AMACA PTY LTD v Bernard George FROST

Court of Appeal (NSW)|2006-05-03|Before: Spigelman CJ, Santow JA, McColl JA, Curtis J, Coll JA

Background Facts 5 The case proceeded on the basis of a Statement of Agreed Facts as follows: "(1) The plaintiff was born on 17 August 1944 in New Zealand. He is 59 years old. (2) The plaintiff lives in Brisbane, Queensland. He has been a resident of Queensland since 23 December 1996, when he emigrated to Australia from New Zealand. (3) The plaintiff suffers from bilateral pleural plaques, diffuse pleural thickening and asbestosis (the Asbestos Diseases). (4) Between January 1963 and July 1966, the plaintiff was exposed to, and inhaled, asbestos when he worked as a lagger in New Zealand for Van Doorne Bros of Cambridge. During this period of employment in New Zealand, the plaintiff was exposed to, and inhaled, asbestos dust and fibres when he worked with Amaca Pty Ltd (Amaca)'s asbestos-containing insulation products (the Hardie Products). The Asbestos Diseases were caused by the plaintiff's inhalation of asbestos dust and fibres from the Hardie Products. (5) With each inhalation of asbestos dust and fibres from the Hardie Products, the plaintiff suffered injury to his lungs at a microscopic level. This microscopic injury occurred in New Zealand. The asbestos diseases are the culmination of these multiple tiny episodes of injury. The Asbestos Diseases did not become clinically apparent and were not diagnosed until 12 April 2000 when the plaintiff was resident in Queensland. The Asbestos Diseases were diagnosed in Queensland. The Asbestos Diseases were first diagnosed in New Zealand on 11 July 2001. (6) Amaca Pty Ltd was incorporated in New South Wales. (7) Between 1 January 1963 and 1 July 1966 the defendant maintained no premises, employees or other presence in New Zealand. (8) The Hardie Products: (a) Were manufactured by Amaca in New South Wales; (b) Were distributed by Amaca throughout Australia and New Zealand between 1963 and 1966; (c) Were supplied by Amaca from New South Wales directly or indirectly to Van Doorne Bros of Cambridge in New Zealand; (d) Were packaged in New South Wales into cartons, bags and frames for supply and immediate use without further modification; (e) Contained the amphibole asbestos fibre, amosite; (f) Did not carry labels indicating that they contained amphibole asbestos; (g) Did not carry any warning about the risks to health to purchasers or users of the products from being exposed to, and inhaling, amphibole asbestos from the products. (9) Amaca owed the plaintiff a duty of care and breached that duty. Amaca breached its duty of care to the plaintiff by: (a) Failing to warn the plaintiff, his employer or users of the Hardie Products of the risks associated with their use when it knew that they would be cut, drilled, worked and handled thereby releasing asbestos dust and fibres into the atmosphere; (b) Manufacturing the Hardie Products in New South Wales and supplying them from New South Wales when it knew or ought to have known that persons such as the plaintiff were at risk of inhaling asbestos dust and fibres from the products and thereby suffering the Asbestos Diseases; (c) Failing to withdraw the Hardie Products in New South Wales when it knew or ought to have known that persons such as the plaintiff were at risk of inhaling asbestos dust and fibres from the products and thereby suffering the Asbestos Diseases; (d) Manufacturing the Hardie Products in New South Wales and supplying them from New South Wales when it knew or ought to have known that workers in New Zealand and Australia, such as the plaintiff, would cut, drill, work with and handled the products, thereby releasing asbestos dust and fibres into the atmosphere and being at risk of inhaling asbestos dust and fibres from the products and suffering the Asbestos Diseases; (e) Continuing to use asbestos in the Hardie Products when it knew or ought to have known that persons such as the plaintiff were at risk of inhaling asbestos dust and fibres from the products and thereby suffering the Asbestos Diseases; (f) Failing to make inquiries of appropriate authorities, such as the New South Wales Departments of Health and Labour and Industry, as to the risks associated with working with the Hardie Products; (g) Failing properly to investigate at its New South Wales research centre the substitution in the Hardie Products of asbestos with a non-asbestos material; (h) Failing properly to investigate at its New South Wales manufacturing centre the risks associated with working with the Hardie Products; (i) Failing properly to investigate at its New South Wales research centre the risks associated with working with the Hardie Products; (j) Failing to attach warning labels at, and to distribute directions from, its New South Wales manufacturing centre as to the risks associated with working with the Hardie Products; (k) Failing to substitute the asbestos in the Hardie Products at its New South Wales manufacturing centre with a non-asbestos material; (l) Deciding at its New South Wales manufacturing centre not to warn users of the Hardie Products of the risks associated with their use; (m) Failing to warn users of the Hardie Products of the results of atmospheric testing at its New South Wales manufacturing centre in relation to the use of the Hardie Products, which had demonstrated grossly elevated levels of asbestos dust above the then known scientific standards; (n) Failing to devise, organise, administer and implement at their New South Wales headquarters a scheme for warning purchasers and users of the Hardie Products of the risks to health from inhaling asbestos dust and fibres." 6 Paragraph [9] of the Agreed Statement of Facts sets out a wide range of alternative particulars of negligence on which the plaintiff relies. In the event, Judge Curtis determined the case on the basis of only two of those particulars. As this appeal is limited to points of law, this Court should similarly confine itself. Those particulars were (e) and (k). 7 The words "Hardie Products" are defined in par (4) of the Agreed Facts as "Amaca's asbestos-containing insulation products". 8 The basis of the appeal is that his Honour erred in holding that the place of the tort was New South Wales. The Appellant submits that his Honour ought to have held that the place of the tort was New Zealand. 9 The Cross Appeal turns on the significance of the words "in any court in New Zealand" in a section of the New Zealand Act which his Honour held operated as a bar to proceedings in this State. This conclusion is challenged.

