Putt v James Hardie and Coy Pty Limited and ANOR S76/1998 [1998] HCATrans 280 (7 August 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S76 of 1998

B e t w e e n -

KARTAYIANI PUTT (also known as ROSHNI PUTT) as Administrator ad litem of the ESTATE OF DESMOND PUTT (DECEASED)

Applicant

and

JAMES HARDIE & COY PTY LIMITED

First Respondent

JAMES HARDIE INDUSTRIES LIMITED

Second Respondent

Application for special leave to appeal

GLEESON CJ

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 1998, AT 10.39 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR A.J. BARTLEY and MR F. TUSCANO, for the applicant. (instructed by McLaughlin & Riordan)

MR B.W. WALKER, SC: If it please your Honours, I appear with my learned friend, MR D.E. GRAHAM, for the respondents. (instructed by Allen Allen & Hemsley)

GLEESON CJ: I understand there is a motion about parties.

MR JACKSON: Yes, your Honour.

GLEESON CJ: Is that opposed, Mr Walker?

MR WALKER: No, your Honour.

GLEESON CJ: Yes, the application to amend is granted.

MR JACKSON: Your Honours, this is a case where the approach taken by the Court of Appeal is likely to affect a significant number of cases and involves also, at least, one important legal question. May I deal with those two aspects; the first briefly.

The approach taken by the court below has already affected this case, Grigor's Case, the case which the Court just dealt with. Your Honours will also see that there are similar cases that are referred to as Carley at page 114 of the application record and Bruce Case, another case from New Zealand. Now, your Honours, it would affect, although the exact numbers do not appear, all the mesothelioma cases, to adopt one area, now appearing from New Zealand where, as here, the contention is that the conduct of persons in Australia found to have exercised control over the activities of the New Zealand company was a cause of the condition.

Could I turn to the second aspect, the legal issue involved, and it is this, your Honours: what is the approach to liability of companies in a group of companies where one exercises actual control over the other. I said "liability" generically, your Honours. I intend to refer to two aspects by that. One is the question of the nature of the duty care. Is there a duty of care? That involves the element of, to put it shortly, proximity. The second is a related thing which will happen where the events occur in two jurisdictions, whether they be in Australia or - - -

GAUDRON J: Does this not really, in a sense, though, depend on what you assert is the content of that duty? In this case, do we not really have to start with what you say was the content in the breach before we can go back, really, and analyse what you are now putting?

MR JACKSON: Of course, your Honour. So far as the content is concerned, the position was - your Honour, may I just start one stage back from that?

GAUDRON J: Yes.

MR JACKSON: Could I say one or two things about the facts before getting to that. What I just wanted to say was this: the deceased was an employee of the New Zealand subsidiary; never an employee of the respondent companies. It was not in issue that the conditions of his workplace in New Zealand were such that the employer negligently exposed him to the asbestos. Your Honours will see that at page 16, about line 17. So, that was the starting position.

It was not, however, the employer who was sued. Instead, the contention was that at relevant times - that is 1947 to 1951 - whatever might be the formal legal position about incorporation and separate companies, the New Zealand company was under the actual direction of the respondents and was treated, in relevant respects, in exactly the same way as if the New Zealand plant and the New Zealand operations were those of a plant conducted in Australia by the first respondent, that is, in effect, as a branch factory. The primary judge had so found. Your Honours will see that at page 53 and page 54.

Your Honours, there was clear documentary evidence from which he was entitled so to find. Your Honours will see that in two things: the staff organisation chart at page 38 which refers to the works managers of the various works reporting to the works director - that is discussed at page 37; I will not take your Honours to the detail of it - and also to the document which showed the job specification for a works manager including the Auckland works manager and what his position was. Those things were not contradicted.

So, your Honours, the position then was as, really, the starting point, that the New Zealand company was treated as if it was a branch and was so controlled. It was conceded that the New Zealand company was itself negligent and the two respondents had accepted that the - - -

GAUDRON J: But the New Zealand company was negligent in New Zealand?

MR JACKSON: Yes, your Honour, yes.

GAUDRON J: There is no doubt about that?

MR JACKSON: Yes, no doubt about that. Your Honour, but the New Zealand company is not a party, of course. It is not sued for that.

GAUDRON J: No, no, I want to follow from there. Now, you do not put it on the basis of vicarious liability?

