Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) [2008] HCATrans 322 (4 September 2008)

Last Updated: 16 September 2008

[2008] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M40 of 2008

B e t w e e n -

JANINA PUTTICK EXECUTOR OF THE ESTATE OF RUSSELL SIMON PUTTICK

Appellant

and

TENON LIMITED (FORMERLY CALLED FLETCHER CHALLENGE FORESTS LIMITED)

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 SEPTEMBER 2008, AT 10.05 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.R.C. GORDON, for the appellant. (instructed by Slater & Gordon)

MR A.S. BELL, SC: May it please the Court, I appear with my learned friends, MR L.G. DE FERRARI and MR R.L. GARNETT, for the respondent. (instructed by Freehills)

MR BELL: There has been a change of name to the respondent to Tenon Limited and a consent minute to that effect has been filed in the registry.

GUMMOW J: What is the name again?

MR BELL: Tenon Limited.

FRENCH CJ: Thank you, Mr Bell. Yes, Mr Walker.

MR WALKER: Your Honours, the issues in this appeal defined by the grant of special leave for the ground of appeal that your Honours have seen meant that there was one paragraph in our written submissions which was exorbitant, paragraph 57, which is no longer pressed.

CRENNAN J: Could I ask you in that context, Mr Walker, does that imply any concession by you that if the governing law is the law of New Zealand, Victoria is a clearly inappropriate forum?

MR WALKER: Your Honour, it implies only this concession, that we do not have special leave to contend to the contrary of that. Things may have been otherwise but they are not. The fact is the order granting special leave is for the ground that your Honours have seen which certainly does not embrace challenging the conclusion implicit or explicit, depending upon one’s reading of it, at first instance and in the Court of Appeal, that given the choice of law made by their Honours, Victoria was a clearly inappropriate forum. I simply do not have special leave to challenge that if the choice of law be New Zealand.

CRENNAN J: Thank you.

MR WALKER: In answer to Justice Crennan’s question about a concession, that is not to say that there would not be arguments against that proposition, but I am bound by the grant of special leave. Your Honours, I hope I have also received a message that my friend’s notice of contention, paragraph 5 is no longer pressed. That is what might be called the strike out point. Success on that argument, of course, would require orders different from those which were made in the Court of Appeal. It is not a contention point. That has the effect, so far as the issues and argument before your Honours are concerned, of removing very greatly, perhaps entirely, consideration of the New Zealand statute in relation to the compensation scheme in question.

FRENCH CJ: That takes out 66 to 70, I think, of the respondent’s submissions.

MR WALKER: It does. Your Honours, we would wish to commence, if I may, by exposing how, in our submission, the choice of law issue is critical. At first instance, volume 2 of the appeal book, page 666, Justice Harper addressed the nature of the issues as he saw them in paragraph 15 where, having noted the “clearly inappropriate forum” test that bound his Honour and was the basis of the argument for him laid down in Voth, he noted that of course New Zealand law as the lex causae would not on its own satisfy that test in relation to Victoria. There is no dispute between the parties about the correctness of his Honour’s self-direction in that regard.

GUMMOW J: But no one has pleaded any foreign law yet.

MR WALKER: No, they have not. Page 668, paragraph 21, after reviewing factors, whether they be called connecting or not does not matter, his Honour decided that at that point, before he had made the choice of law determination:

New Zealand would be the more appropriate forum; but, at the same time, Victoria would not be clearly inappropriate.

Regardless of our position in relation to the merits of the first part of that holding, which are not before this Court, it is, with great respect, an impeccable way to proceed to say of some, but not all of the factors, that they may tip the balance a certain distance but that distance is not sufficient for the test required by this Court before a stay is granted.

GUMMOW J: Mr Walker, before we get into empyrean heights, just looking at page 662, what is the significance of the absence of the Tasman Pulp & Paper Company Limited from this litigation? It was the employer, was it not?

MR WALKER: It was the employer, whose employees in their work were managed, controlled and directed by the defendant – as I will call the respondent. That is the allegation.

HAYNE J: That is the allegation in the statement of claim that we see at page 5. Is that the last version of the pleading or the relevant version of the pleading?

MR WALKER: Yes, and in further answer to Justice Hayne, it is in particular at volume 1 of the appeal book, page 6, paragraphs 4 and 5 where the basis for my submission to Justice Gummow, in answer to his Honour’s question where that foundation is found. In particular, 4(d) “Tasman”, the corporation Justice Gummow asked me about was:

a corporation with no effective independent direction, management and control other than that exercised by the Defendant, its servants or agents.

5. By reason of the direction, management and control . . . over Tasman and over the work of its employees –

and I stress in particular that last phrase which your Honours will see picked up in in particular our written reply submissions.

GUMMOW J: One does not normally sue holding companies.

MR WALKER: No, it does happen from time to time. It happened in CSR v Wren. It depends entirely upon the facts and I should state at the outset, then - - -

GUMMOW J: The ghost of Sullivan v Sullivan is walking across the stage, is it not?

MR WALKER: Yes, it is.

GUMMOW J: It is more than a ghost.

MR WALKER: I am not suggesting it is dead by any means. Your Honours will have seen discussion of that very point in the case which is variously called Putt or Hall, another case where the plaintiff changed because of a death - if I may call it Putt, where the very point that Justice Gummow has just raised played a part in the consideration of the question there. However, in our submission, this is entirely preternaturally a matter of fact. In our submission, there is no rule of law that corporation A can never owe a duty of care to a person who is an employee of corporation B - - -

GUMMOW J: There are matters of discretion involved here.

MR WALKER: Yes, your Honour. May I try to embrace that difficulty immediately. It follows, the more I stress the peculiar matter of fact in relation to Tenon and Tasman, which is the basis of our pleading with its assumed facts for the purpose of this argument against Tenon, then of course the more I focus attention on New Zealand as a place where many of the facts are located, that is, the facts that make it Tenon and not Tasman who is sued for breach of a duty of care in all relevant respects resembling that of a common law employer’s duty.

GUMMOW J: Well, I will not go on about this, but it seems to me that the next question then is, where was this direction, management and control exercised? I imagine New Zealand?

MR WALKER: Mostly it will be in New Zealand, but it will be everywhere that the employee has worked, which certainly will include from time to time other countries, be they Australia or Belgium or Malaysia.

FRENCH CJ: You cannot discern that from the pleading though?

MR WALKER: Your Honour, you can only discern that last matter from the pleading on pages 6 and 7, paragraph 6 and the nature of the particulars on pages 9, 10, 11 and 12 under paragraph 10.

HAYNE J: If we stay for a moment at paragraph 6 on page 6, does the passive voice obscure that the requirement was made in New Zealand?

MR WALKER: As usually it does do that, your Honour, yes.

HAYNE J: But are we to read it as in effect alleging the making of a requirement in New Zealand?

MR WALKER: Yes. Now, that is in the making in the sense that that is the place where the Court ought to proceed on the basis that that is the place where an instruction was given and commenced to be acted on. I say “commenced to be acted on” because obviously it is a direction, compliance with which requires conduct out of New Zealand as well as in New Zealand. Go on a trip, was the instruction. He started the trip in New Zealand. There is no question about that.

On appeal there was a challenge made, not part of the issues in this Court, to the alleged excessive weight given to the choice of law factor by Justice Harper. That challenge was dealt with in the Chief Justice’s reasons in volume 2 starting at page 769 in the passage continuing for two pages, paragraphs 39 to 43. I will not read it all. In the course of that, on page 770 a reference is given to the proper understanding of the words “vexatious” and “oppressive” required by the authority of this Court in Oceanic and Voth and there was refutation or rejection of the then appellant’s argument concerning Justice Harper’s weighting of the discretionary factors in paragraphs 42 and 43.