The Relevant Legal Principles 10 The most recent authoritative statement by the High Court on the issue of the place of a tort is the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, where their Honours said: "[43] Reference to decisions such as Jackson v Spittall (1870) LR 5 CP 542, Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is 'where in substance did this cause of action arise' ( Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 468; Voth (1990) 171 CLR 538 at 567)? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt ( Voth (1990) 171 CLR 538 at 567)." 11 The Respondent places particular weight on the last sentence of this extract, referring to the place where "the defendant acted". The Respondent submits that, in what it describes as a "negligent manufacture" case, that reasoning requires attention to the place of manufacture as the relevant "act". This characterisation is contested by the Appellant. 12 In Gutnick, the Court referred to its earlier consideration of this issue in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. The relevant paragraph in that case is at 567: "One thing is clear from Jackson v Spittall and from Distillers is that it is some act of the defendant, and not its consequences, that must be the focus of attention. Thus, in Distillers the act of ingestion of the drug Distaval by the plaintiff's mother was ignored, the place of that act being treated like the place of the happening of damage, as one that might have been 'quite fortuitous'." 13 To focus attention on an act of the Defendant, which the High Court has said is a matter that "it will usually be very important to look to" (Gutnick supra at [43]), it is necessary to first identify the relevant "act". This can involve questions of characterisation which, notoriously, are matters on which judgments can and do reasonably differ. In the present case the question could be posed in terms of whether or not the relevant act was the act of manufacture simpliciter or, alternatively, whether it was the act of manufacture and distribution to a point where the Respondent was placed at risk. 14 As the extracts from recent judgments of the High Court make clear, the origin of contemporary doctrine on this matter is to be found in Jackson v Spittall (1870) LR 5 CP 542, where the determination of a place of a tort was said to involve identifying "the act on the part of the defendant which gave the plaintiff his cause of complaint" (emphasis added). This reasoning was affirmed by the Privy Council, on appeal from this Court, in Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 467-468. 15 In Distillers, their Lordships rejected the proposition that the relevant provision required that every part of a cause of action must have occurred within the jurisdiction. They also rejected a test that the last ingredient of the cause of action, i.e. the event which completes it, was the proper interpretation. In this latter respect, their Lordships said at 468 D-E: "… It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise ?" [Emphasis added] 16 Their Lordships went on to accept the proposition, from Jackson v Spittall, that "the act on the part of the defendant which gives the plaintiff his cause of complaint must have occurred within the jurisdiction" (at p466 D and p468 E-F). Their Lordships added: " … The rule does not, however, provide a simple answer for all cases. In Jackson v Spittall (1870) LR 5 CP 542, the wrongdoing was a breach of contract and there was no difficulty in determining where it occurred. The court did not have to consider where the wrongful act should be considered to have taken place in an action for negligence. The defendant does not merely by behaving negligently give the plaintiff any cause for complaint in law. The plaintiff has such a cause for complaint if the defendant's negligence has caused damage to the plaintiff. In the great majority of cases the place where the defendant is negligent is the same as the place where the negligence causes damage to the plaintiff. For instance the defendant while driving his car negligently runs into and injures the plaintiff. But in some cases, particularly those in which the principle of Donoghue v Stevenson [1932] AC 562 is relied upon, there may be a separation in time and place between the negligent behaviour of the defendant and the resulting damage to the plaintiff . George Monro Ltd v American Cyanamid and Chemical Corporation [1944] KB 432; Cordova Land Co Ltd v Victor Brothers Inc [1966] 1 WLR 793; and Lewis Construction Co Pty Ltd v M Tichauer S/A [1966] VR 341 afford illustrations of this situation and of the problem of deciding where in substance the wrongdoing occurred. On the one hand X is the country where the defendant was negligent and on the other hand Y is the country in which the defendant's negligence caused the plaintiff to be hurt. The problem is a difficult one and there is no need to express any opinion on it in the present case." (at 468-469) 17 In substance, in the last two sentences of this passage, the Court left open the very issue that must be determined in this case. 18 In Voth supra, the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ adopted the test in Jackson v Spittall, as explained in Distillers. With respect to the former case their Honours said at 567: "It may sometimes be that the 'cause of complaint' is the failure or refusal of the defendant to do some particular thing - in other words, an omission. It makes no sense to speak of the place of an omission. However, it is possible to speak of the place of the act or acts of the defendant in the context of which the omission assumes significance and to identify that place as the place of the 'cause of complaint'. That is what was done by Goddard LJ in George Monro Ltd v American Cyanamid and Chemical Corp [1944] KB 432 at p 439, where the failure to warn as to the nature of goods was treated as an aspect of their sale. Sale took place outside the jurisdiction and accordingly, in the view of his Lordship, the tort was committed outside the jurisdiction." [Emphasis added] 19 With respect to Distillers their Honours said at 567: "The approach formulated in Distillers does no more than lay down an approach by which there is to be ascertained, in a commonsense way, that which is required by Jackson v Spittall , namely, the place of 'the act on the part of the defendant which gives the plaintiff his cause of complaint'. That approach has particular point if, as was the case in Distillers, it is necessary to ascribe a place to an omission for the purpose of determining where, if at all, a tort was committed." 20 Each case turns on its facts and it will rarely be appropriate to try to reason on the basis of factual analogies. Product liability cases, where there is movement from one jurisdiction to another, pose the issue in an acute form. 21 On occasions this issue has been determined in favour of the place of manufacture, rather than the place of exposure to risk or of causation. (See, e.g. Buttigeig v Universal Terminal and Stevedoring Corp [1972] VR 626; MacGregor v Application des Gaz [1976] Qd R 175; Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd [2000] VSC 224.) 22 In other cases the relevant act has been found to continue to the point of exposure to risk or of causation. In such cases, the exposure may also be expressed in terms of a failure to warn, but this is not a necessary characterisation. (See, e.g. Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92; James Hardie & Co Pty Ltd v Putt (1998) 43 NSWLR 554; James Hardie & Co Pty Ltd v Carley [1999] NSWCA 80; Castree v ER Squibb & Sons Ltd [1980] 1 WLR 1248. The facts of Castree may be difficult to reconcile with other authority, but that merely emphasises the danger of factual analogy. See D'Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369 at 378; Pulido v RS Distributions Pty Ltd [2003] ACTSC 61 at [37]-[38]. I should note that special leave was refused in Putt on the basis that there was no sufficient reason to doubt this Court's conclusion about the location of the tort. See Putt v James Hardie & Co Pty Ltd S76/1998, High Court transcript, 7 August 1998.) 23 The thrust of contemporary doctrine is that the Court must focus on issues of substance. It is necessary not to be distracted from this task by the ingenuity of a pleader. 24 In such cases it is often necessary to look beyond a prolix smorgasbord of particulars to identify what is the true nature of the cause of action: eg "in reality" (Buttigeig supra at 629 line 28) or "in truth" (Putt supra at 573.3). It is often necessary to set aside particulars which are "unreal" or "artificial" (Buttigeig supra at 629 line 37 and line 41 and Application des Gaz supra at 177). In the present case, because of the admissions, the Court must accept the two particulars from the Respondent's pleading upon which Judge Curtis relied.