MR JACKSON: No, not at all, your Honour.

GAUDRON J: Not at all. You put it on straight proximity?

MR JACKSON: Yes. Your Honour, it is put on the basis that - there is one further background fact and it is this, that the two companies had not put in issue the question whether the injury to the plaintiff fell within the range of harm which was foreseeable harm. Your Honours will see that if I can just go to two places. That is at page 16 line 15. It says:

Immediately before evidence was taken, each defendant conceded that foreseeability was not an issue.

That is referred to also by the Court of Appeal in the same terms at page 90 lines 19 to 20. I mention that, your Honours, and give your Honours the references because the respondents' submissions for this Court at page 166 paragraph 2.7 do seek with respect to finesse, if I could use that expression, as was sought to be done unsuccessfully in the Court of Appeal, the position in relation to the admission of foreseeability.

Your Honours, we would simply seek to say, if one looks at the top of page 167, what else could the statement that is there made be intended to convey in the context of a case against these parties other than that neither would challenge the assertion that the injuries were foreseeable? In the additional materials, tabs 13 and 12, your Honours will see where the position is taken again.

Your Honours, that meant, if I could just say one further thing, that the case was one where the conclusion would ordinarily be drawn that a duty of care existed on the part of the respondents, the injuries being personal injury, foreseeability not being in issue.

GAUDRON J: But what was that duty of care?

MR JACKSON: Your Honour, the duty of care was to take, if I could put it broadly first, in relation to persons employed at the factory in New Zealand the care which would be taken in relation to persons employed at any of the other factories directly by the respondent.

GAUDRON J: That does not take us very far, the care that would be taken.

MR JACKSON: Your Honour, I mean to say by that that particularly the first respondent was the company which, in effect, conducted all the operations. It had an obligation to provide, to take one example, a safe system of work.

GAUDRON J: To provide a safe system of work or to require its subsidiary to provide a safe system of work?

MR JACKSON: Your Honour, one could, if one looked at it purely from the point of view of saying there are two separate companies, adopt the latter approach.

GAUDRON J: If you do not put it on a vicarious basis or on an agency basis, you have got to give some effect to the separate company, do you not?

MR JACKSON: In some circumstances one would, your Honour, but the way in which your Honour has put it to me does not cover all the situations or, indeed, this situation.

GAUDRON J: How is it pleaded? What is the precise pleading that is put in relation to this?

MR JACKSON: Your Honour, you will see at foot at the top of page 3 of the application book, first of all in paragraph 11, it was said they:

had the control and management of the.....factory at Penrose -

and then your Honours will see that there are a number of particulars of negligence and they include, for example - - -

GAUDRON J: Well, the failure to warn. That is what the Court of Appeal concentrated on.

MR JACKSON: Yes, your Honour.

GAUDRON J: Yes. Do you rely on b, which seems to be a strict liability proposition?

MR JACKSON: Well, your Honour, the answer, I think, is yes. My hesitation is that, I think, one of these was in the end not relied on at the trial. I am sorry.

GAUDRON J: But that is a strict liability proposition, is it not, if you read it?

MR JACKSON: Your Honour, I should say, I think, the manufacturing part was not relied upon. It was the supply.

GAUDRON J: I should tell you, Mr Jackson, it is quite critical for me to know the precise head of negligence upon which you rely for me to come to a view about this matter and I say that to you in fairness.

MR JACKSON: Your Honour, could I say that the ones on which we would seek to rely effectively would be a, e and f.

GAUDRON J: Again, I understand e, but I think, as I understand the law in this regard, you have to assert what steps really should have been taken. Warning I can understand but what precisely is asserted under e and f by "take any steps" - I think if you are going to plead matters like that you are inviting a strike out application, are you not, unless there are particulars further?

MR JACKSON: Could I say in relation to - the first thing is, your Honour will appreciate that there was, of course, no such application.

GAUDRON J: No, but you are seeking special leave to appeal.

MR JACKSON: No, your Honour, I am conscious of that. What I am seeking to say if I may, with respect, in relation to the second part of it is this, that your Honour will appreciate that it was not necessary to call evidence about either actual negligence at the plant because of the admission that was made nor evidence about foreseeability so those issues were ones which were dealt with.

GAUDRON J: Well, maybe, but they are critical to this consideration that now arises.