It is clear from that that her Honour was holding that it was not correct to say that his Honour had over valued the choice of law. He had considered it along with the other matters, which he had, as I have noted, regarded without it as not sufficient to supply the test, satisfy the test for a stay. Then in what is called the “subjective balancing exercise”, together with the choice of law, together with the peculiar nature of the statutory regime in question, decided that Victoria was clearly inappropriate.

GUMMOW J: Now, these forum applications can be made with support of interlocutory evidence, can they not?

MR WALKER: Yes.

GUMMOW J: Is there any evidence as to who the witnesses were likely to be, where they were likely to come from?

MR WALKER: There was evidence of a kind which was reviewed by Justice Harper at first instance in a way that we have no complaint about. It is clear, for the very reasons that I have put concerning the relations between Tenon and Tasman, that there are witnesses and, one might say as well, records which in the nature of things are far more likely to the point of practical certainty to be located in New Zealand than in Victoria or indeed anywhere else.

GUMMOW J: Is there any evidence about medical experts?

MR WALKER: There is a finding that the medical question is not likely to be of any evidentiary difficulty in relation to my client’s late husband, that is, his diagnosis, the attribution of it to prior asbestos exposure, is most unlikely to be the source of any evidentiary battle requiring expensive - - -

GUMMOW J: Exposure where?

MR WALKER: As to the question of exposure and where that exposure was, there was no evidence tipping the balance one way or the other concerning what I will call the location of international experts of the kind which are very often used, not least because they are not actually very common, there are not many of them, in asbestos litigation. That was not a tipping factor. I will have this checked, but I think there is no consideration of the evidence of anything that can be measured in a meaningful or useful way for the stay application with respect to evidence of the factory premises in Belgium and Malaysia, but that is in the nature of the plea, obviously; also something which will require exploration. That, one would have thought, regardless of one’s views of the breadth of the Tasman Sea, is a neutral as between Victoria and New Zealand.

GUMMOW J: I will be quiet in a minute, but the only other matter I wanted to raise with you was, is there any consideration given of the legislative revisions now made for trans-Tasman co-operation litigation?

MR WALKER: I think the answer to that is, no, none at all.

GUMMOW J: New Zealand is another jurisdiction, but it is not quite a fully-fledged foreign country when it comes to the conduct of modern litigation.

MR WALKER: Yes. They are more formally cousins than other common law jurisdictions.

GUMMOW J: In the child abduction case we had last year we looked at the evidentiary provisions, for example, we have with New Zealand.

MR WALKER: Yes. Your Honours, I would be bound to accept that any choice being made by an Australian court, according to a test of “more appropriate” in relation to New Zealand, would be materially augmented in favour of those seeking a hearing in New Zealand by the statutory provisions to which Justice Gummow has referred. They do not stand alone, of course. The relative physical proximity of New Zealand to Australia is another reason why New Zealand, more than most other jurisdictions which are foreign, would be more likely to satisfy the description of a more appropriate forum than an Australian jurisdiction. The same is true of the very great, if not complete, similarity of our common laws and the very great, though not complete, similarity of the organisation of the courts and legal professions in both countries, indeed, the shared personnel in relation to some of the professions.

That is only to say that it would help to satisfy a more appropriate test. None of that, that is, none of the closeness culturally, systemically, formally in relation to evidentiary and other provisions of a full faith and credit kind, none of those matters between Australian jurisdictions and New Zealand as a jurisdiction renders in terms, or by implication, any of the Australian jurisdictions thereby clearly inappropriate unless “clearly inappropriate” has its content supplied by the pure notion of relativity which is conveyed by the comparison “more appropriate” which is not presently the law. In our submission, it would be to deprive the clearly inappropriate test of any of its intended force and effect to say that something is clearly inappropriate if another jurisdiction is more appropriate or clearly more appropriate.

In short, the law in this area, in our submission, in the practice of the courts below this Court, according to the precepts laid down by this Court, combine to show that there will be many cases in which justice will be adequately or more than adequately served in more than one jurisdiction for one case, and that is a not uncommon situation, particularly one well understood in a federation.

So that, in our submission, once one rejects the notion that “more appropriate”, answered affirmatively for New Zealand, supplies the answer “clearly inappropriate” for Victoria, once one rejects that then, in our submission, the matters that Justice Gummow and others of your Honours have just raised with me, are not matters which can be called in aid under the present law.

Now, can I turn immediately to that question of the notice of contention? It is paragraph 4 at volume 2 of page 810 which is the one in question, and I am turning to it first because this is, of course, a fundamental matter. It is to set the terms of the argument, to set the limits of the discourse permitted in relation to the stay, and in that paragraph 4 leave is sought to reopen Voth.

It is clear from the argument that your Honours have read from the respondent – it is clear from the argument, as we put it – without having had the benefit of hearing my friend on it yet – that it is an attempt to persuade this Court that Spiliada is the superior solution to the problem. In our submission, there are important preliminary steps that have to be taken successfully by the respondent before that could be entertained by this Court.

Now, the conditions – if I may call them that – in John v Federal Commissioner are not a prerequisite in any formal sense, but they are, with respect, badges that one would want to have when seeking leave to reopen an authority of this Court. There has been no attempt, as we read the submissions against us in this regard, to show that any one of those four has been made out.

GUMMOW J: I read this as just a more abundant caution submission.

MR WALKER: And for more abundant caution against more abundant caution, I think we need upfront to say in our submission this is - - -

GUMMOW J: It seems to me if your opponent has to persuade us to reopen Voth in order for him to succeed, he is probably in trouble.

MR WALKER: I hope so. We would say that nothing in Imbree v McNeilly [2008] HCA 40 at paragraph 45 throws any different light on the nature of the task faced by the respondent in seeking leave to reopen, but could we pick up and seek to adapt to this case the language at the end of that paragraph. In seeking to ensure that the power of this Court to do justice by shaping the judge-made law, as it ought to be shaped, not be cramped, with respect, your Honours referred to the necessity to contemplate change necessary, that is change of the judge-made law:

to maintain a better connection with more fundamental doctrines and principles.

I repeat, the attempt in this case is simply to say Spiliada is a better solution. In our submission, a rapid recitation of some of the later references to and applications of Voth in this Court, leave aside the innumerable obedient applications of it below this Court, conclusively demonstrates that there is no attempt being made here to show that there are any more fundamental doctrines and principles, a better connection with which is necessary so that Voth ought to be abandoned for Spiliada. Firstly, in our submission, one could instance what happened in this Court in Zhang, 210 CLR - - -

HEYDON J: Mr Walker, why are we concentrating on paragraph 4 of the notice of contention rather than your ground of appeal? That is the big core problem in the case.

MR WALKER: It is, your Honour. The short answer to your Honour’s question is, in order to put to one side immediately the question of the proper test, if the test - - -

HAYNE J: How does that arise on your notice of appeal?

MR WALKER: It does not.

HAYNE J: What are we talking about it for, Mr Walker?