Determining the Place of the Tort 25 Judge Curtis considered the relevant authorities and said: "[11] … I would hold that the place of the breach of duty, and the tort, in cases of negligent manufacture is the place of manufacture whether the breach is an act or omission because it is the defective manufacturing process which gives the plaintiff his cause of complaint." 26 Subsequently, when distinguishing Putt, his Honour said: "[19] … The case is silent upon the liability of a manufacture of defective articles in New South Wales for supply to consumers of those products in a foreign jurisdiction." 27 Subsequently, when distinguishing James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20, his Honour said: "[27] Again Grigor is not authority for the proposition that where a foreign plaintiff suffers harm in consequence of defective or incorrectly manufactured articles the place of the tort is a place where the article was used or caused the harm." 28 Finally, his Honour referred to Putt, Grigor and Carley and said: "[33] … They do not stand as authority for the proposition that when a defendant in breach of duty manufactures a product containing a toxin, which product cannot be used safely, the place of the tort is that place where the plaintiff is fortuitously exposed to the toxin." 29 His Honour's reasoning on the place of the tort was: "[40] A breach of duty is constituted by that act which is forbidden by the duty, or the omission of that act mandated by the duty. In a case of defective manufacture by wrongful addition of a toxic ingredient, the act forbidden by the duty occurs at the time of, and at the place of manufacture and that is the place of the tort. The place where the breach has its effect and the place where the damage occurs are in such a case 'quite fortuitous'. As the High Court said in Voth 'It is the act of the defendant, and not its consequences that must be the focus of attention'. [41] Mr Graham for Amaca has conceded that I may consider each particular of negligence upon which the plaintiff relies disjunctively and independently of the others. I think he is right to do so and propose to examine the liability of Amaca exclusively in the light of the admissions by Amaca that it breached its duty of care to the plaintiff by '(e) Continuing to use asbestos in the Hardie Products when it knew or ought to have known that persons such as the plaintiff were at risk of inhaling asbestos dust and fibres from the products and thereby suffering the Asbestos Diseases; and (k) failing to substitute the asbestos in the Hardie products at its New South Wales manufacturing centre with non-asbestos material' and that these breaches caused the plaintiff's injuries. [42] Although (k) is framed as an omission, the substance of this allegation is that the defendant tortiously used asbestos fibre in manufacturing its insulation products. [43] These admissions of breach of duty constitute concessions of mixed law and fact; the defendant implicitly conceding that the scope of its duty to the plaintiff extended to removal of all asbestos materials from its insulation products. [44] To the specialist knowledge of this Tribunal, the dangers of contracting mesothelioma from relatively trivial exposure to asbestos fibres were recorded in medical journals before 1963. The defendant's admission that it breached its duty to the plaintiff by continuing between 1963 and 1966 to use asbestos in its insulation products, (independently of breaches constituted by failure to warn), constitutes an admission that it then knew or ought to have known that products containing asbestos were inherently dangerous; that is, as is now generally known, the products constituted such danger to an end user as could not be reasonably obviated by a simple warning and compliance with instructions as to use. The toxic quality was inherent in the defective product and did not depend upon 'the manner of its use'." 30 It is convenient to set out particulars (e) and (k) again: "(e) Continuing to use asbestos in the Hardie Products when it knew or ought to have known that persons such as the plaintiff were at risk of inhaling asbestos dust and fibres from the products and thereby suffering the Asbestos Diseases." "(k) Failing to substitute the asbestos in the Hardie Products at its New South Wales manufacturing centre with a non-asbestos material." 31 Particular (e) does not contain a reference to a location, unlike many other particulars. It alleges a continuation of "use … in the Hardie Products". The word "use" is capable of referring to a number of the matters identified as characteristics of the Hardie Products in par (8) of the Agreed Facts, including (a) manufacture, (b) distribution, (c) supply and (d) packaging. 32 Paragraph (k) does contain a reference to location in the words "at its New South Wales manufacturing centre". 33 However, each of these particulars is introduced by the agreement that each constituted breach of duty to the plaintiff. By Agreed Fact 4, this reference to the plaintiff must be understood as a reference to a person who worked in New Zealand at the time of his exposure. 34 Identifying the relevant act of the defendant must also be informed by paras (8)(a), (b) and (c) of the Agreed Facts which specify, respectively, New South Wales as the place of the manufacture, but New Zealand as the place of distribution and of supply. Although Agreed Fact 7 states that the Appellant had no presence in New Zealand, nevertheless, Agreed Fact 8(b) refers to distribution in New Zealand by the Appellant and Agreed Fact 8(c) refers to supply to the Respondent's employer, directly or indirectly, by the Appellant. 35 In each of the relevant respects, i.e. the particulars denoted (e) and (k), the Appellant has admitted, for purposes of these proceedings, both the existence of a duty and breach of the duty. However, there was no precise admission, in terms, of another essential element of the cause of action, i.e. causation. The only reference in the Agreed Facts to causation is that found in the last sentence of par (4) quoted above which, to repeat, is: "The asbestos diseases were caused by the plaintiff's inhalation of asbestos dust and fibres from the Hardies Products."

The act of inhalation occurred in New Zealand. 36 The admission of particulars (e) and (k) extends only to duty and breach, not to causation. Furthermore, each constitutes an admission of breach of duty to a person, the plaintiff, who was situated in New Zealand. The admitted facts do not constitute an admission of the location of the tort. 37 Mr S Finch SC, who appeared for the Appellant, conceded that the tort was complete at the time of exposure to a risk and that inhalation was not essential. However, he submitted that on the Agreed Facts of the present case, inhalation and exposure occurred at the same place. It was not until that act occurred that the tort was committed. On any view, the exposure to risk occurred in New Zealand and, accordingly, he submitted, New Zealand was the place of the tort. 38 Expressed, as they necessarily must be expressed, at a high level of generality, the authoritative tests for determining the place of a tort are to identity the place: · Which gives the plaintiff cause for complaint (Jackson v Spittall). · Where in substance the cause of action arose (Distillers). · Where the act or omission assumes significance (Voth).

