach and that on this issue the Court can examine the factual basis for her Honour's decision and to the extent necessary, re-exercise her Honour's discretion. 60Before proceeding further, it is necessary to have regard to the nature of the test which has to be applied. With one qualification, the issues in this case turn on the application to the facts of the well established test for the grant of a stay of proceedings on forum non conveniens grounds determined by the High Court in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; 171 CLR 538 and affirmed subsequently, (Henry v Henry [1996] HCA 51; 185 CLR 571; Regie National des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491; BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400; Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) [2008] HCA 54; 238 CLR 265). 61The principle in Voth was conveniently restated by the plurality (French CJ, Gummow, Hayne and Kiefel JJ) in Puttick as follows: "27 In Voth v Manildra Flour Mills Pty Ltd the Court held that a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for determination of the dispute. The reasons of the plurality in Voth pointed out that the focus must be "upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum". " 62The qualification to which I referred emerges from the wording of 11.7 UCPR which refers to granting a stay "on the ground that the court is an inappropriate forum for the trial of the proceedings". The formulation of the test in the rule does not use the word "clearly" to qualify it. The significance of the absence of the word "clearly" is not obvious, although as a matter of simple English, the phrase "an inappropriate forum" is not as emphatic as "a clearly inappropriate forum". In this case nothing appears to turn on the distinction. 63Studorp submitted that her Honour had wrongly characterised its submission as to the application of New Zealand law when she said: "Although there are distinctions between the law of negligence as it has developed in New South Wales and in New Zealand law, these distinctions are likely to be reasonably subtle having regard to their both being derived from the common law of England." 64Studorp submitted that a proper reading of the expert report of Mr Hodder SC showed that there were marked differences between the law of New Zealand and that of Australia. It submitted that apart from negligence in the conduct of councils when inspecting defective buildings, there had been little development of that tort since the enactment in the 1970's of the New Zealand accident compensation acts. Mr Hodder SC made it clear that "proximity" and "policy" were two important considerations when New Zealand courts considered the existence of a duty of care. The decision in Caparo Industries Plc v Dickman [1990] 2 AC 605; 1 ACSR 636 was also very influential. These were not concepts currently applied to the law of negligence in Australia. 65Studorp submitted that there were aspects of the law of negligence and the damages flowing therefrom which would arise in this case, but which had not been developed or applied by the courts in New Zealand. This would involve the DDT making determinations as to the likely development of New Zealand law, not merely applying established principles. It submitted that in such circumstances, it was inappropriate for the DDT to be making such determinations. This was something which should be done by a New Zealand court. 66An example used to support that submission was the operation of the "Fairchild principle" (a reference to the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] All ER (D) 139; [2003] 1 AC 32. This was a mesothelioma case which raised the question of causation where there were multiple defendants, all of whom had exposed the plaintiff to asbestos. Mr Hodder SC said when specifically asked about Fairchild: "A leading commentator suggests that, if the issue arose, New Zealand courts would likely follow the English lead in a multiple defendant case rather than leave the plaintiff without remedy. I agree". Australian courts have declined to follow Fairchild. 67Studorp submitted that a similar situation would arise with damages. It submitted that a head of damage such as a Griffiths v Kerkemeyer [1977] HCA 44; 139 CLR 161 claim does not appear to have been the subject of consideration by New Zealand courts. Studorp submitted that this issue would arise in Mr Robinson's claim. The DDT would have to engage in a predictive exercise as to the likely development of New Zealand law on tortious damages when it heard the matter. Studorp submitted that such a process would be inappropriate since this was a function which should be carried out by New Zealand courts. 68During the course of the appeal, Studorp made a submission which it conceded had not been made before the primary judge. It submitted that it was entitled to raise this matter because it involved a question of law only. In that regard, Studorp relied upon the observations made generally in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36. 