MR WALKER: If it pleases your Honours better, I will defer this until hearing my friend on the matter. I am perfectly happy to do that. In answer to Justice Heydon I should add this, we accept that different dispositions of this case may arise, depending upon what the true test is, even if we are right on choice of law. If we are right on choice of law then if the test remain as it presently is, Voth, in our submission, from a simple appreciation of the way in which the discretion was addressed by the first instance judge and was vindicated in the Court of Appeal I need, I think, to call in aid Justice Chernov as implicitly supporting the Chief Justice in that regard, but an appreciation of that reveals that if we are right about choice of law then there would have been, or should be, no stay and that the matter can be brought to an end in this Court.

The order that ought to have been made in the Court of Appeal was to uphold the appeal because the matter which turned out to be in the mix, a critical factor turning a merely more appropriate into a clearly inappropriate, would have been wrongly decided and therefore we should succeed.

For those reasons, with great respect, what Justice Heydon puts to me is plainly the direct way home. If we are right on our one point of appeal, then that is the end of the case and we win. However, the importance of the appropriate test to be applied emerges as follows. If we are wrong about Voth remaining the law, if your Honours were to choose, I will call it in shorthand Spiliada, then bearing in mind the ready facility of courts in Australia and one can say in New Zealand and many other countries to apply foreign law according to their choice of law rules, then it obviously is a different question as to whether doubts about or a different result concerning choice of law could nonetheless render New Zealand not a more appropriate forum and that is why the availability of the proper test to be applied is critical, but I will say no more about until after hearing my friend and then only if necessary.

Your Honours, there is but one question, therefore, critical for our success in this Court and that is to persuade your Honours that the approach taken to the facts assumed by reason of the pleading of particulars to the location of the wrong was correctly approached and with the correct result by the Court of Appeal.

GUMMOW J: We need to know what the wrong is first.

MR WALKER: Yes. In this case the wrong is alleged in terms of the common law, it would appear of Victoria by silence, of negligence causing personal injury.

HEYDON J: It is one common law.

FRENCH CJ: Common law of Australia.

MR WALKER: I am so sorry. According to the law of Victoria, which is a combination of the statutory provisions permitting the survival of causes of action and Lord Campbell’s Act cases and the common law of Australia. I do apologise. I am bound to point out, however, that this case has been argued both at first instance and in the Court of Appeal below on the basis that the choice of law required the selection of Belgium and Malaysia as the places whose laws should govern as lex causae. Now, although at first instance that received little if any consideration, that is, New Zealand was largely referred to in the reasons, it is recorded that that was argued. One sees that in volume 2, page 665, at the end of paragraph 13.

HAYNE J: For present purposes, is the critical paragraph of the pleading that must be considered paragraph 5?

MR WALKER: No, that is one of the critical paragraphs. It is the combination of paragraphs 5, 6 and 10 that provide the material from which, what I will call, the real cause of complaint is to be discerned, accepting as we do that no great reward to what has sometimes has been called the ingenuity of a pleader.

HAYNE J: Clause 5 alleges a duty to a class, including the defendant, identified as those who might be harmed by failure and who were reliant, and is attached to or seen as flowing from direction, management and control exercised by Tenon over Tasman and its employees. Is that right?

MR WALKER: Yes, it is the last three words, in particular, to which we attach – it is the management, direction and control exercised by Tenon over the employees of Tasman which is, in our submission, critical. To put it in actual terms, for my client’s late husband while he was in Malaysia and Belgium he was as much subject to the management, direction and control of Tenon as when he was in his office in Auckland, if he had an office in Auckland.

HAYNE J: But it is the control over the work that has the peripatetic aspect?

MR WALKER: Yes, quite. So go to the South Island, go to Sydney, go to Malaysia, go to Belgium and while there do the following things and of course these are not places where one is out of touch. One remains subject to the management, direction and control at all those places. Now, it is for those reasons that, in our submission, as we put in our written submissions, the fact that it was the particular dangerous premises that enlivened the duty of care so as to require its content from time to time to include proportions and/or warnings about the asbestos exposure, it is that which, in our submission, is the key to locating the wrongdoing in the places where Mr Puttick was exposed to the risk, the place where his relevant interest was infringed – his relevant interest being his safety, his health and safety.

KIEFEL J: Did the Chief Justice approach the question on the basis that assuming the pleading to be one of effectively failure to provide a safe place or system of work, that in any event any direction that the defendant would have given would have emanated from New Zealand? The defendant could not in any way be placed in Malaysia or Belgium for the purpose of that and I am misreading her Honour’s - - -

MR WALKER: With respect, I do not think that is a misreading.

KIEFEL J: How do you overcome that? Do you say that the giving of a direction to ensure a safe system in another country is not an end of the matter, that you look to where that would be put into effect or do you rely upon damage – damage to the employee – or is it a combination of both?

MR WALKER: Thank you very much. I think your Honour has asked for the whole of my argument in answer to a question and it falls out as follows. No, we do not rely upon what your Honour called damage, as such, but in a case where the breach of the duty results in the harm there and then, so the careless driver who hits the pedestrian, it will be the case that the damage does occur in the same place as the wrong is located for the purpose of choice of law, but it is located not because that is where the damage occurred, but because that is where the breach was significant as the cause of complaint. That is why it is of no moment that a person who is injured in Wodonga is immediately taken back to Albury for treatment and convalesces in Brisbane. It is the place of the wrong is Victoria.

HEYDON J: But you do not know what the wrong is until you know what the law of the place where some events took place.

MR WALKER: Your Honour, with respect, that is a matter, to put it neutrally, which is not thrown up or confronted by the pleading and is not, I think, on my understanding of the reasons in both courts below, discussed. I wonder, if your Honours would excuse me, if I could try to attend to what Justice Heydon has raised and then return to the course of my much more comprehensive answer to Justice Kiefel.

HEYDON J: Yes, I apologise for interrupting your answer to that question.

MR WALKER: Not at all.

GUMMOW J: Is this a matter of characterisation?

MR WALKER: It is, and it is the acute question - - -

GUMMOW J: Is that a matter for the forum?

MR WALKER: It is the acute question of when you do it. Now, in many ways, the parties in the way the argument fell out below bring us to this position. What looks for all intents and purposes like a claim governed by Victorian statutes, including statutes as to survival of cause of action and as to the right of dependence, Lord Campbell’s Act, and otherwise in accordance with the common law of Australia, that is, asserting negligence, that.....duty of care of breach of the reasonable standard of care, was from the beginning of these applications being argued treated as one where a live question was raised on the face of the pleading, particularly paragraphs 5, 6 and10, whether in fact it was, according to the private international law of the common law of Australia, a foreign tort in the sense that the wrong was committed, that is, there was a locus delicti, in this case perhaps loci delicti, outside the forum.

Now, that, in our submission, is an appropriate time at which one considers whether that question is raised. Unfortunately, it has the immediate effect of rendering the pleading, perhaps not entirely appropriate but not completely accurate, as to the way in which the claim is put.

As it happens, by sheer happenstance, the law of Malaysia properly yields a pleading pretty similar except for the questions of survival of cause of action and Lord Campbell’s Act that simply have not received attention in the discussion of this case hitherto.

HAYNE J: The Lord Campbell’s Act and survival of causes of action, et cetera, were confronted by the Court in Koop v Bebb 84 CLR, particularly at 629, were they not? The analysis there made was, was it not, that the Victorian Act then in question, the Wrongs Act and Lord Campbell’s Act provisions gave a “Right of action in Victoria” whenever the condition was fulfilled, that the deceased, if he had survived, would have been entitled by the law of Victoria, including its rules of private international law to recover damages from the act, neglect or default, et cetera. So the references to the implications of the statutory law of Victoria are essential for the maintenance of the cause of action but distracting, are they not?