Each of these tests will lead to the same result. The common theme is a concern with substance not form. 39 The learned authors of P E Nygh and M Davies Conflict of Laws in Australia (7th ed) conclude their discussion of the place of the wrong, with the following passage at par 22.6: "The mere fact that damage occurred in a particular jurisdiction is not sufficient, but nevertheless the tendency in cases of 'double locality' torts has been to stress the place at which the activity of the defendant was directed, rather than the place where the activity complained of originated." 40 The authority given for this proposition is Voth at 568 where, after noting in a negligent misstatement case that the place where such a statement was acted upon may "be entirely fortuitous", the joint judgment said: "If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably be expected that it will be brought to the attention of the plaintiff, even if it is brought to the attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers , where, in substance, the act took place." 41 Although the use of the word "directed" was employed in Voth in the context of a statement, it does have an analogy in a case where goods are manufactured in one locality with a view to their distribution in another locality. I agree with the learned authors of Nygh and Davies that, in such a case, particular weight must be given to the place where the act was directed, rather than to the place where it originated. 42 This is not a case, like Distillers, where the nature of the product was such that it could be consumed anywhere in the world and that, accordingly, it could be said that the place where damage occurred was "fortuitous". On agreed fact 8(b), the Hardie Products were to be distributed in Australia and New Zealand and, accordingly, exposure to the risk would occur in one of two nations. 43 The act of manufacture simpliciter is not, in my opinion, the relevant act of the defendant. The product was inherently dangerous, in the sense that it could not be safely used without special precautions. It was not, however, defective in the sense that something went wrong in the manufacturing process. It was always intended that the product would be distributed in New Zealand. The Respondent, to whom the duty was owed, was always located in New Zealand. 44 In my opinion, with respect to the two particulars considered by Judge Curtis, the place of manufacture cannot be identified, in this case, as the place of the tort. The admitted breaches were breaches of duty owed to a person in New Zealand. The element of causation occurred in New Zealand. In my opinion, as a matter of substance, the place where "the cause of action arose" (Distillers) was where the Respondent was exposed to the risk, i.e. New Zealand. Until that happened there was no "cause for complaint" (Jackson v Spittall). It was at that point that the earlier conduct "assumed significance" (Voth). 45 His Honour appears to have accepted the Respondent's characterisation of the case as a "negligent manufacture" case. That, however, is simply a way of expressing a conclusion. As quoted above his Honour referred to such a case in various terms: as a "defective manufacturing process" [11]; as a "manufacturer of defective articles" [19]; as a "defective or incorrectly manufactured article" [27]; as "a case of defective manufacture by wrongful addition of a toxic ingredient" [40]; and as "products containing asbestos were inherently dangerous … the toxic quality was inherent in the defective product and did not depend upon the manner of its use" [44]. 46 There was nothing defective about the manufacturing process. His Honour's references to that effect must be understood in the light of his later terminology of the inclusion of a "toxic" or "inherently dangerous" element in the product. 47 His Honour was in error in characterising the proceedings generally, or as he probably also did, with respect to the two particulars, as "a case of defective manufacture by wrongful addition of a toxic ingredient" ([40]). His Honour does not distinguish between the two particulars. However, he should be understood as making a finding about each in the alternative. 48 Particular (e) cannot be characterised in "negligent manufacture" terminology or in any of the ways his Honour adopted for this characterisation. 49 Particular (k) is expressed in terms of an omission. His Honour's re-characterisation of the particular in terms of an act in [42] went beyond the Agreed Facts. 50 In focusing on the act of manufacture, his Honour failed to have regard to Agreed Facts 8(b) and (c) which established that distribution and supply in New Zealand were acts done "by" the Appellant. His Honour failed to take into account a relevant consideration. 51 His Honour made a number of findings which were not open to him on the evidence. 52 In his judgment, Judge Curtis said that the Appellant admitted that the breaches in (e) and (k) "caused the plaintiff's injuries" ([41]). There was no such admission and in this respect his Honour erred. The Agreed Fact relevant to causation was in the last sentence of Agreed Fact 4 which attributed causation to the act of inhalation in New Zealand. His Honour failed to take this into account. 53 Furthermore, his Honour erred in failing to give any consideration to the fact that each of particulars (e) and (k) admitted breach to a person who was situated in New Zealand. This was a consideration which should have qualified a number of his Honour's findings which referred to the plaintiff (e.g. [11], [41], [44]). His Honour failed to take this relevant consideration into account. 54 Finally, his Honour erred in characterising the exposure to risk in New Zealand as merely "fortuitous". The Agreed Facts accepted that distribution was directed to Australia and New Zealand. The exposure was not "fortuitous" in the sense used in the authorities. 55 This Court's jurisdiction on points of law is the same as that considered by the High Court in Vetter v Lake Macquarie City Council (2001) 202 CLR 439. Although the identification of the place of the tort is not a statutory formulation of the kind considered in Vetter, the issues are cognate. 56 In Vetter itself, and in authorities set out in Vetter at [24]-[27], the test has been variously expressed, albeit in the context of statutory formulations: · "susceptible of one correct answer only" (Vetter at [24]). · "the facts inferred … are necessarily within the description of a word of phrase … or necessarily outside that description" (Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 138). · "the true and only reasonable conclusion" (Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 36). · "no other conclusion was reasonably open" (Hope v Bathurst City Council (1980) 144 CLR 1 at 9). 57 On my above analysis, his Honour's failure to take into account relevant considerations raises a point of law. I would, however, go further. In my opinion, the only conclusion open, with respect to the issue of mixed fact and law involved in determining the place of the tort was, on the Agreed Facts, that that place was New Zealand. 58 The appeal should be allowed. Application of New Zealand Law 59 By cross-appeal, the Respondent asserts, if the Court finds that the place of the tort is New Zealand, that New Zealand law does not prevent the institution of proceedings in New South Wales. Judge Curtis held, if he was wrong about the place of the tort, that New Zealand law did operate to bar recovery in New South Wales. 60 In his reasons for judgment Judge Curtis referred to the reasoning of Sheller JA in Putt supra. His Honour considered s17 of the Accident Rehabilitation and Compensation Insurance Act 1992 (NZ), which was in similar terms to s394. Section 17 included the reference to prohibiting proceedings "commenced in any court in New Zealand". 61 Judge Curtis adopted Sheller JA's conclusion in Putt supra at 579: "In my opinion … s17 must be read as extinguishing any cause of action for damages arising directly or indirectly out of personal injury caused and arising in the manner therein described. While the language of the section in form bars an action to enforce a right to damages, its substantial effect, read in the context of the act as a whole, is to substitute cover under the act for the right to recover common law damages. It is a substantive law … the section extinguished the plaintiff's common law right to recover damages for his injury." 62 Judge Curtis rejected a submission that this reasoning was distinguishable. Of course a decision, such as Putt, on foreign law does not create a precedent. (See Nielson v Overseas Projects Corp of Victoria Ltd [2005] HCA 54; 79 ALJR 1736 at [15], [115], [185], [249] [261] and [267].) However, as an indication of the closeness of our legal systems, evidence is no longer required as to the provisions of a New Zealand statute. (See s40 of the Evidence and Procedure Act (New Zealand) 1994 (Cth).) 63 Before Judge Curtis, and in this Court, the Respondent/Cross-Appellant asserted that the decision in Putt with respect to this matter should no longer be followed, because that case preceded the abolition of what had been traditionally referred to as "the double actionability" rule by the High Court, for intra-Australian torts in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, and for international torts in Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491. In those cases, the Court rejected the two limb test in Phillips v Eyre (1870) LR 6 QB 1. In a sense, from the point of view of this submission, what was abolished was the wrong limb. The kind of "actionability" that was no longer required was actionability in the lex fori. However, the High Court replaced the previous two limb test with a new test to the effect that an Australian court must apply the whole of the substantive law of the lex loci delicti. 64 His Honour's judgment, and the submissions in this Court, focused on s394 of the Accident Insurance Act 1998 (NZ). The evidence about New Zealand law tendered in the proceedings was expressed in terms of the subsequent regime, namely the Injury Prevention Rehabilitation and Compensation Act 2001 (NZ). The former Act is applicable to this case. However, the key provisions are expressed in relevantly identical words. 65 There are two distinct grounds on which, in my opinion, the cross-appeal should be rejected. The first is based on the application of the Australian choice of law rule. The second is the determination of the law of New Zealand in its application to this case.