69Studorp submitted that an important factor in determining whether the DDT was a clearly inappropriate forum was that any findings which it made as to the content of the law of New Zealand and its likely development would be findings of fact. As such they would be immune from appeal under the appeal provisions applicable to the DDT (s 32 DDT Act). Studorp submitted that such an issue was likely to arise because an important head of damage claimed by Mr Robinson was for care pursuant to the decision in Griffiths v Kerkemeyer. It submitted that the report of Mr Hodder SC did not indicate how a New Zealand court would assess that head of damage. Studorp submitted that whichever way the DDT decided, the disadvantaged party would have no recourse by way of appeal from its findings. 70Studorp submitted that the ability of an appeal court to revisit the issue of foreign law is an important right in a system where the content of that law is determined and applied by local first instance judges who might have little or no familiarity with that law and who would be relying upon expert evidence adduced by the parties. Studorp cited the observation of Professor Richard Fentiman in "Foreign Law in English Courts" (1998)109 LQR 142 at 154 where he said: "The fact that a judge's determination of a question of foreign law is open to appeal provides an important control on the process of proof." 71Studorp accepted that the situation might be different if there were agreement as to the content of the foreign law (James Hardie & Anor v Hall as Administrator of the Estate of Putt (1998) 43 NSWLR 554 at 573C-D. There was no such agreement in this case. Studorp submitted that when the content of foreign law is controversial, it was even more inappropriate for it to be determined by a local court from which there is no right of appeal. It cited the following from Bell M Davies A.S Brereton P L G "Nygh's Conflict of Laws in Australia" 8th ed Lexis Nexis (2010) at 8.36: "The significance of foreign law may be elevated when controversial issues under it are anticipated, such that it would be better for them to be decided by the court which can authoritatively rule on them and whose judgments are subject to appeal." The authors supported that statement by reference to the judgment of Lawrence Collins J in Konamaneni & Ors v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 at 1299; [2001] EWHC Ch 470 at [170]. 72Studorp submitted that the fact that no appeal would lie from the DDT's determination of the content of New Zealand law in an area where the evidence of Mr Hodder SC established that New Zealand law was developing or unclear was a further reason why the DDT was a clearly inappropriate forum for the trial of these proceedings. 73Mr Robinson submitted that the fact that New Zealand law would apply to his claim was an important consideration, but it was not determinative. He relied upon the following statements of the plurality in Puttick: "31 ... But it by no means follows that showing that the tort which is alleged is, or may be, governed by a law other than the law of the forum demonstrates that the chosen forum is clearly inappropriate to try the action. The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction. Moreover, considerations of geographical proximity and essential similarities between legal systems, as well as the legislative provisions now made for the determination of some trans-Tasman litigation, all point against treating the identification of New Zealand law as the lex causae as a sufficient basis on which to conclude that an Australian court is a clearly inappropriate forum to try a dispute. 32 ... Rather, the Court of Appeal should have held that it was not possible to decide what would be the lex causae. And the Court of Appeal should then have held that even if the lex causae was later shown to be the law of New Zealand, that circumstance, coupled with the fact that most evidence relating to the issues in the case would be found in New Zealand, did not demonstrate that the Supreme Court of Victoria was a clearly inappropriate forum." 74Mr Robinson submitted that the report of Mr Hodder SC did not go so far as to say that a Griffiths v Kerkemeyer claim did not exist in New Zealand. He submitted that submissions concerning the development of New Zealand tort law and in particular whether Griffiths v Kerkemeyer damages would be available in New Zealand, involved speculation and were not justified by the content of the report. He submitted that to attempt such a degree of analysis was to descend to a level of complexity which was not open on the evidence. 