MR JACKSON: Yes, but, your Honour, foreseeability one has to take in the context of the pleadings and that it would be, in a sense, in the sense that it is foreseeable that if the steps were not taken the result may follow, but one is coming to what might have been done. Your Honour will appreciate that the position was that the company and all - the New Zealand company and the meetings of its directors were all held here at Sydney and what we would seek to say is that the steps that might have been taken, the warnings that might have been given, the directions that might have been given in relation to the way in which the danger could have been avoided that would not have given rise to the condition, or may not have given rise to the condition - - -

GAUDRON J: Can you say that the duty was any more precise than to require its subsidiary to provide a safe working place?

MR JACKSON: We would put it higher than require, your Honour. Its own duty was to provide a safe working place where the work was carried on by its subsidiary.

GAUDRON J: Or ensure? They did not have a workplace, this company there, did they? Unless we are to penetrate the corporate veil completely, they did not have a workplace there.

MR JACKSON: I am not quite certain what your Honour means by that. What I am seeking to convey, if I may put it this way, there was a New Zealand company which was a subsidiary which operated the Penrose plant. What we seek to say and what was found by the primary judge was that even though it was a separate company, no doubt for the provisions of New Zealand law and so on, in fact the situation was that it was treated by the Australian companies as no different from and treated as if it were a factory conducted by themselves in Australia and that whatever obligations they might have in relation to the conduct of such a factory here - - -

GAUDRON J: Let us assume it was themselves to provide a safe workplace.

MR JACKSON: Yes.

GAUDRON J: They had to provide that in New Zealand, did they not?

MR JACKSON: Yes, they had to and they had to provide it in New Zealand but - - -

GAUDRON J: And assume there was a duty to warn, they had to warn in New Zealand.

MR JACKSON: They had to warn, your Honour. The New Zealand company was one which, in all its meetings, met here so that, your Honour, one is not met at, in effect, of some of the time Asbestos House in here and a meeting was conducted and it was not the company that had - there was New Zealand directors coming here. One was but the rest were just Australians telling each other what to do.

GAUDRON J: It is not disputed that there was a duty of care in this case, is there? That is not in issue.

MR JACKSON: Yes, it is, your Honour.

GAUDRON J: Is it?

MR JACKSON: A duty of care by the respondents, yes, it is and, your Honour, that is the point at which we would seek to say if one takes the matters to which I have referred, one has the ordinary situation where foreseeability not being in issue on the part of the defendants, it being personal injury, the nature of the case being one where the circumstances giving rise to the personal injury are relevantly very similar to those - - -

GAUDRON J: But if the duty was here, the breach was there. Is that right?

MR JACKSON: No, your Honour. The damage was suffered there, of course, but so far as the duty and the breach were concerned, the duty and the breach both - - -

GAUDRON J: So far as it was to provide a safe workplace the breach must have been in New Zealand.

MR JACKSON: In the non-provision, yes, your Honour. However, the critical aspect of that would be, so far as the respondents are concerned, what action they took in Australia to ensure that those carrying out the works in New Zealand did it. Your Honours, that is really the point that is sought to be made in the case to which my learned friend referred in the earlier case, Lubbe v Cape Plc, the decision of the Court of Appeal in England on 30 July. May I take your Honours to a couple of aspects - - -

GAUDRON J: That case seems to proceed on the basis that the question of the existence of a duty is to be determined according to English law but it does not seem to go further than that.

MR JACKSON: Your Honour, it does not finally determine any issue, really - - -

GAUDRON J: No.

MR JACKSON: - - - except for the fact that the action could proceed in England. However, and this is what I would seek to make about it - - -

GAUDRON J: And, of course, they do not insist on the double actionability rule, do they now?

MR JACKSON: Your Honour, they do but do not.

GAUDRON J: What did they say in this case?

MR JACKSON: Your Honour will see that dealt with in passing where they really recite just what is the current English position on that point and that is at page 12 of the copy which I have where they refer to the so-called rule in Phillips v Eyre about point 3 on the page which they summarise.

GLEESON CJ: They seem to be coming face to face with the proposition that if you have a relaxed forum non conveniens test and send people off to litigate where it is more appropriate you are going to have Namibian courts deciding the content of the duty of care of English companies.