MR WALKER: That is why they play no part in my argument. They are critical to understanding what we pleaded. We relied upon the Victorian statutes. We cannot pretend that is not true. It is not a purely common law cause of action – it is doubtful whether there is ever any such thing nowadays, but otherwise, with great respect, the way Justice Hayne has put it is our position about those statutory provisions. They are essential to be noted. They are not material to our choice of law argument, or to the question of the pleadings’ appropriateness in relation to that.

HAYNE J: But the foundation of the argument of those moving for stay was that if you take the pleading on its face, it is evident that - - -

MR WALKER: This is New Zealand?

HAYNE J: The lex causae is other than Victoria?

MR WALKER: No.

HAYNE J: No?

MR WALKER: That was only the first step they took. They wanted the second step in particular that it was New Zealand, why they wanted New Zealand, because after all we are saying it is not Victoria. Now, I know there was an argument at an earlier stage by which we said it was Victoria - - -

HAYNE J: They wanted to say New Zealand because the only facts alleged on their face seemed to have location in New Zealand?

MR WALKER: And obviously, New Zealand gives them advantage – this is no criticism of them at all – that they say they have an argument which puts paid to any claim beyond statutory payments.

HAYNE J: The answer you make is that exposure occurs in Malaysia or Belgium, and that the holding company of the employer at least could have issued an instruction immediately before entry into those factories. Is that right?

MR WALKER: Yes.

HAYNE J: You say, should have, but also does it not follow, on this argument, that the holding company of the employer both could have, and on your argument, should have issued such an instruction before departure from New Zealand?

Your Honour, there is no doubt, as one sees from the approach of the Privy Council in Distillers, that where an omission to warn or to find out about precautions – and there is no magic, we submit, about the difference between warning and other precautions – is alleged, commonsense and experience of the world tells you that there may be a number of different places and thus a number of different law districts in which that which was not done might have been done.

HAYNE J: That is why I injected the “should have” aspect of the proposition at both levels, Mr Walker.

MR WALKER: Yes. Your Honours will appreciate that I am now right hard up against trying to avoid promulgating as a rule last opportunity. Having noted that that is the danger I am now courting, I am bound to say in answer to Justice Hayne that in the all-important conversion from “could have” to “should have”, in our submission, the place where the risk in question might come home, if there is not compliance with duty, selects itself from amongst all the places where something could be done as the place where it should be done and, if necessary, you add the phrase “if it has not already been done”.

If that partakes of last opportunity, then I have to live with that and submit that in fact “last opportunity” should not be seen as some derogatory slogan which damns an argument completely. It often, in our submission, satisfyingly answers the expectation of the parties that it is the place where their respective positions bring them into meeting – intersection, interaction - to the detriment of the plaintiff by reason of the conduct of the defendant, which is the place of the wrong.

HEYDON J: I am sorry for interrupting you, Mr Walker. It seems to me a lot would depend on the precise facts. The deceased first went overseas when he was 20 or 21 years of age. If he were accompanied by some senior officer of Tenon or possibly of the subsidiary of Tenon, that might be different from circumstances in which he and others were sent over without any senior officer. In the latter case, perhaps there should have been a thorough set of warnings in New Zealand. If, on the other hand, they are going from place to place, sometimes coming very near points of danger, it would perhaps be sensible to expect a duty to be fulfilled just before they got near the machinery that was creating the asbestos dust. We do not know from the papers, do we, what the facts are?

MR WALKER: No.

HEYDON J: I mean, the pleadings do not reveal it, but is there anything else that might reveal more detail?

MR WALKER: No. I think the facts certainly reveal that he was managerial rather than menial. He was by no means menial.

HEYDON J: At the age of 21?

MR WALKER: At the age of 21, no – at the relevant ages; at the relevant times, though, which went over seven years.

HEYDON J: The relevant times began in 1981.

MR WALKER: It began and then continued until 1998. He was not being sent abroad because of his lack of capacity to contribute to the enterprise; to the contrary.

CRENNAN J: May I ask you this, Mr Walker? Sorry if you have not finished your current answer.

MR WALKER: No, just pausing there, your Honour.

CRENNAN J: I wanted to ask you whether you were putting the case the same way in the Court of Appeal as you were describing it to Justice Hayne just before and in that context wanted to direct your attention to paragraph 21 of the Chief Justice’s decision. It is on page 761 of the appeal book, volume 2. The Chief Justice there is considering the particulars both in relation to providing an unsafe system of work and also providing inadequate warnings and she says, and I would like your comment on this that:

the applicant cannot point to an act committed by the respondent in Belgium or Malaysia - - -

MR WALKER: This, in our submission, is to confuse the question of the location of a wrong, which is the ultimate question given lex loci delicti as lex causae, with the physical or other relevant presence of a legal person in a place described geographically.

CRENNAN J: She is focusing on acts which is, in a sense, the passive voice point that was made before in relation to management and control.

MR WALKER: The difficulty is that this Court and, with respect, none of the other courts whose work this Court has considered in this kind of argument have ever regarded the location of an act as requiring, let alone being determined by, what I will call the physical location of a person. The act is an act which has legal significance and where it can be seen as omission, which is at the heart of the problem we confront, that is, we the panel confronts, as discussed by this Court in Voth and as we wish to argue in this case, it is even less appropriate to insist that the location of the omission somehow ride with the actual physical location geographically of the party; not least because, for example, it may be that the omission in question was not to alter your location, not to accompany someone, not to go and do something.

But this is not a difficult or vexed philosophical question. It has been practically answered time and time again in another tort, different but with some similarities for the purpose of the conceptual analysis, liable or defamation, the act in question, as this Court emphatically demonstrated, with respect in Gutnick occurs in a place notwithstanding the complete absence of anything in the nature of physical location in that place of the party liable for the liable or defamation. That is because, understood in its legal context for that tort, the act in question was publishing on the internet basis. It is the downloading, not the uploading.

I wonder if I could, as it were, rest my answer to Justice Crennan with a proposition that paragraph 21 in the Chief Justice’s reasons at 761 of the appeal book is, with respect, wrong because it regards the question, “Where did the defendant act in relation to failing to provide a safe system of work and failing to warn of the dangers of asbestos dust?” as concluded by the proposition that the company was not in any relevant sense in Belgium or Malaysia. Now, I have to say “in any relevant sense” because in many ways the company was in Belgium and Malaysia by Mr Puttick himself, but that is a by the - - -

KIEFEL J: Do you rely on the continuing obligation of the employer to take it into the countries?

MR WALKER: Absolutely. The continuing obligation of the duty of care in this case is something that we have tried to pick up in our written reply. What will be required by the duty of care pleaded in paragraphs 5 and 6, what will be required will change from time to time and place to place. It will change from time to time because, for example, as is notoriously the case, of the growing appreciation of the dangers of a toxic substance such as asbestos.

It will change from place to place, and I do stress “place to place” because different places may very well pose different dangers, particularly if they have different national regimes for safety regulations of toxic substances such as asbestos and it is for those reasons that whether you are sitting in a head office in New Zealand or whether you are chaperoning your works inspectors, such as Mr Puttick, that is physically side by side with him, it requires an appreciation of the conditions in the potentially dangerous location which then determines what you have to do, if anything. In other words, if we are using common law reasoning, whether there has been a wrong, a neglect, by failing to say something or do something before somebody enters particular premises.

KIEFEL J: Which is to say that the employer is still in the position to protect the employee but does not do so?

MR WALKER: Quite.

KIEFEL J: How do you distinguish that from the last opportunity doctrine?