75Mr Robinson did not accept that Studorp could raise the restriction of appeal rights from the DDT in the appeal. This was because issues of fact were involved. He submitted that there was no evidence about what appeal rights existed under New Zealand law if the matter proceeded before a New Zealand court. This was a factual issue, in relation to which evidence could have been called before the primary judge. 76Mr Robinson submitted that Studorp had overstated the importance of appeal rights in relation to the content of foreign law. He submitted that even in cases where an appeal on a question of fact was permitted, the capacity to check and control was circumscribed by the evidence of skilled witnesses who are called at first instance to prove the foreign law as a question of fact. He submitted that even though the content of foreign law was to be treated as an issue of fact upon which evidence was receivable, the effect of the application of that law so ascertained was a question of law (National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 207; 87 ALR 539 at 556 (Gummow J); Allstate Life Insurance Co & Ors v Australia and New Zealand Banking Group Ltd (No 33) (1996) 64 FCR 79; 137 ALR 138 at 141-2 (Lindgren J). As such, s 32 DDT Act provided appeal rights. 77Mr Robinson submitted that on the facts of this case, there was nothing particularly controversial about the issues of law likely to arise. There was nothing in the report of Mr Hodder SC to suggest that. Mr Robinson endorsed the primary judge's summation of the effect of the report of Mr Hodder SC, i.e. that although there were distinctions between the law of negligence as it has developed in New South Wales and New Zealand, those distinctions were likely to be reasonably subtle. Consideration 78By commencing proceedings in the DDT, it was necessary for Mr Robinson to complete a lengthy standard form document entitled "Plaintiff's Statement of Particulars". This was a compulsory part of the DDT's claims resolution process. The document was annexed to the affidavit of Mr Blundell, sworn 12 January 2012. In it Mr Robinson was required to set out a summary of the damages which he claimed. Those damages were as follows: "1. General damages (including interest) $257,500.00 2. Future medical expenses $ 75,602.00 3. Out-of-pocket expenses $ 4,220.00 4. Personal care and domestic and assistance $319,717.15 5. Future economic loss $226,827.00 Total $883,866.15" 79It is not known to what extent Item 4 "Personal care and domestic and assistance" would include Griffiths v Kerkemeyer damages, as distinct from paid assistance. It would, however, be reasonable to infer that some part of that figure would involve a Griffiths v Kerkemeyer claim. 80The evidence of Mr Hodder SC as to damages was as follows: "33 In New Zealand, the guiding principle to the award of damages in negligence cases is that the court should award as compensatory damages the sum of money required to put the plaintiff back into the position he would have been in had the wrong not occurred. Unsurprisingly, due to the ACA Scheme, there are few cases on the calculation of damages in personal injury cases and none in the context of asbestos or other gradual process conditions. There are a few pre-ACC cases setting out tariffs for general damages for personal injury. Damages could be available for general damage, future loss of earnings and out-of-pocket expenses. 34 The Accident Compensation Scheme in New Zealand makes it difficult to carry out any meaningful comparisons between damages for personal injury in New Zealand and in Australia. While both jurisdictions attempt to compensate for loss, Australia has necessarily developed much more complex rules as to how this can be done in the precise personal injury context. However, unless these rules diverge materially from those in England (which I have not researched) I would expect the New Zealand cases to treat these as helpful. 81There was an issue between the parties as to how that evidence of Mr Hodder SC was to be interpreted. Studorp submitted that the failure by Mr Hodder SC to make any reference to Griffiths v Kerkemeyer or similar damages, meant that this was a claim unknown to the law of New Zealand. Mr Robinson submitted that taken at its highest, the opinion of Mr Hodder SC went no further than to say that New Zealand courts would look to England for guidance when dealing with a head of damage with which they were not familiar. No more could be inferred from his failure to mention Griffiths v Kerkemeyer damages than that, i.e. that head of damage may or may not be known to the law of New Zealand. 82I have concluded that a Griffiths v Kerkemeyer claim will be made as part of the damages in the proceedings brought by Mr Robinson should he establish liability. If the matter were to proceed in the DDT, that may require it to make a predictive assessment of the development of the law in New Zealand on that issue. Whatever finding was made by the DDT, it would be a finding of fact and it would be immune from appeal. 