The Australian Choice of Law Rule 66 The submissions of the Respondent/Cross-Appellant are, in effect, that the Australian choice of law rule no longer requires actionability under the lex loci. That is to say, proceedings can be brought in Australia for a foreign tort, even though such proceedings cannot be brought in the place where the tort occurred. No authority is cited for this proposition. This Court should not create one. Even if it is the case that a foreign statute which prohibits proceedings in the jurisdiction where the tort occurred contemplates, or even permits and encourages, proceedings in, relevantly, Australia, the Australian choice of law rule should not permit so anomalous a result. 67 The authoritative formulation in John Pfeiffer for the identification of what is a matter of substance, rather than procedure, is that which affects the "existence, extent and enforceability" of a liability, right or duty. (See at [83] and [99].) The word "enforceability" in this formulation was adopted to quell the previous debate as to whether a limitation act provision which denied the remedy had the same effect as a limitation act provision which abolished the right. The word "extent" quelled a similar controversy with respect to heads of damage. 68 If one wanted to choose a single word to represent the John Pfeiffer formulation - "existence, extent or enforceability" - the word "actionability" would fit perfectly. Adopting the substantive law of the lex loci is, in effect, a "single actionability" rule. 69 For the purposes only of distinguishing current Australian doctrine from that of other common law jurisdictions, it is appropriate to describe the rule propounded in John Pfeiffer and Zhang as a "single actionability" rule. Here, there is no "actionability" in the lex loci. 70 Although the John Pfeiffer and Zhang test is not, in terms, the second limb of Phillips v Eyre, in my opinion, a requirement of "actionability" in the lex loci is a component of the Australian choice of law rule. 71 The second limb of Phillips v Eyre was explained in Boys v Chaplin [1971] AC 356 at 389, by Lord Wilberforce who, after referring to the terminology of "non-justifiability" from Phillips v Eyre, said: "… We should … allow a greater and more intelligible force to the lex delicti than is included in the concept of unjustifiability as normally understood. The broad principle should surely be that a person should not be permitted to claim in England in respect of a matter for which civil liability does not exist, or is excluded , under the law of the place where the wrong was committed. This non-existence of [sic or?] exclusion may be for a variety of reasons and it would be unwise to attempt a generalisation relevant to the variety of possible wrongs. … I would, therefore, restate the basic rule of English law with regard to foreign torts as requiring actionability as a tort according to English law, subject to the condition that civil liability in respect of the relevant claim exists as between the actual parties under the law of the foreign country where the act was done." [Emphasis added] 72 In Australia, the most frequently cited restatement of the two limbs of Phillips v Eyre was that of Brennan J in Breavington v Godleman (1988) 169 CLR 41 at 110, where his Honour propounded the second limb, in terminology reflecting Lord Wilberforce's judgment in Boys v Chaplin, that a plaintiff may enforce a liability in respect of a wrong occurring outside the territory if: "… by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce." 73 To similar effect, in Breavington v Godleman, Dawson J said at 145-146: "Since one of the objects of the rule in Phillips v Eyre is to avoid the imposition of liability if none existed under the law of a place where the act complained of was done, the civil liability to which that act must give rise under the lex delicti must be civil liability of the kind which is sought to be imposed under the lex fori." 74 Each of these formulations uses the terminology of "civil liability" rather than of "actionability". However, this does not, in my opinion, involve a material distinction. The second limb of Phillips v Eyre was not concerned with a purely theoretical concept of "liability" existing, as it were, in the abstract. It was concerned with actual liability in the lex loci delicti. 75 As Dunn LJ noted in Armagas Ltd v Mundogas SA [1986] 1 AC 717 at 753B, after quoting Lord Wilberforce in Boys v Chaplin: "This statement emphasises that it is the relevant claim as between actual parties which must be looked at, and not whether such a claim could in theory be actionable." 76 In my opinion, this approach to the second limb of Phillips v Eyre, remains appropriate when an Australian Court comes to apply the substantive law of the lex loci. 77 In my opinion, the Australian cases which abandoned the "double actionability" rule did not abandon a requirement of "actionability" in the lex loci. 78 The focus on a real, actual outcome, was apparent in the dissenting judgment of Mason CJ in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, whose reasoning has prevailed. His Honour said at 23: "… we should bear in mind both the purposes of choice of law rules and the undesirability of the practice of forum shopping to secure a result otherwise not available in the forum of the law of the cause." [Emphasis added] 79 To the same effect was the reasoning of Gaudron J, when her Honour adopted Mason CJ's approach in Stevens v Head (1993) 176 CLR 433. She said at 469 that the idea of a procedural law must be confined to the conduct of proceedings, because otherwise: " … different legal consequences may attach to an event depending on where it is litigated. Thus, the same considerations that require that the law of the State which govern an event as it happens should govern its legal consequences also require that the action of procedural laws be so confined". 80 Similarly in Stevens v Head, Mason CJ said at 451.4: " … in conflict situations, choice of law rules should operate to fulfil foreign rights …" 81 Mason CJ's approach was adopted in John Pfeiffer supra at [99], where the Court authoritatively established that matters that affect "the existence, extent or enforceability" of rights are issues of substance. Insofar as the purpose of this classification was to achieve the same result, wherever proceedings are litigated, Australian law has adopted a "no advantage principle" as part of the content of the Australian choice of law rule. 82 The most recent High Court authority establishes a principle that a plaintiff should receive no advantage from suing in the Australian forum which the plaintiff would not obtain in the lex loci delicti. To use the old second limb terminology, "civil liability" in the lex loci must be real, not theoretical. To apply the contemporary Australian test, the substantive law of the lex fori to be applied, includes any prohibition on instituting proceedings. 83 In Neilson supra, Gummow and Hayne JJ said, under the subheading "No Advantage": "[89] … [T]he rules adopted should, as far as possible, avoid parties being able to obtain advantages by litigating in an Australian forum which could not be obtained if the issue were to be litigated in the courts of the jurisdiction whose law is chosen as the governing law. [90] Once Australian choice of law rules direct attention to the law of a foreign jurisdiction, basic considerations of justice require that, as far as possible, the rights and obligations of the parties should be the same whether the dispute is litigated in the courts of that foreign jurisdiction or is determined in the Australian forum. This is not a consideration which seeks uniformity for the sake of the aesthetic value of symmetry. Nor is it a precept founded in notions of international politeness or comity. As has been said, comity is 'either meaningless or misleading'; it is 'a matter for sovereigns, not for judges required to decide a case according to the rights of the parties'. [91] Rather, adopting a rule that seeks to provide identical outcomes is neither more nor less than an inevitable consequence of adopting a choice of law rule to which there is no exception. To apply that choice of law rule in a way that would permit a party to gain some advantage by litigating in the courts of the forum, rather than the courts of the jurisdiction whose law provides the governing law, would constitute a considerable qualification to that choice of law rule. A party could gain an advantage by litigating in the courts of the forum rather than the courts of the foreign jurisdiction only if the forum were to choose to apply only some of the law of that foreign jurisdiction. And to do that would make a significant inroad upon what on its face is stated to be an unqualified choice of the law which is to govern the rights and obligations of the parties: the lex loci delicti." 84 Similarly, Gleeson CJ said: "[13] If it be accepted that one object of a choice of law rule is to avoid difference in outcomes according to selection of forum, then the objective ought to be to have an Australian court decide the present case in the same way as it would be decided in China." 85 Kirby J said: "[176] … [T]he ultimate question which the rule in Zhang presents is: How would the court of the place of the wrong decide the proceedings brought there in respect of that wrong? Where the forum is an Australian court, that is the question which Australian law must answer." 86 Heydon J invoked the same principle when his Honour said: "[271] … It would be absurd for Australian courts to … apply Chinese law to disputes even though Chinese law would not apply had the proceedings been instituted in China and a decision to apply Australian law were made …. That is, it would be absurd … that the body of law to be applied in proceedings commenced in China by the plaintiff against the respondents in relation to the incident causing her injuries should be different from that to be applied in proceedings commenced in Australia by the plaintiff against the same parties in relation to the same incident." 87 The no advantage principle reflects the basis upon which Australian law adopted the lex loci delicti as the choice of law rule. 88 In John Pfeiffer the Court said: "[75] The chief theoretical consideration in favour of applying the law of the place of commission of the tort to decide the substantive rights of the parties (at least in intra-national torts) is that reliance on the legal order in force in the law area in which people act or are exposed to risk of injury gives rise to expectations that should be protected." 89 After Zhang, it is not appropriate to restrict this reasoning to intra-national torts. The Australian choice of law rule should meet the reasonable expectations of the parties in situations where torts are committed abroad. The underlying objective is to ensure that, whatever forum is chosen, the result will be the same. (See P Nygh & M Davis Conflict of Laws in Australia (7th ed) at pars 3.19-3.20). 90 A consideration to which substantial weight was given in John Pfeiffer, was certainty. The joint judgment said: "[83] It is as well then to compare the consequences of the application, in cases of intranational torts, of the lex loci delicti with the consequences of applying the lex fori. If the lex loci delicti is applied, subject to the possible difficulty of locating the tort, liability is fixed and certain; if the lex fori is applied, the existence, extent and enforceability of liability varies according to the number of forums to which the plaintiff may resort and according to the differences between the laws of those forums and, in cases in federal jurisdiction, according to where the court sits. [84] From the perspective of the tortfeasor (or in many cases an insurer of the tortfeasor) application of the lex loci delicti fixes liability by reference to geography and it is, to that extent, easier to promote laws giving a favourable outcome by, for example, limiting liability. If the lex fori is applied, the tortfeasor is exposed to a spectrum of laws imposing liability. [85] From the perspective of the victim (the plaintiff) application of the lex loci delicti can be said to make compensation depend upon the accident of where the tort was committed, whereas, if the lex fori is applied, the plaintiff can resort to whatever forum will give the greatest compensation." 91 Similarly, in Zhang, the Court said: "[66] The selection of the lex loci delicti as the source of substantive law meets one of the objectives of any choice of law rule, the promotion of certainty in the law. Uncertainty as to the choice of the lex causae engenders doubt as to liability and impedes settlement. It is true that to undertake proof of foreign law is a different and more onerous task than, in the case of an intra-Australian tort, to establish the content of federal, State and Territory law. But proof of foreign law is concomitant of reliance upon any choice of law rule which selects a non-Australian lex causae." 92 The significance of certainty and simplicity, was also referred to in Neilson by Gummow and Hayne JJ: "[92] … Certainty and simplicity are desirable characteristics, not only when stating the applicable rule but also when a court comes to apply the rule … Wherever reasonably possibly, certainty and simplicity are to be preferred to complexity and difficulty. [93] Certainty and simplicity are important consequences of adopting a rule that the lex loci delicti governs questions of substance in tort and rejecting exceptions or qualifications, flexible or otherwise, to that rule … [94] To take no account of what a foreign court would do when faced with the facts of this case does not assist the pursuit of certainty and simplicity. It does not assist the pursuit of certainty and simplicity because it requires the law of the forum to divide the rules of the foreign legal system between those rules that are to be applied by the forum and those that are not. This requires the forum to impose on the foreign legal system, which must be assumed is intended to constitute an integrated system of interdependent rules, a division which that system may not make at all. And to make that division, the forum must consider hypothetical circumstances which are not identical to those of the case under consideration. Neither dividing the rules of the foreign legal system nor the manner of effecting that division assists the pursuit of certainty and simplicity."