MR WALKER: Your Honour, in truth, I think only by semantics. It is very difficult to avoid that in cases of continuing duty the notion of a last opportunity is unavoidable. There comes a time when it is too late because the thing has happened. It is very difficult for me to argue that because of the contumely that has been heaped on last opportunity it is very difficult for me to argue that we are not having anything to do with it. The truth is, it will be significant and it ought to suffice for me simply to say it is not an inflexible rule.

GUMMOW J: Yes, but the disapprobation of last opportunity is in quite another context, is it not?

MR WALKER: I am so sorry, your Honour?

GUMMOW J: The disapprobation visited upon notion of last opportunity has been in quite in a different context, has it not?

MR WALKER: Mostly, yes, but it has been adopted, I am bound to say, in some choice of law or locating wrongdoing analyses.

GUMMOW J: Has it? I am not denying it, but I am - - -

MR WALKER: This is perverse for me to be looking for authority against me but I think – and there is nothing binding, obviously. May I take that on notice?

GUMMOW J: Yes.

MR WALKER: There is a comment somewhere at the back of my mind, your Honour, that suggests that there should not be use of last opportunity. What I am submitting is, as a phrase it may now drag all this derogatory mist with it but as a commonsense analysis of a position, particularly with a continuing duty, where there may be many times and places where you can, for example, train staff, it would be, in our submission, idle and quite misleading of the real relationship between the parties to say that the first time that you have the orientation or induction course for your staff is the time and place where you breached the duty to warn them about the circular saw and to ignore the time and place years later where the untrained workman is brought into dangerous proximity to the circular saw.

In our submission, in a case like that, of course he or she could have been, and in a moral sense should have been, trained at the first moment but the duty to warn to protect from the danger continued, because not satisfied, and in our submission its time and place of breach – its time of breach supplies the natural place for place of breach, place of wrong, that is where the cause of complaint arises.

Of course, in an ordinary colloquial sense you have a cause of complete that for years and in many different places you have not been told that such and such is poisonous or such and such should not be done, but the cause of complaint that is of legal significance, and this is all in the context of locating a tort for the purpose of choice of law rules because something has happened giving rise to a claim which is disputed, that place, in our submission, is where finally the continuing duty when breached infringed the relevant interest of the plaintiff in his or her health and safety.

FRENCH CJ: Do you rely upon all of the particulars of negligence in paragraph 10 as matters which we should treat legally as reflecting wrongs occurring in Belgium and Malaysia?

MR WALKER: I cannot say that all of the particulars either compel or even indicate Belgium or Malaysia, but taken as a whole there is more than enough to supply location of the wrong in the sense I have tried to answer in response to Justice Crennan and Justice Kiefel. To finish my answer to Justice Crennan, in particular in paragraph 21 the Chief Justice below, in our submission, does not supply any explanation as to how it can be said that there was a failure to provide a safe system of work in New Zealand in relation to asbestos in Belgium or a failure to warn about dangers in Malaysia by an act wholly and only located in New Zealand.

Once it is grasped that many duties, and therefore there breached the delict, can be brought about in ways that might have been avoided by actions in different times and places beforehand, then one is left with the familiar question, but which one is significant in law, and bearing in mind the phrasing which, in our submission, this Court requires to have regard to, that is, cause of complaint, that will be, in our submission, where the ocean liner and the iceberg meet; where the breach gives rise to the cause of complaint.

HAYNE J: Recognising that last opportunity rules have had at least a bad press – see particularly Alford v Magee [1952] HCA 3; 85 CLR 437 – the treatment of it in there is, as we all know, very extended.

MR WALKER: If I may note, that is, of course, one of the contexts that Justice Gummow was referring to, which is a different one from the present one.

HAYNE J: Exactly so. But what I am inviting attention to is whether the extended treatment in cases like Alford v Magee of the doctrinal infirmities attending the last opportunity doctrine and the consequent doctrinal infirmities that the notion that contributory negligence was a complete defence, do not at least point in a case of employment - or here where you have this added difficulty of the holding company being injected - do not at least point to the fact that when you are concerned to locate where the employer - or here the holding company - should have acted but did not? Yes, you may recognise that that company might have done so as late as that known constat that where that company should have acted is at the place of employment - here, relevantly, New Zealand.

MR WALKER: Quite so, your Honour. One way, your Honours, that we would put this – I hope this is not regarded as facetious – is that whatever might be said by way of criticism against a so-called last opportunity approach it has to be a lot better in answering the expectations (a) of the law and (b) of the parties in what is, ex hypothesi, an injured person and a wrongdoer - that is what we are talking about.

It has to be a lot better than a first opportunity rule because the first opportunity may be one of many and, by definition, did not cause any harm. The training could have happened back then, but did not. If it had happened then it might have avoided the harm. So that, in this case, New Zealand certainly is the first opportunity and probably the second, third, fourth and fifth.

But bearing in mind that the concern with safety, particularly, in our submission, acutely raised when you are sending somebody to premises that you do not control, we call that in aid. That is not a weakness in our argument. Where you are requiring that to be done for your profit, where you want information and observations to be brought back so you are sending somebody – you know that you are sending them somewhere else - for the same reasons that the courts have held that when you know you are sending your export goods abroad that your negligence is located in those places abroad where they are bought without a warning, so in our submission when you send your workers abroad for a reconnoitre, as it were, it is in the places where you are intending them to expose themselves to whatever is there and where you are either careless as to inquiry or careless as to response, that in our submission is satisfyingly according to the expectations of civilised conduct, the place which supplies the answer to the question, the place of the wrong. Then our choice of law rule says, and that is therefore lex causae.

Why I say satisfyingly fulfilling the expectations of civilised conduct is because it is after all in those places where not merely the plaintiff, but everyone equally exposed to those kinds of risks are regulated by the law of the sovereign of that place in their conduct. So, in our submission, for the reasons, with respect, convincingly demonstrated by this Court in Pfeiffer geography helps to supply an answer to how do you locate a wrong, particularly when it is or is partly to be seen as an omission, just as it does supply the call for certainty, which was why geography was availed of by this Court in Pfeiffer. Before I come to matters of, frankly, analogy, may I say this about the matter - - -

GUMMOW J: I am not saying this derogatively, but are you seeking to attract us to a most significant relationship theory?

MR WALKER: No. But the word “significance” - - -

GUMMOW J: Reflecting section 145 of the Restatement (Second).

MR WALKER: No. It would appear that the American approach very much involves highly particular and circumstantial considerations which will include matters of prior or continuing or subsisting relationship between the parties, which will bring in in its train matters that my opponent wishes to advert to, such as accessory choices of law where there is a contract, for example. In our submission, all of that is to move in a direction decisively not chosen by this Court when it held against flexible exception in Pfeiffer, repeated in Zhang. That is not to say that what we seek to persuade this Court to does not look to significance. The reverse is the case.

As your Honours know, no doubt to the point of tedium, we have repeated the verbal formula from Voth. We submit that it is Belgium and Malaysia where the omissions of this, I will call it quasi-employer, assumes significance. That is where the premises were that had the material which has lead to his injuries and death. If he had never been to those premises there would be no cause for complaint in the legal sense, however much one might be bitter and critical of an employer who did not sufficiently care to find out about the dangers you were being sent into.

For those reasons, in our submission, the notion of “significance” is at the very heart of our argument, but not in the restatement sense, we think, because we read the restatement sense as being - - -

GUMMOW J: One problem with the restatement - - -

MR WALKER: - - - germane with the proper law of tort approach.