83I do not anticipate that a complex issue of law, such as the "Fairchild principle" will arise in this case. It was common ground that there was only one potential defendant during the relevant period and consequently the multiple causation issue should not arise. Given the unpredictability of litigation, it is not clear whether other liability issues might arise. What is clear from the report of Mr Hodder SC is that there are real differences between the law of New Zealand and that of New South Wales in relation to claims in negligence and damages for personal injury. 84There is some force in the objection taken by Mr Robinson to Studorp raising the restriction of appeal rights, with respect to the content of foreign law, for the first time in the appeal. That having been said, it is an important consideration which has to be taken into account when considering whether or not the DDT is a clearly inappropriate forum. This is despite the fact that there is no evidence before the Court as to exactly what appeal rights exist in New Zealand. It can, I think, be safely inferred that appeal rights do exist and that they would encompass, to some extent, issues of fact as well as law. 85When considering factors which may tend to indicate that the DDT is a clearly inappropriate forum, a significant consideration continues to be that the law of New Zealand will need to be identified and applied. This in turn means that New Zealand law will need to be proved. That of itself presents some difficulty. 86As these proceedings have made clear, particularly the content of the report from Mr Hodder SC, there is some uncertainty concerning the content of New Zealand law. This is particularly so on the question of damages likely to be awarded in a claim for personal injury based on negligence. A reasonable inference to be drawn from paragraphs 33 and 34 of Mr Hodder SC's report is that Griffiths v Kerkemeyer damages may not be available under New Zealand law and that it may be necessary to predict the development of that law on that issue. This is despite the fact that complex issues involving the development of New Zealand tort law such as the application of the Fairchild principle are unlikely to arise in this case. 87The question of the importance of the absence of appeal rights from decisions as to the content of foreign law has not previously been considered in a Voth context. This is an important consideration distinguishing this case from Puttick. There, the plurality (French CJ, Gummow, Hayne and Kiefel JJ) stated that a foreign lex causae was not alone sufficient to make an Australian Court clearly inappropriate. In Puttick the relevant Tribunal was the Supreme Court of Victoria where all findings, including those as to the content of foreign law, were open to appellate scrutiny. 88The absence of appeal rights from a decision of the DDT as to the content of foreign law is an important factor when considering whether or not the DDT is a clearly inappropriate forum. If it were not for that consideration, the other matters to which her Honour referred (with the exception of the place of registration of the companies) support her Honour's conclusion that the DDT is not a clearly inappropriate forum. 89It is true that any witnesses as to liability on behalf of Studorp are likely to be located in New Zealand and be elderly. No information, however, was placed before the Court as to how many (if any) witnesses come within that category and are likely to be called. While this factor remains theoretically important, its practical importance is unknown. 90There was no issue that all relevant documents are located in New Zealand. However, the Court was not told what documents are being referred to or their quantity. In these days of international commerce, the transmission of documents from New Zealand to Australia should not be unduly difficult. 91In relation to the fourth factor taken into account by her Honour, it may well be that s 25(3) of the DDT Act will be found to be substantive and consequently the parties will not have the advantage of that section. This simply means that liability would have to be established in the DDT in the normal way. That is not really a factor which indicates that the DDT is an inappropriate forum. All that it means is that the DDT will not have the advantage of a special evidentiary provision which is designed to reduce hearing time. In any event, the value of historical evidence as to the availability of knowledge of dangers associated with asbestos in Australia is unlikely to be helpful when considering prevailing circumstances in New Zealand between 1968 and 1974. All that factor four demonstrates is that if proceedings are heard in the DDT, liability will have to be proven in much the same way as it would be in New Zealand. 