93 Similar considerations arise in the present circumstances. The long arm jurisdiction of Australian courts, and some other nations, can, as is well known, be exercised in such a broad range of situations that even the slightest element of connection between the cause of action and the forum is sufficient to satisfy a jurisdictional requirement. Where and whether any particular foreign jurisdiction would exercise that jurisdiction, by applying its forum non conveniens rule, will not only vary from one jurisdiction to another, but will turn on the weight that may be given to particular factual circumstances that connect the foreign tort to that foreign jurisdiction. That is not a matter that can be predicted with any degree of certainty. The objective of certainty and simplicity emphasised in the authorities would be substantially undermined.

94 The no advantage principle first appeared in John Pfeiffer: "[90] … [I]t would be incongruous if a state or territory were to allow a remedy for an act or omission in another state or territory which did not constitute an actionable wrong under the laws of that latter state or territory. But application of the lex loci delicti negates that possibility." [Emphasis added] 95 The reference to 'incongruity' is, in my opinion, a reference to what has subsequently been identified as the no advantage principle. The second sentence of this quote suggests that the application of the lex loci delicti will always give effect to this principle. That would only be the case if a 'single actionability rule' is adopted. What is required is an "actionable wrong" in the lex loci. 96 To use the words of the joint judgment in John v Pfeiffer, in my opinion, it is "incongruous" to allow an action to proceed in New South Wales for a New Zealand tort, when no such proceedings can be brought in New Zealand. 97 In Neilson, Gummow and Hayne JJ identified three kinds of cases, in addition to that under consideration, in which similar issues could arise: "[105] The same kinds of question about choice of law may be presented not only where, as the appellant contended to be the case here, the law of the forum and the law of the place choose different connecting factors to determine the applicable law. They may be presented in at least three kinds of case. Thus, they may be presented where the law of the forum and the law of the place use the same connecting factor but apply it differently. They may be presented where the two jurisdictions would characterise the problem differently. They may be presented if the law of the place applies no single connecting factor but seeks to identify the so-called proper law of the tort." 98 The present case appears to me to probably fall into the first category, i.e. "where the law of the forum and the law of the place use the same connecting factor but apply it differently". The New Zealand statute "applies" the connecting factor of a tort occurring in New Zealand, by prohibiting proceedings. 99 Gummow and Hayne JJ said: "[107] In all of these cases, the question would arise: is the law of the forum to take account of what the foreign jurisdiction would do if the matter were to be litigated there? The reasons which favour applying the whole of the law of the place of commission of the tort, where that law adopts a connecting factor other than place of occurrence, are no less applicable to the cases identified. Once the step is taken of giving effect to what the foreign law would do when applying its choice of law rules, there is no reason to shrink from doing that in any of the cases identified." 100 In the present case, the answer to the question "what the foreign jurisdiction would do" is that proceedings for a New Zealand tort could not be instituted in New Zealand and, therefore, they cannot be instituted in New South Wales.

The New Zealand Statute 101 Alternatively, this Court should reject the submission that the New Zealand statute permits the institution of proceedings in New South Wales. Accordingly, applying the substantive law of New Zealand, these proceedings cannot be maintained. 102 Proof of foreign law is, of course, a matter for evidence. There was such evidence before Judge Curtis on the part of both the Appellant and the Respondent. Strictly speaking, his Honour made a finding in favour of the evidence adduced on behalf of the Appellant/Cross-Respondent. His Honour did not express his reasons in that way. Nor have the submissions in this Court been expressed in this way. All Australian lawyers have a strong sense of familiarity with New Zealand law. The reasoning of Judge Curtis, and the submissions in this case, should be understood as providing reasons for why one or the other of the experts should be accepted as a matter of fact. That the judgment, the submissions, or these reasons may appear to be expressed in terms of stating, in an authoritative manner, what the law of New Zealand is, should be regarded simply as a convenient mode of expression, in a context of such close familiarity. 103 It was not suggested in the submissions in this Court that New Zealand law differed as to the determination of the place of the tort. In any event, the expert evidence did not address this issue. This is a matter about which it is appropriate to apply the assumption that, absent evidence to the contrary, foreign law is the same as Australian law. The relevant statute must be construed and applied with reference to proceedings where, according to New Zealand common law, the place of the tort is New Zealand. 104 The issue for this Court is whether, when applying the substantive law of New Zealand in accordance with the decision in Zhang, the reference in the New Zealand Act to a prohibition on proceedings in a New Zealand court should be understood not to qualify the ability to pursue proceedings for a New Zealand tort in any other nation.