GUMMOW J: The American cases indicate, really, you have to try the case to find out what the governing law is, because the facts get so complicated. That cannot be a good way of - - -

MR WALKER: Yes, and in the present context for a permanent stay application that is worse that useless, yes.

HEYDON J: Is there anything in the papers that can assure us that Belgian law and Malaysian law do not contain any bombs in it which are adverse to Mrs Puttick? We must not have a debate that is entirely academic. We must have some confidence that if you won, she would be better off.

MR WALKER: Malaysian law I think I can answer decisively, yes, on the material in the appeal book.

HEYDON J: Common law based?

MR WALKER: Yes. That does not mean there will not be a lively argument, factual and legal perhaps, about the matter with which your Honours started with me, namely, the holding company as defendant. The answer to Justice Heydon’s question is no, no bond there. The Belgian expert’s material, on the other hand – and I do not express this by way of criticism of anyone involved – is not quite so clear and it may only be because it is not quite so familiar.

KIEFEL J: Its law of delicts follows generally French law, but you would have to - - -

MR WALKER: Yes, and by and large, that law would not concern us. Can I simply point out one problem.

KIEFEL J: It would be the statute law that would be of concern to you, though.

MR WALKER: I am sorry, your Honour.

KIEFEL J: It might be the statute law or how they incorporate EC directives that might concern you.

MR WALKER: Yes. There is a discussion of the Belgian limitation periods in volume 2, starting at 515. I will not dwell on it. The one matter, in answer to Justice Heydon, that I confess might cause a flutter in us is at page 517, paragraph 18. It would appear to be a strict sine qua non problem. I only raise that because of something which is by now very familiar in this country and I think also in the United Kingdom and the United States and Canada in relation to asbestos claims and that is that, subject to more or less de minimis matters, all exposure of the relevant kinds of fibres are medically considered and seem to have been time and time again factually accepted by trial courts, upheld by appeal courts, as materially contributing to the fatal outcome.

FRENCH CJ: There has even been a one-fibre theory, that is, that a certain proportion of the population just picks it up from background exposure without going to a particular site.

MR WALKER: Unquestionably so, all of which informs the notion of cumulative exposure, everything materially contributing. That may only be because, in the nature of things, legal disputes should be decided in a way that does not offend one’s sense of ordinary justice and the notion that an array of asbestos defendants could all of them escape because the plaintiff, or usually the plaintiff’s survivor, the dead person’s survivors, cannot say whose fibres caused the disease, has been rejected time and time and time again by an approach which does not need to call in aid the English approach in Fairchild. It is suffice to note that in this country a cause, that is, a material contribution renders someone liable.

Now, a question arises as to whether, what I will call that March v Stramere approach, is any different from the Belgian sine qua known approach where you take out the posited culpable exposure and ask, would you be in any different position? Your Honours immediately see the problem. In many cumulative exposure cases, medically it would be impossible to say, well, without the James Hardie exposure, the Royal Australian Navy exposure would still be sufficient to have brought about this. Normally, in Australian cases that means both are materially contributing. Question, in Belgium, does it mean, as it were, if they are separately tried or even tried together they both get off?

Now, I think the answer to Justice Heydon’s question is, this has not been explored below. Justice Heydon asked for assurance and, with respect, for reasons which we are very concerned with, not an academic question, but a question about the wellbeing of my client and her children. The answer seems to be that no alarm is expressed in the Belgian expert’s evidence about what would appear to be a monstrously unjust anomaly emerging whereby more than one exposure can bring about the disease, then none of the exposures render anyone liable.

KIEFEL J: Mr Walker, it is not entirely clear from the expert’s declaration whether or not he has had regard to any specific Belgian code provisions or other provisions with respect to employment, and many of which might come from EC directives and any directives or matters dealing with asbestos or harmful products.

MR WALKER: Yes, though there is the familiar – I was about to say French, I will call it civilian proposition that rather than concurrent liability contract prevents delict; where there is contract there cannot be delict, and you will see that referred to in paragraph 10, because that does not trouble us, for once it being a holding company means we are not troubled by that. But, with respect, Justice Kiefel’s observation about what is not in the report is correct. I think those words in principle are intended to refer to uncited articles of the code. It is not judge-made law.

CRENNAN J: Of course, one practical problem in relation to the place of the tort being where the damage occurred is, I would be assume, medically would not be possible to tell whether the damage arose out of the Belgian exposure or the Malaysian exposure?

MR WALKER: Yes, and that is one of the many reasons why where damage occurs, we submit, however fascinating it may be for molecular medicine, is of no practical moment for our choice of law. We disavow damage as the legal concept whose location locates the wrong. I stress, in many cases such as the frank collision between car and pedestrian, it will be obvious that damage occurs at almost exactly the same time and certainly the same place as the wrong.

CRENNAN J: In terms of the locutions you have been using, we could talk about where the risk actually crystallises.

MR WALKER: Yes. Could I suggest, with respect, that the way this Court spoke in Pfeiffer provides support for what Justice Crennan appropriately calls my “locutions”. At [2000] HCA 36; 203 CLR 503 at 536, paragraph 75, picking up these words from the third line:

reliance on the legal order in force in the law area in which people act or –

an important word –

are exposed to risk of injury -

With great respect, there is prescience there as to the problems raised by locating, among other things, omissions. If you are exposed to risk in a place by somebody’s omission, in our submission, that is at the very heart, fundamental to the justification in this Court for our choice of law rule, lex loci delicti. So my answer to Justice Crennan’s question is yes.

Could I try to go back to Justice Heydon’s question concerning what might be regarded as the characterisation question of the nature of the claim, bearing in mind that it exists or not according to the choice of law. There first has to be something which may be posited perhaps to be a foreign tort in order for the inquiry as to choice of law to be made at all. That much was raised in this case by the ex facie allegations in the pleading and the particulars to which we have gone.

Next, if we be correct that the place of the wrong is where my client’s husband was exposed to the risk, then that is Belgium and Malaysia. May I note that I am saying Belgium and Malaysia, notwithstanding our materials occasionally use the barbarism “Belgium and/or Malaysia”. I cannot justify the alternatives except by a theory of the case which would be impossible ever to prove factually, namely that it was one but not the other where the fibres - - -

GUMMOW J: Is there an incidental question as to how Belgium, on one hand, and Malaysia on the other, treats multi-state torts?

MR WALKER: There is, your Honour. Now, that is like, in some regards, but is not the same as, a renvoi question. Alas the record in this case, your Honours are familiar with that, the same was true in Neilson, does not show evidence going into the private international law relevant to this case either of Belgium or Malaysia.

GUMMOW J: I suppose what I am asking is we do not know how they deal with the Fairchild problem?

MR WALKER: No, we do not. Precisely we do not.

GUMMOW J: Or if we have ever faced it.

MR WALKER: Yes. Both in answer to Justice Gummow and in response to Justice Heydon’s concern that I not appear to put an academic argument for real people with real problems, one thing we do know is that there is prospect under Malaysian and Belgium law that those opposed to us say there is no prospect, indeed, to the point that everything should be struck out under New Zealand law. Now, that is, for the reasons we have put in opening, not a matter for this Court, but as between the parties to this Court we are entitled to have very considerable fear that New Zealand will never be better for us than anything else. That is all I can say, I think, in completing my answer to Justice Heydon.