92In relation to factors against the inappropriateness of the DDT as a forum, the first factor taken into account by her Honour remains applicable. While there may need to be some travel between Tweed Heads and Brisbane to Sydney by witnesses, that is a significantly easier exercise than international travel to New Zealand, with the inevitable need for accommodation and additional expense. 93The relevance of taking evidence by audio-visual means will only be known when the extent of any dispute as to damages is known. There is no evidence on this issue before the Court. Accordingly, the fact that Mr Robinson, his father, his wife and general practitioner reside in New South Wales and that his treating specialists practise in Brisbane remains a factor against the inappropriateness of the DDT as a forum. 94As already indicated, her Honour's third point involved an irrelevant consideration and has no part to play in the application of the Voth test. 95Were it necessary to make a declaration as to whether or not the DDT is a clearly inappropriate forum, I would have found in favour of Studorp and made such a declaration. Because of the decision which I have reached in relation to the service of the DDT Statement of Claim, it is not necessary to make such a declaration, although it is necessary to set aside the declaration to the contrary which her Honour made. I decline to make such a declaration because it was not sought in the Summons and because the submission which I regard as determinative on the issue of whether or not the DDT is a clearly inappropriate forum, was only raised for the first time in the appeal. It is not necessary to make such a declaration in order to resolve the issues raised by the appeal. Notice of Contention 96Although I have not specifically dealt with the matters raised by Mr Robinson in his Notice of Contention, it is implicit in the above analysis that I do not regard those matters as relevant one way or the other to whether the DDT is an inappropriate forum. There is too much doubt about whether s 25(3) is procedural or substantive. The weight of opinion as extracted by O'Meally J in Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 favours a conclusion that it is substantive. While the claims resolution procedures associated with proceedings in the DDT would assist in the speedy resolution of the matter, Studorp's agreement to participate in mediation, even if the matter were to proceed in New Zealand, takes much of the force from that submission. Service of DDT Statement of Claim 97The submissions before this Court on this issue by Mr Robinson were the same as those made to her Honour and which were summarised in her judgment. 98Mr Robinson submitted that the obvious meaning of Schedule 1 when taken with rule 1.5 UCPR is that the DDT is authorised to serve its process outside Australia. This is because there is no mention of Part 11 in the fourth column of Schedule 1. Mr Robinson submitted that such an interpretation is consistent with s 10(4) DDT Act which specifies that the Tribunal "has the same power to make decisions as the Supreme Court would, ...". 99Her Honour's reasons for rejecting that argument are set out at [53] hereof and are, with respect, correct. 100There are other considerations not specifically referred to by her Honour which confirm her Honour's conclusion. 101If the determinative consideration were the absence of any reference in the fourth column of Schedule 1 to Parts of the UCPR, some surprising results would ensue. To take an extreme example which illustrates the point, the District Court and the DDT would have power to appoint receivers. That was clearly not the intention of the legislature. 102Some assistance is also provided by s 33 DDT Act as it was originally enacted in 1989. It then read: "33(1) Until rules are made under subsection (3), the rules of court of the Supreme Court apply, with necessary modifications and to the extent that they are not inconsistent with this Act, to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction in the same way as they apply to proceedings before the Supreme Court and to matters in respect of which that Court has jurisdiction. (2) While rules of court of the Supreme Court apply to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction, those rules shall, subject to this Act, be taken to be rules of the Tribunal for the purposes of this Act. ..." 103Those sections had effect until they were repealed in 1995. Hansard is silent as to why the sections were repealed. While they were current, this Court held that they were effective in allowing service of the DDT processes outside the jurisdiction (Goliath Portland Cement Co Ltd v Bengtell & Anor [1994] 33 NSWLR 414 at 417C (Gleeson CJ) and 429A (Kirby P)). After their repeal, nothing similar to those sections has been included in the DDT Act. Most particularly, there were no such provisions in the DDT Act when the Civil Procedure Act 2002 and the UCPR came into effect. Accordingly, there is no explicit indication that the legislature wished the DDT to have such a power. 