105 The statutory provisions relied upon in submissions on this aspect of the case were: 394(1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of - (a) Personal injury covered by this Act; or (b) Personal injury covered by the former Acts. … (4) Subsection (1) does not prevent any person bringing proceedings in any court in New Zealand for damages for personal injury of the kinds described in subsection (1), suffered in New Zealand or elsewhere, if the cause of action is the defendant's liability for damages under the law of New Zealand under any international convention relating to the carriage of passengers. … 395(1) This section applies to proceedings for damages arising directly or indirectly out of personal injury caused by a work-related gradual process, disease, or infection that is - (a) Personal injury covered by this Act; or (b) Personal injury covered by the former Acts. (2) No person may bring proceedings to which this section applies independently of this Act in any court in New Zealand, whether the proceedings are under any rule of law or any enactment. … 396(1) Nothing in this Act, and no rule of law, prevents any person from bringing proceedings in any court in New Zealand for exemplary damages for conduct by the defendant that that has resulted in - (a) Personal injury covered by this Act; or (b) Personal injury covered by the former Acts. … 398(1) Subsection (2) applies when -

(a) Any entitlement is required to be provided under this Act for personal injury to an insured; and

(b) The insured has the right to bring proceedings for damages in New Zealand or elsewhere for the personal injury. (2) When this subsection applies, the insurer may require an insured to do one of the following things, at the insured's option and at the insurer's expense: (a) To take all reasonable steps to enforce the right; or the insurer, within a reasonable period. (3) Subsection (4) applies when - (a) Any entitlement is required to be provided under this Act for personal injury to an insured; and (b) The insured has received a sum of money by way of damages, compensation, or settlement of any claim in New Zealand or elsewhere for the personal injury. (4) When this subsection applies, the insurer may, as the case requires - (a) Deduct, from the cost of the entitlement required to be provided to an insured, a sum equivalent to the net amount received by way of damages, compensation, or settlement; or (b) Recover from the insured, as a debt due, the entitlement provided. …" 106 As I have noted above, there is no appeal from that part of his Honour's judgment in which he rejected the Appellant's case that the Respondent did not have cover under the Act, because his condition was first discovered after he had migrated to Australia. Applying New Zealand authority, his Honour held that the Respondent, who had in fact received payments, was entitled to cover under s39 of the Act which, relevantly, provides: "39(1) An insured has cover for a personal injury if - (a) He or she suffers the personal injury in New Zealand on or after 1 July 1999, and … (c) The personal injury is … described in subsection (2).

(2) Subsection (1)(c) applies to - … (d) Personal injury caused by a work-related gradual process, disease, or infection suffered by the insured; …" 107 It is also pertinent to note circumstances in which a New Zealand resident may be entitled to compensation under the Act with respect to conduct that occurred elsewhere. In a number of specific respects, cover under the Act is provided in the case of personal injury occurring outside New Zealand, if the person was, at that time, ordinarily resident in New Zealand. 108 Section 41 provides: "41(1) An insured has cover for a personal injury if - (a) He or she suffers the personal injury outside New Zealand on or after 1 July 1999; and

(b) The personal injury is any of the kinds of injuries described in section 29(1)(a), (b), or (c); and

(d) The personal injury is one for which the insured would have cover if he or she had suffered it in New Zealand - …" 109 Similarly, s40 provides: "40(1) An insured has cover for a personal injury that is a mental injury if - (a) He or she suffers the mental injury inside or outside New Zealand on or after 1 July 1999; and (b) The mental injury is caused by an act performed by another person; and (c) The act is of a kind described in subsection (2).

(2) Subsection (1)(c) applies to an act that - (a) is performed on, with, or in relation to the insured; and (b) is performed - (i) In New Zealand; or (ii) Outside New Zealand on, with, or in relation to an insured who is ordinarily resident in New Zealand when the act is performed; and (c) Is within the description of an offence listed in Schedule 3." 110 The Act contains definitions of New Zealand (s23) and of "ordinarily resident in New Zealand" (s24). 111 Furthermore, in Pt 1 of the Act, said by s4 "to give a general indication of what the Act is about" and by s5 to be "intended only as a guide to the general scheme and effect of this Act", there appears s7:

"7(1) This Act continues a 'no fault' accident compensation scheme to provide statutory entitlements for all persons - (a) Who suffer personal injury for which they have cover under this Act; or (b) Who are the spouses, children, or other dependants of persons whose cover under this Act is for death or for physical injuries from which they die. (2) This Act also continues the existing restrictions on any such person seeking to obtain compensatory damages for the personal injury through any proceedings in a New Zealand court." 112 Judge Curtis rejected the Respondent's case on this matter in the following passage of his reasons: "[58] … First, there is no inconsistency in extinguishing the right to claim compensatory damages in circumstances where the Act provides insurance cover for the losses occasioned by the tort, while yet preserving that public policy pursuant to which exemplary damages are awarded by the courts. [59] Secondly, s398 does not direct that New Zealand law is to apply in those actions to which it refers. If the substantive law of New Zealand is to apply, the foreign jurisdiction cannot award damages because the insured has no right to bring proceedings for damages in New Zealand or elsewhere and s398 has no application. If the foreign law is to apply the New Zealand statute does not operate to bar damages. S398 obviously contemplates actions brought before foreign courts, or before New Zealand courts applying foreign law, in respect of injuries suffered outside New Zealand by persons ordinarily resident in New Zealand. Such persons are entitled to cover pursuant to s41 of the Act. [60] I hold that because the plaintiff has cover, s394 of the Act bars his right to recover damages in a New South Wales court applying the law of New Zealand." 113 In this Court the Respondent/Cross-Appellant's submissions relied on s396 which, following New Zealand cases on earlier acts, affirmed the capacity to take proceedings for exemplary damages. 114 The expert evidence about New Zealand law covered a range of issues that arose at trial, including whether the Respondent had a valid claim to statutory compensation under the New Zealand Act, whether he was prevented from commencing an action in New Zealand and other questions relating to damages and limitations. The issue on the cross-appeal concerns the expert evidence about whether the Respondent is prevented from bringing an action in Australia. In this respect the evidence focused on the inclusion of the words "in any court in New Zealand" in, relevantly, s394(1). It is not clear to me why s395(2) is not the relevant provision, but nothing turns on this. 115 The evidence adduced on behalf of the Respondent/Cross-Appellant relied on the reference to "or elsewhere" in s398 and expressed the opinion that there was an intentional distinction between that terminology and the reference to "in any court in New Zealand" in s394. 116 The Respondent/Cross-Appellant also relied on the reference to the proceedings being brought other than in New Zealand in the formulation "proceedings for damages in New Zealand or elsewhere" in s398(1)(b) and s398(3)(b), and see also s394(4). 117 Furthermore, the evidence was to the effect that, on its proper construction, the New Zealand statute does not proscribe commencement of proceedings outside of New Zealand. The opinion expressed was that Parliament intended only to proscribe the commencement of proceedings in New Zealand. 118 The evidence on behalf of the Appellant/Cross-Respondent was that the words "in any court in New Zealand" reflected an assumption by the Parliament that it was not competent to pass legislation that could be enforced in another state without the consent of that state. 119 The expert said: "New Zealand's Parliament could not legislate in a way which governed court proceedings in another jurisdiction without the consent of that jurisdiction." (Blue AB 488 H) 120 The opinion stated that proceedings outside of New Zealand were not the concern of the Parliament when it enacted the legislation. The evidence said: "It was not in my view Parliament's intent to govern overseas rights. Parliament merely intended to govern the position within its jurisdiction, New Zealand. There is no evidence that it intended the statutory code would impact on common law rights overseas." (Blue Appeal Book 553 D-F) 121 Furthermore, this opinion stated that it would not be consistent for a person entitled to recover under the Act to be able to bring a common law claim for damages in a court outside of New Zealand, if that claim for damages was governed by the law of New Zealand, because the no fault accident regime implemented by the Act involved a "social contract" that replaced common law rights with a compensation scheme. The Act did not, however, intend to restrict the ability to proceed in an action in a foreign court with respect to a tort that was not governed by the common law of New Zealand. 122 It is of significance that the evidence of the Respondent/Cross-Appellant did not address itself to the situation where the place of the tort is New Zealand. The reference in the evidence was to "common law rights overseas". 123 However, the evidence adduced on the part of the Cross-Respondent/Appellant was directed to a case in which the common law of New Zealand applied. That evidence was: " … if a person has cover under the … Act … they are prevented from bringing proceedings based upon the common law of New Zealand for damages that arise directly or indirectly out of the personal injury covered by the Act." (Blue AB 483 G-I)