I am conscious I am really putting the whole of my argument in answer to Justice Keifel’s first question. Could I attempt to draw to attention some observations in the authorities, not binding for this argument, but, in our submission, highly evocative of a decision in our favour. I have already drawn to attention paragraph 75 of Pfeiffer, in our submission, a conclusion in our favour for the reasons we have put in our submissions would be wholly in accordance with that formulation. Could I also draw to attention what was put in Pfeiffer [2000] HCA 36; 203 CLR 503 at 538 and 539, paragraph 81? It is to be recalled this is the case that changed the law to lex loci delicti by abolishing double action ability. At this point in the court’s reasons there are preliminary, prefatory or some governing matters being noted:

Before turning to the question whether the common law choice of law rule should be the lex fori or lex loci delicti, it is necessary to recognise that the place of the tort may be ambiguous or diverse.

It is the last two words that we particularly draw to attention in this current context, “diverse” meaning plural and different. Now, we put this by way of an anticipation of an argument you have seen in writing against us. How absurd, it is submitted, that one could have a solution which could come up with Belgium and Malaysia. Now, one answer to that is, but by our law – that is the same law that devises these choice of law rules in a decision which recognises “the place of the tort may be diverse” – what is wrong with saying that wherever, to use our language, the defendant materially contributes to the plaintiff’s loss by breaching a standard applicable in the place where that material contribution is made? What is wrong, what is contrary to the expectations between the parties and of civilised conduct that the defendant be held to account by the laws of those places?

Now, it will not happen very often, but there will be different places, that is, diverse places of the tort, because it still remains the case that discrete actions tend to produce discrete consequences producing a legal dispute about compensation, for example. But in cases that have to be grappled with because they are medically and physically real of accumulating exposure to toxic substances, for example, where there is a continuing breach of duty over many years and perhaps over a number of different places and when one considers internationalised forms of labour hire, that will become more, not less frequent, one images, until we all have to stop flying, then, in our submission, the only question that arrises is, given that this Court in setting lex loci delicti considered that there may be diverse places of the wrong, why is it an objection that diverse selection of law might follow?

This does not show absurdity. This is precisely what this Court considered might arise in particular cases and then we ask, and what is so wrong about it in a case like the present?. After all, the worst thing that can be said against us, as if it were a sneer like forum shopping, is that we would get to pick the best remedy. In a choice between victims and wrongdoer, that is entirely satisfying as an outcome and it is in accordance with the common law approach in many instances of which Armory v Delamirie is but the most obvious.

HAYNE J: Why do we get into any of these problems in this stage of the litigation? The case against you, as I understood it at first instance and on appeal and here, is that the lex causae is sufficiently certainly New Zealand.

MR WALKER: Your Honour, one proper, with great respect, way of resolving this case at this point is to say that the court below erred in concluding that lex causae was New Zealand, either (a) at all or (b) with such a degree of confidence as to treat it as the factor which made sufficient that which would otherwise be insufficient for a stay.

HAYNE J: If that argument is right, there may then follow some particularly teasing questions about choice of law at some later point according to what is pleaded for a start.

MR WALKER: That is so, and also what we have actually manage to prove. We have yet to prove that we were exposed in Belgium. We have yet to prove we were exposed in Malaysia. If we were not exposed or exposed to a fibre which the doctors say, I cannot remember now, amosite rather than crocidolite - - -

FRENCH CJ: Chrysotile.

MR WALKER: Chrysotile. I am sorry, your Honours. If we fail at proof, then all the interesting law from Belgium will go out the window and that, in our submission, is exactly what one would expect in a case where there has got to be a stay decided. It is enough for us, in our submission, to succeed to point to the arguments which compellingly show that you cannot dismiss Belgium and Malaysia as lex causae. If that means that we have to prove both, then that is simply that which we have chosen forensically as a burden. It would not be the first that people prove more than they have to for choice of law because up until the final findings of fact it will not be known. That is true in contract cases as well, where there is an open choice to be made or a choice to be made by the Court as to the proper law of the contract.

In our submission, there is nothing in the arguments of policy or inconvenience relied upon by our opponents stemming from the fact that, if it is Belgium and Malaysia, then two systems of law may need to be proved as matters of fact. That will happen whenever there is a doubt about choice of law. Neither is there anything in policy or convenience based upon the fact that it is uncertain which will govern. It is quite certain what will govern after the Court has decided which is the law to determine the dispute and if the Court decides that by reason of material contribution in Malaysia or delict in Belgium that in both places a wrong was committed, then in terms of the singular outcome which is the deprivation during his lifetime of the living and the loss of amenity, the deprivation, by reason of his death, of the widow and children financially and otherwise, then, in our submission, there is nothing uncertain about, finally, as happens from time to time, the plaintiff electing.

Those are all matters that ought to be left to await trial. They are, at the moment, entirely hypothetical and it is a spectre which may be no more than a shadow for the respondent in this Court to raise the fact that there will be some kind of doctrinal embarrassment created if more than one system of law might govern the claim by my client against the respondent.

For practical reasons there may need to be proof in any event, if it was one or the other. We may be very rash not to prove both, so the fact that you have to prove both is not an objection and for what we would submit are moral reasons underlying the common law choice of law where there is an expectation, as this Court has said repeatedly, to be considered between the parties one starts with the proposition that the hypothesis we are addressing is that one is a wrongdoer and the other is a victim.

HAYNE J: But it also is an argument that proceeds from the premise that the default of the holding company occurred other than in New Zealand.

MR WALKER: That is right, yes, and that is because the role of managing Mr Puttick’s work did not cease when he stepped on the aeroplane. To the contrary, he was probably, as your Honours well know, probably working longer hours for them abroad than he would have at home in the nature of work trips. So, the control, the management, the direction, was every bit as complete abroad as it was in New Zealand. If they are to locate everything in New Zealand then they would need to explain how it is that he has to obey what they direct him to do when he is in Brussels or Kuala Lumpur.

GUMMOW J: I notice at page 561 there is some evidence – there are some questions raised by your instructing solicitors, and at 562. Where is the reply to that? Where is the reply to those questions? In other words, is there any indication of a debate as to whether the New Zealand statutory system applies to foreign torts?

MR WALKER: Yes, there was considerable debate - that is in the expert, Mr Miller, familiar from Putt, I think, gave some evidence.

GUMMOW J: Was this considered by the courts?

MR WALKER: No is the answer, but that debate did not inform the outcome in either court.

GUMMOW J: But the evidence was there.

MR WALKER: The evidence was there about – there was an issue, and there would be an issue as to just how badly off we are under New Zealand law.

GUMMOW J: Yes.

MR WALKER: That is why I have answered in response to Justice Heydon’s concern.

GUMMOW J: Justice Heydon points to page 549.

MR WALKER: One thing I should make clear – and this may cut across a deal of what your Honours have just raised – my client made a claim in New Zealand successfully.

GUMMOW J: Where do we see that?

MR WALKER: It is in an affidavit at 459, but I think it is also in the Court of Appeal, your Honours.

HEYDON J: Did you say 459?

CRENNAN J: Page 458, I think, paragraphs 13, 14.

MR WALKER: Page 458.

CRENNAN J: Mrs Puttick explains - - -

MR WALKER: Yes, why she was doing what she was doing. The story commences I suppose on the previous page, 457, about line 45 in paragraph 12. It continues on, as your Honours have seen, page 459 through to paragraph 17. Now, there is no argument of which I am aware in the record that that fact has anything to do with the viability of a claim under Belgium law or the viability of a claim under Malaysian law. The reference in the first instance judgment, I am sorry, is at 665, paragraph 12. It is not being used as a factor one way or the other in any of the reasoning of the courts below.