104As an alternative, Mr Robinson submitted that no express authorisation was required for the DDT to issue its process outside the jurisdiction. He submitted that on a proper reading of Part 11 UCPR the need for the intervention of the Supreme Court only arose if the defendant did not appear. It is at that point, he submitted, that the Supreme Court would have to determine whether further steps could be taken. He submitted that the only authorisation required for the service of an initiating process was that the subject matter of the Statement of Claim attracts one of the provisions in Schedule 6. 105Mr Robinson submitted that it was pursuant to rule 11.4 UCPR that the Supreme Court retained the authority which it traditionally had to determine whether proceedings should go forward if a defendant did not appear. He submitted that in the case of the DDT, the supervisory role of the Supreme Court was not needed because s 10(4) DDT Act would enable the DDT to make that determination for itself. 106There are a number of difficulties with that submission. If it were correct, any of the courts identified in Schedule 1 which did not have Part 11 UCPR included in the fourth column of the Schedule would be able to issue process outside the jurisdiction without authorisation. Such an interpretation is contrary to the practice in New South Wales, where Part 11 UCPR and its predecessors have not been interpreted in such a way. The District Court, for example, has never regarded itself as being able to issue process in that way, yet it would be able to do so if Mr Robinson's submission were to be accepted. 107There is another more fundamental difficulty. The issuing of an originating process overseas involves at the very least a requirement expressed in peremptory terms by New South Wales for the attendance of a party at a time and place specified in the document. There is always some delicacy involved in dealings of such a kind between one sovereign polity and another. Real questions of international comity can be involved. It is for this reason that the issuing of such originating process has been by superior courts with the matter then being remitted to inferior courts, such as the District Court, once the superior court has satisfied itself as to the appropriateness of the matter continuing. 108There is nothing in Part 11 UCPR to indicate that a contrary approach should be followed. Part 11 looked at as a whole clearly envisages the authorisation and subsequent approval being conducted entirely within the Supreme Court. 109Mr Robinson supported that submission by reference to what he described as the tension between proceedings commenced in the Supreme Court for the purpose of achieving service outside the jurisdiction and s 11 DDT Act which provides that "proceedings for damages in respect of [a] dust related condition ... be brought before the Tribunal and may not be brought or entertained before any other court or tribunal". Mr Robinson submitted that such tension would be avoided if Part 11 UCPR were interpreted in the way he submitted. 110While it is true that there is some tension between the interpretation of Part 11 UCPR by her Honour and s 11 DDT Act, there is nothing in s 11 DDT Act to indicate that such proceedings brought in the Supreme Court would be a nullity or invalid. On the contrary, s 12 DDT Act expressly provides for the transfer of dust related proceedings from the Supreme Court to the DDT. That submission was properly rejected by her Honour. 111For the above reasons, I have concluded that her Honour's interpretation of Part 11 UCPR is correct and that she was correct to set aside the service of Mr Robinson's Statement of Claim filed in the DDT. Costs 112Studorp has been successful in its appeal and Mr Robinson has failed in his cross-appeal and in his Notice of Contention. In relation to the setting aside of the declaration made by the primary judge, Studorp succeeded on a point which was not taken before her Honour and which was raised for the first time on appeal. In those circumstances, Studorp should not have all of its costs. Rather, Mr Robinson should pay half Studorp's costs below and on appeal. Conclusion 113The orders which I propose are as follows: (1) With respect to the application for leave to appeal by Studorp, the application for leave to appeal is granted and the appeal is allowed. (2) The declaration by Adamson J of 1 March 2012 that the DDT is not a clearly inappropriate forum for the determination of Mr Robinson's claim is set aside. (3) With respect to the application for leave to cross-appeal by Mr Robinson, leave to cross-appeal is granted but the cross-appeal is dismissed. (4) Mr Robinson's Notice of Contention is dismissed. (5) Mr Robinson is to pay 50 percent of Studorp's costs of the proceedings in the Supreme Court and in the Court of Appeal. ********** 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. Decision last updated: 29 November 2012