MR JACKSON: Your Honour, these matters, undoubtedly, lie behind some of the views and, of course, in all the cases concerning forum non conveniens and matters of that kind, stays and so on, there is an underlying question of policy and comity in relation to them. Could I just say, your Honours, for relevant purposes the circumstances of this case were exactly the same as the present, the operations carried on by a company in one country, parent company in the other and the directions in England, as it were.

Your Honours will see at the bottom of page 12 the issue in the reformulated form that was referred to earlier and your Honours will see the nature of the question there. If one goes from that, your Honours, to page 13 about line 8 or 9 on the page you will see the reference to:

Miss Dohmann emphasises that the negligence alleged.....consists of instructions and advice which they gave, or failed to give, to their South African employees -

Then a little further down the page:

These matters were determined at Board or a senior level in England as part of company policy and they were implemented by directors and senior personnel in England and elsewhere, including South Africa during regular visits there.

Now, your Honours, from there - I will not trouble your Honours with the detail of it, but if one goes in the end to the overview at page 19 it commences there and the top of the next page is the conclusion and that was that:

The judge failed to give any weight to the fact that the negligence.....is distinct from any allegations which might be made -

et cetera. Your Honours, what that tends to indicate, in our submission, is that there is open in the United Kingdom a view which is similar to that for which we contend in this case. That is, of course, at a level below this Court.

GLEESON CJ: Mr Jackson, the key finding adverse to you in the Court of Appeal was, was it not, that the place of the tort was New Zealand?

MR JACKSON: Yes, your Honour, that, however, really comes about from the earlier aspect of it, in a sense, of saying that what you have is a case where you cannot treat the companies as one company having control over the other. If one takes that view, your Honour, underlying that the result really is that one then says the negligence was, in effect, in New Zealand and the damage was in New Zealand.

GLEESON CJ: But I thought the Court of Appeal said the relevant act of negligence was failure to warn. There is only one place where they could have warned the deceased and that was where he was, namely in New Zealand.

MR JACKSON: Yes, but, your Honour, that is to treat the situation as a warning to be given to him. Our case is one that depends on directions to those controlling the company.

GAUDRON J: You say that in some respects but when I took you to the pleadings and you referred me to a, e and f, one was your failure to warn; e and f were not take any steps and the best I could get out of you in that regard was that they should have provided a safe place of work or should have ensured a safe place of work and in both cases you would think that they would have to ensure that or provide that in New Zealand.

MR JACKSON: Your Honour, what I am seeking to say is that it is the directions to the people conducting the New Zealand operations and that to look at the position of the plaintiff - - -

GAUDRON J: So how do you particularise it, failing to direct the New Zealand subsidiary to provide a safe place of work? You did not accept that when I asked you that.

MR JACKSON: No, your Honour, what I said in relation to it, I think - I am sorry, your Honour, I am conscious the time has expired. May I perhaps answer your Honour's question?

GAUDRON J: Yes, sorry.

MR JACKSON: What I was seeking to say in response to it was that because of the findings that were made in relation to the way in which the operations of New Zealand, if I can put it generically for the moment, were conducted, one had a situation where it was for the company itself to take the steps to provide the safe system of work. The way in which it might do so would be by giving directions to those running the New Zealand activity who, as that document I indicated to your Honours earlier showed, were the people who were those running the activity in New Zealand. So, in that sense, your Honour, one says the New Zealand company, but that is to describe people in a sense rather than a legal personality.

Your Honours, may I say one other thing and that is that there would be another issue arising, your Honours, which time has not permitted me to deal with and that concerns the question of the effect of the New Zealand Act.

GLEESON CJ: Thank you. Yes, Mr Walker.

MR WALKER: Your Honours, as to the last of those matters, namely the effect of the New Zealand Act, as we have put in our written outline, that is not a matter which in the ordinary course would attract special leave from this Court, it being a matter of fact and the fact in this case having been the subject of evidence which was relevantly completely uncontradicted and, indeed, unchallenged.

So far as concerns the nature of the case which was put against our two clients, that is the Australian companies, may I take your Honours to 125 in the application book because there Justice Sheller records between lines 5 and 10 the very distinction that your Honour Justice Gaudron was seeking to explore with my learned friend. He says:

So far as the plaintiff relied on the relationship between JHNZ -

that is the New Zealand employer -

and the defendants -

that is the present parties for whom I appear -

the case particularised was one not of failing to warn JHNZ but of failing to ensure, by means of the control capacity they were said to have, that the workplace was safe. In one case the place of the tort was the place where the warning should have operated to protect the plaintiff, in the other, the place where the system of work should have been safe. Both places were in New Zealand -

Now, your Honours, that was at the heart of what might be called the first issue in the case, an issue which served a threshold purpose by reason of the double actionability rule which then turned upon the question of fact, namely the meaning of the New Zealand legislation to which my learned friend made his last reference.