The evidence went on to distinguish circumstances in which there was a right to sue for damages "not governed by New Zealand's common law" (Blue AB 483 L). 124 In the event, the issue that arises for determination in this case is addressed, in terms, by the Appellant/Cross-Respondent's expert, but not by the Respondent/Cross-Appellant's expert. In my opinion, the former evidence should be accepted. 125 Taking into account the scope and purpose of the legislative scheme it is, in my opinion, clear that Parliament intended to establish a code that covered the field of conduct in which the place of tort was New Zealand and was governed by the common law of New Zealand. The exception was the situation when exemplary damages would be awarded. 126 Section 396, which maintains the right to sue for exemplary damages, was said to indicate that the New Zealand statute had not extinguished the common law right to sue in tort. The distinction between denying the remedy and extinguishing the right was a relevant distinction in Australian law before John Pfeiffer. It has no significance now. It does not assist in determining what the New Zealand Parliament meant by using the words "in any court in New Zealand" in the sections in which it appears. 127 In my opinion, the reference to "or elsewhere", in the relevant sections, has no significant weight when determining the application of the statute to a tort that occurred in New Zealand. The Act clearly contemplates payment to a person ordinarily resident in New Zealand under the Act with respect to torts committed outside New Zealand. (See s40 and s41 set out above.) 128 As was well known, there are many nations which make exorbitant claims to jurisdiction and there are a range of different regimes for determining forum non conveniens questions. The Parliament of New Zealand was not intending to permit persons, who may have some technical right to take action in a foreign jurisdiction, to do so in the case of conduct when the place of the tort was New Zealand. For example, it was not intending to permit a French citizen resident in New Zealand to take proceedings with respect to conduct in New Zealand, in a French court, even though that would be permissible under French law. Similarly, it was not intending to permit a person ordinarily resident in New Zealand, with respect to conduct that occurred in New Zealand, to take proceedings in Australia, merely because one of many links to the jurisdiction, such as mere temporary presence on a holiday, was established, subject only to the application of the relevant forum non conveniens test. As the Appellant/Cross-Respondent's expert put it, the no fault regime reflects a "social contract" with respect to conduct in New Zealand. 129 Furthermore, at the time that these provisions were first placed in the legislative scheme the double actionability rule was applicable in most of the common law world, including Australia. The New Zealand Parliament would have had no doubt that in the common law world a statutory provision preventing proceedings in a court in New Zealand would be effective to prevent proceedings in any such foreign jurisdiction of which, by reason of the close interrelationship between the countries, Australia would be the most prominent. The fact that the High Court has subsequently determined that the common law of Australia does not require double actionability should not detract from the context in which the legislation under consideration was originally enacted. 130 When an Australian court comes to apply the substantive law of New Zealand in accordance with Zhang, the words in the statute which refer to "proceedings in any court in New Zealand" should be understood as terminology adopted on the basis that the New Zealand Parliament was not able to issue a directive to foreign courts that would be enforceable in the foreign jurisdiction. The substantive law of New Zealand to be applied in Australia, under our choice of law rule, should be understood to prohibit the institution of proceedings, without giving separate effect to the reference in the sections to New Zealand courts.

Conclusion 131 It was not suggested that, if the Court allowed the appeal and rejected the cross-appeal, there was anything to remit to the Tribunal. 132 I propose the following orders:

Set aside the orders of Curtis J of 17 August 2005;

Proceedings 407/2002 in the Dust Diseases Tribunal of New South Wales are dismissed with costs.

133 SANTOW JA: I agree with Spigelman CJ. 134 McCOLL JA: I agree with Spigelman CJ.

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.

CITATION: AMACA PTY LTD v Bernard George FROST [2006] NSWCA 173

Armagas Ltd v Mundogas SA [1986] 1 AC 717 Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 Boys v Chaplin [1971] AC 356 Breavington v Godleman (1988) 169 CLR 41 Buttigeig v Universal Terminal and Stevedoring Corp [1972] VR 626 Castree v ER Squibb & Sons Ltd [1980] 1 WLR 1248 D'Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd [2000] VSC 224 Hope v Bathurst City Council (1980) 144 CLR 1 Jackson v Spittall (1870) LR 5 CP 542 CASES CITED: Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92 James Hardie & Co Pty Ltd v Carley [1999] NSWCA 80 James Hardie & Co Pty Ltd v Putt (1998) 43 NSWLR 554 James Hardies Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 MacGregor v Application des Gaz [1976] Qd R 175 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Nielson v Overseas Projects Corp of Victoria Ltd [2005] HCA 54; 79 ALJR 1736 Phillips v Eyre (1870) LR 6 QB 1 Pulido v RS Distributions Pty Ltd [2003] ACTSC 61 Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 Stevens v Head (1993) 176 CLR 433 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Vetter v Lake Macquarie City Council (2001) 202 CLR 439

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWDDT 36

(g) Characterising the exposure to risk in New Zealand as "fortuitous" when the Agreed Facts accepted that distribution was directed to Australia and New Zealand. [54], [133], [134] Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126; Edwards (Inspector of Taxes) v Bairstow [1956] AC 14; Hope v Bathurst City Council (1980) 144 CLR 1 followed.

2 With respect to the two particulars considered by the trial judge, the place of manufacture cannot be identified as the place of the tort. It was always intended that the product would be distributed in New Zealand. The Respondent, to whom the duty was owed, was in New Zealand. The element of causation occurred in New Zealand. As a matter of substance, the place where the cause of action arose was New Zealand. No other conclusion was open. [43]-[44], [57], [133], [134] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458; Jackson v Spittall (1870) LR 5 CP 542 followed. Buttigeig v Universal Terminal and Stevedoring Corp [1972] VR 626; James Hardie & Co Pty Ltd v Putt (1998) 43 NSWLR 554; MacGregor v Application des Gaz [1976] Qd R 175; Granite Springs Pty Ltd v Intercooler Water Dispensers Pty Ltd [2000] VSC 224; Jacobs v Australian Abrasives Pty Ltd [1971] Tas SR 92; James Hardie & Co Pty Ltd v Carley [1999] NSWCA 80; Castree v ER Squibb & Sons Ltd [1980] 1 WLR 1248; D'Ath v TNT Australia Pty Ltd [1992] 1 Qd R 369; Pulido v RS Distributions Pty Ltd [2003] ACTSC 61; James Hardies Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 referred to

4 The Respondent is prevented from bringing proceedings in New Zealand. The Australian choice of law rules prevent the proceedings from being commenced in New South Walers. [100], [133], [134] Nielson v Overseas Projects Corp of Victoria Ltd [2005] HCA 54; 79 ALJR 1736; Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Breavington v Godleman (1988) 169 CLR 41; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; Stevens v Head (1993) 176 CLR 433; Phillips v Eyre (1870) LR 6 QB 1; Boys v Chaplin [1971] AC 356; Armagas Ltd v Mundogas SA [1986] 1 AC 717 considered.

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Judgment (24 paragraphs)

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Cases Cited (20)