GAUDRON J: The real reasoning in this case is that the plaintiff did not survive the double actionability rule.

MR WALKER: Yes.

GAUDRON J: And therefore, did not have a cause of action in New South Wales rather than forum.

MR WALKER: That is right. There is no discretion.

GAUDRON J: Yes.

MR WALKER: We had raised the discretionary point but had agreed or had volunteered to run it at the trial which was itself self-defeating because the trial was then had.

GLEESON CJ: Yes.

MR WALKER: Your Honours have already been taken to the pleadings as they appear, for example, in relation to the first of the defendants at pages 3 and 4 of the application. I can tell your Honours that particular b was the one to which my learned friend was referring as having been either modified or abandoned. That reference is found at 24. Paragraph a was, of course, at the heart of the case and its opening words say all that is necessary for present purposes, "Failing to warn the Plaintiff". That was the allegation against that Australian defendant.

Paragraph c was not one that my learned friend has just referred to but is an important one because it refers, of course, to things which might have been done, as it were, in New South Wales, but that is dealt with by the finding contrary to the plaintiff's case at trial recorded at 62, namely that this was not manufacture of a good dangerous in itself.

Paragraphs e and f, therefore, were left and it is for those reasons that I have started by taking your Honours to 125 because 125 records the flesh which was put on the bare bones of e and f by dint of the trial. The evidence that my learned friend has referred to, the findings my learned friend has referred to about the control capacity led to the following kind of case being put, both at trial and in the Court of Appeal, namely by dint, for example, of a 95 per cent shareholding in the holding company or by dint of what might be called operational liaison trans Tasman in the other New South Wales company, there was a capacity to control so that the argument said you could control, therefore you should have controlled but you did not control.

The one thing that was entirely missing was any evidence of actual shop floor or factory policy direction in relation to the warnings to be given to the workers or to the safe system of work in relation to inhalation of fibres to be provided for the workers.

GLEESON CJ: Is it any different from this situation? Suppose that a resident of New South Wales owns a grazing property in Queensland and employs a manager to run the property in Queensland and the manager employs a stockman. The New South Wales resident, the owner, has full power of control and direction of the conduct of the manager. The manager fails to warn the stockman of some risk on the property and the manager fails to provide a safe place of work for the stockman or fails to do what is necessary for the employer to provide a safe place of work for the stockman.

MR WALKER: Yes.

GLEESON CJ: Where is the tort committed? In New South Wales or Queensland?

MR WALKER: Clearly in Queensland because that is where the plaintiff, the injured person, is entitled to have received that which is ex hypothesi reasonable to safeguard his interests.

GLEESON CJ: Well that is not affected by the absoluteness of the New South Wales resident's control over his manager.

MR WALKER: Quite, which is why our argument succeeded, whether or not we also succeeded in what I will call, perhaps provocatively, the corporate veil argument about whether there was a duty of care imposed on my clients at all because whether or not there was, the tort was still to be located firmly in New Zealand. To take your Honour's example, were that absentee landlord to take up residence in Monaco or to spend his life cruising the Caribbean whereby one could say that the decision not to warn or the decision to warn only in negligent terms was taken on the high seas or in the principality, one, in our submission, would not lightly come to the conclusion that the tort was committed and therefore suit should be governed by the law prima facie of Monaco or whatever high seas regime would obtain.

It is for those reasons, in our submission, that the main threshold issue in this case which is the only one that could affect the result in the case, is one which depends upon the plain authority of this Court's adoption in Voth v Manildra as ordinary common sense of the principles exemplified in Distillers, the thalidomide case. It is not suggested anywhere that Distillers made new law or made controversial law. This Court described it as merely a common sense approach to the necessary question to be asked and, of course, the thalidomide case, like this case, is a classic example of how to locate what philosophically might be difficult but in law is not at all difficult, an omission and where it is - - -

GAUDRON J: And the same occurred in Voth.

MR WALKER: The same in Voth according to majority analysis of the facts in Voth and just as in the thalidomide case it was irrelevant that the packaging was done in the United Kingdom - it might have been farmed out to Korea or to Ireland - what mattered was that the hapless mother or the hapless embryo was denied the warning they should have been given or the mother should have been given in Australia. The fortuitous nature of the location of other elements in the necessary history leading to the disaster is emphasised in the thalidomide case where their Lordships point out that the drug may have been ingested on holiday, for example, in South Africa. That would not have located the tort in South Africa.

Similarly, here, the fact that there were board meetings in Sydney in Asbestos House is quite irrelevant bearing in mind that if the board meetings or the conference or the technical committee which decided on such matters had decided to meet in Hawaii or in Western Australia or had gone to America in order to obtain some international expertise, still the tort whereby the plaintiff was injured by reason of a lack of warning or the plaintiff was injured by reason of inappropriate ventilation and the like would be committed where the plaintiff was working on the factory floor, namely in New Zealand.

In our submission, for those reasons in terms of special leave, there is a mundane appearance about the issue which was presented which was the threshold issue and upon which the whole of the result turns. Of course, if the threshold issue were to be determined by saying that Distillers was wrong, that this Court should not have described Distillers as common sense in Voth v Manildra and that the trial judge was correct, notwithstanding the cogent analysis of his error in this regard by Justice Sheller, then there would be another issue raised.

That other issue would be the issue which we call piercing the corporate veil. Interestingly, the other side have resisted at all stages that being the description and for good reason. There was never attempted the difficult task of persuading the trial judge or of the Court of Appeal that here was any sham or here was any fraud or here was any nefarious purpose of a kind which usually results in lifting the corporate veil or ignoring the realities of corporate form, nor was there any allegation of agency, nor was there any allegation that there was, in effect, the running of the New Zealand factory other than by its occupier, namely the New Zealand company and the employer of its workers, namely the New Zealand company.

At best there was a history which included, significantly, the history of setting up the subsidiary itself, a history of technical liaison, of common directorships and, of course, the corporate control which comes with the 95 per cent shareholding. Those things, as the Court of Appeal in England has held, as the US Supreme Court has recently held, are never, of themselves, enough to impose on the controlling company the same duty, either in substitution or as overrider, as is imposed upon an employer by dint of being an employer.

For those reasons, in our submission, the second issue, which might be called the duty of care issue if one can lift the corporate veil, does not itself raise any issue which requires settlement by this Court. It simply presents the same issue as has been presented time and time again, whether one calls it the principle in Salomon's Case or not does not matter, namely that there is a difference between corporate identity and the sins of the subsidiary are not to be visited upon the parent company or the holding company simply because it is the parent or holding company. One needs more, thus in Wren's Case, the fact that the holding company was the employer of the factory managers whose directions were negligent clearly sufficed for there to be direct liability.

As your Honour Justice Gaudron has elicited from my learned friend this is not a case of vicarious liability. It is direct or nothing and in this case there are no findings of fact which enable a direct liability to be sheeted home once the plaintiff gives up altogether any of the orthodox means of lifting the corporate veil and once it is recognised that there are no findings that the Australian companies directed the way in which workers were warned or directed the way in which the system of work operated in New Zealand.

At pages 121 to 122 of the application book, in reaching his Honour's conclusion on those matters, Justice Sheller points out, starting at line 5 on 121 and going over just before line 5 on 122, the way in which the matter ought properly be analysed contrary to the way in which the trial judge approached it. At the foot of page 121 he says, the second last line:

These -

that is, the breaches -

were a failure when supplying asbestos to a consumer to warn of the dangers of its use without appropriate safeguards -

"consumer" should read "worker" who is exposed to it as well -

or if indeed the defendants had the capacity to give instructions which JHNZ was bound to accept, the failure to ensure a safe system of work for JHNZ's employees.

Once it is seen from the pleadings and from the way in which the case was run that those were the only issues then, in our submission, the case never presented anything other than an ordinary application of extremely well established principles.

Finally, my learned friend placed some emphasis on the fact that there was a submission that there would be no contest in relation to foreseeability as if that somehow presented an issue or required a conclusion which demonstrates error in any of the findings of the Court of Appeal. It might be assumed that foreseeability is an important step on the way towards making out a duty of care but it can never be sufficient, bearing in mind that it is neither trivial nor wrong to observe that there must, at any given time, be a large body of competing manufacturers in relation to asbestos or government regulators or medical authorities of whom it could also be said they too would have some knowledge or imputed knowledge of the foreseeability of injury.

In our submission, for those reasons, there was nothing and remains nothing in the supposed concession as to foreseeability. It all led back to the threshold question. Be it assumed against the fall-back argument we have put in relation to corporate identity that there was a duty of care. Be it assumed there was a breach. Where did the tort take place for the purpose of establishing the jurisdictional conclusion necessary, not as a matter of discretion, but as a matter of the double actionability rule? Once one accepts that Distillers provided an example of the common sense principle and that this Court cemented Distillers' authority in Voth v Manildra in a way which was never challenged or argued nor has been raised before your Honours this morning, in our submission, there is no issue fit for special leave.

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal with three things. The first is it is really quite clear if one looks at page 130 that what was being contended on our part was not control simply by virtue of shareholding. You will see a reference to shareholding at line 4 on page 130 but when you come to line 12 what your Honours will see is that his Honour says:

Rather, the argument was -

and that refers back to a few lines further up, and then your Honours will see towards the bottom of the page that the reliance was:

upon the alleged acts or omissions of the defendants themselves.

It was the judge who said, at the top of the next page, that he found that "difficult to distinguish". What we would seek to say in relation to that is that one can see simply by looking at what was said in that Lubbe Case, for example, that there is a fairly clear distinction.

The second thing, your Honours, is this. Your Honour the Chief Justice referred to the example of the grazier but if one had a situation where the grazier is an expert carrying on grazing business as in, for example, a number of States in Australia or places in Australia, and if what happens is that in Sydney, say, or in the jurisdiction in question, there are regular meetings held where, on those occasions, instructions are given, for example, or the ability to give instructions exists in relation to particular matters to managers from all over the various places in Australia and if, on an occasion when instructions might have been given, they are not given on that occasion, it is perfectly open to say, in our submission, that the place where the tort occurred, relevantly, and one does not have to have every element of the tort occurring in the jurisdiction but rather the common sense approach to it is that happened at the place where the instructions should have been given.

GLEESON CJ: Even though the stockman might never have ever set foot in New South Wales?

MR JACKSON: Indeed, your Honour, that can well happen and it is not very surprising that that is so, particularly in circumstances where you have got a number of different jurisdictions. It is becoming a more common thing, of course, with companies that are international or spread throughout a country. Your Honours, what it may mean, of course, is an ability to sue in two places.

GLEESON CJ: Yes, but there cannot be a tort in two places, can there?

MR JACKSON: Well, your Honour, that itself is a question of some importance, in our submission. If one is talking about a question of, say, where, for the purposes of the double actionability, to put it shortly, purpose, there is a tort, that itself carries within it what is meant by the tort, to use the abbreviated expression in that area. That is an important question.

The last thing, your Honours, we would seek to say is this, that our learned friend speaks of the corporate veil. We do not suggest that the New Zealand company was not a company. Of course, it was. It had purposes. It had a corporate existence for New Zealand purposes, but, of course, one can easily have a situation where two persons are liable for the same tort, in effect, for the same damage and that is not very surprising if one has, as in Wren, for example, one company in a group taking control in relation to the activities of another. Both are liable.

GLEESON CJ: For present purposes, the key aspect of the reasoning of the decision of the Court of Appeal is to be found in the conclusion expressed at page 41 of the reasons for judgment of Sheller J as follows:

So far as the plaintiff relied on the relationship between JHNZ and the defendants, the case particularised was one not of failing to warn JHNZ but of failing to ensure, by means of the control capacity they were said to have, that the workplace was safe. In one case the place of the tort was the place where the warning should have operated to protect the plaintiff, in the other, the place where the system of work should have been safe. Both places were in New Zealand and I have no doubt that it was there that the tort complained of, properly analysed, occurred.

The Court does not consider that there is sufficient reason to doubt the correctness of that conclusion and, for that reason, leave to appeal is refused.

Can you resist an order for costs, Mr Jackson?

MR JACKSON: No, your Honour.

GLEESON CJ: The applicant is to pay the respondents' costs of the application.

AT 11.22 AM THE MATTER WAS CONCLUDED