HEYDON J: This may reduce damages, but it is not said to be a res judicata.

MR WALKER: That is right, exactly. It would be, how shall I say, insult to injury if the administrative scheme was to create res judicata.

GUMMOW J: No, but it does look as if it puts paid to any argument that could have been made in New Zealand that there was a common law claim in New Zealand outside the statute. It seems to be an election to go under the statute.

MR WALKER: At least it puts paid to the argument that by reason of unavailability of a statutory benefit there is a common law claim in New Zealand. It seems to have been tried and tested and there is the availability of some statutory – now, your Honours, as we have tried to make clear in our - - -

HAYNE J: Do I understand the New Zealand steps as connected in any respect with the choice to sue the holding company rather than the employer, or is that a question I should not ask?

MR WALKER: No, your Honour should ask whatever your Honour is moved to ask. I cannot answer that. The affidavit does not supply any answer to that and it was not explored factually.

GUMMOW J: What entity was the respondent to be – is there a respondent to the New Zealand application?

MR WALKER: There was litigation, but it seems to have been what I will call administrative law litigation with the commission as the party. Just one answer to Justice Hayne. Your Honours may have seen – and we do not think it is otherwise material – reference to amalgamation or merger of the employer, Tasman, with another entity or entities which now or at various times in the past had Norwegian names. I hasten to say Norwegian names do not indicate why you would not sue them and there is a diagram which, to my eyes at least, is more opaque than clarifying of the corporate changes, but I do not think beyond that any answer is supplied to why the holding company.

FRENCH CJ: You make an application for compensation in New Zealand. That is against the statutory fund. Does it name any party as a respondent or do you just apply it?

MR WALKER: I do not know. You make an application of an administrative kind to a fund.

HAYNE J: On account of an employment-related injury?

MR WALKER: No, I think it is just on account of an injury. Employment is important, but it is injury.

FRENCH CJ: It will pick up motor vehicle injuries as well, will it?

MR WALKER: I think bungee-jumpers can get it, your Honour, but perhaps if they are not Australian - - -

HEYDON J: You can get it if you fall down the stairs, can you not?

MR WALKER: That is what I mean, yes. That was, I think, the whole point of the Woodhouse exercise. I think it was described in the expert evidence as 24-hour protection, 24-hour cover, meaning, I think, whatever you are doing and why ever you are doing it. Your Honours, in our written reply, we have tried to recognise that the case law that is considered in - - -

GUMMOW J: Wait a minute, Mr Walker, just look at page 664, paragraph 10. Is not what Justice Hayne put to correct:

benefits available from the New Zealand Accident compensation Commission (“ACC”) to New Zealanders who have suffered injury in (amongst other circumstances) the course of their employment.

So in one’s application one no doubt would state what the employment was?

MR WALKER: I honestly do not know, your Honour. I do not know whether employment is material. It would be an odd claim form that did not have to reveal - - -

GUMMOW J: Do we have the New Zealand Act? We could look at it.

MR WALKER: Yes, we have the New Zealand Act, your Honour.

CRENNAN J: We have Mr Miller at 359.

MR WALKER: Who I think repeatedly describes the New Zealand Act as suffering from what he calls unhappy drafting.

CRENNAN J: Yes.

HAYNE J: We also have the New Zealand expert at page 550 par 6 talking about bars.

MR WALKER: I am bound to say of the statute that it does not proceed in the most direct or straightforward way to say what benefits are available to designated people and on what grounds and how it may be dealt with. All of that material is contained within the statute. We have proceeded on the basis that as a scheme it is not a workers compensation scheme. It is an accident compensation scheme.

HAYNE J: The relevant bars include or perhaps are limited to those at pages 144 and 145 of the print of the Injury Prevention, Rehabilitation and Compensation Act 2001, sections 317 and 318, are they?

MR WALKER: Certainly 317, your Honour. I will just turn that up.

HAYNE J: Sections 317(1) and 318(2), I think.

MR WALKER: Yes.

HAYNE J: Are they engaged in this matter?

MR WALKER: That is the argument against us, your Honour. That is the reason for our sensible fear that if lex causae be New Zealand there is no negligence claim available. In short, it would be picked up by the Victorian statutes, both for survival of cause of action and for Lord Campbell’s Act. If New Zealand law were lex causae it would supply the answer not liable, whereby there would be a failure of the case.

Now, there is lurking in that matter the question which is not before this Court as to how one reads the:

No person may bring proceedings . . . in any court in New Zealand -

how that applies. It appears at least to be common ground that there is a very considerable prospect that that applies so as to require an Australian court applying New Zealand law to hold the respondent not liable in an Australian court, that is, picking up on Neilson, decide the case as the foreign court would decide the case.

Now, your Honours, the authorities that dominate the discussion in this Court, particularly in Voth, include most obviously Distillers, that is Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458. Before going to that case, it is proper to note about it and others that of course what it decided was not plain and simple the choice of law issue which is before this Court, let alone the location of the wrong for the purpose of lex loci delicti as lex causae, which is before this Court. There are a number of reasons for that, including that it predates Pfeiffer.

The other most obvious reason for that in relation to Distillers is what might be called a jurisdiction case using the expression “jurisdiction” to describe the power of a court system to render persons amenable to the power of adjudication by that court including, most obviously, the so-called long-arm or extended jurisdiction which requires certain connecting factors with the place of the forum. The reason why nonetheless Distillers is, in our submission, a most important authority for this Court to consider in evaluating the arguments we have offered about how to locate the respondent’s omissions falls out as follows. First, you will see in [1971] AC at page 463 one of the places where the relevant provision is set out is at letter D where the “Common Law Procedure Act of New South Wales” relevantly required attention for the purpose of jurisdiction to the question whether the plaintiff had against the appellants “a cause of action which arose within the jurisdiction”, a phrase which was neither naked of history nor of authority, cause of action not being understood in the way that one might understand it in the table of contents to Bullen and Leake and the word “arose” requiring further explication.

As their Lordships note at the foot of page 466, having referred to Jackson v Spittall and at the top of page 467 explaining the derivation of the relevant phrases, what was authoritative at the time of Distillers was this:

The conclusion was that the phrase “cause of action” in these sections did not mean the whole cause of action but meant “the act on the part of the defendant which gives the plaintiff his cause of complaint.”

A judicial dictum which has become, we submit, extremely influential in this area. We accept that the portmanteau phrase “the act on the part of the defendant which gives the plaintiff his cause of complaint” is not easily completely and for all present purposes equated to the Latin “delictum” or the English “wrong”, but it is certainly the closest that the cases offer and it has a lot to offer in that regard, after all, cause of complaint focuses on what might be called the legal claim and the resulting dispute which arises out of the wrongdoing and the act on the part of a defendant lending itself, as a matter of English in this legal context, to the notion of wrongdoing.

It is for those reasons that pace Chief Justice Spigelman in Frost there needs to be, in understanding what, if any, approach in principle ought to be promulgated by this Court to the location of a negligent omission, some attention to the question whether there is analogy to be seen between the approach taken by the Privy Council in Distillers and what is available on the facts of this case, not because - - -

GUMMOW J: I thought Distillers was very comprehensively discussed in Voth?

MR WALKER: It is. Why I have started with it is - - -

GUMMOW J: Why are we reading the rather simplistic, if I may say so, language of Distillers?

MR WALKER: Your Honour, of course, as I said in starting this part of my submission, it is by reason of its prominence in Voth that it is appropriate to look to it because – and it all depends on Voth, of course.

CRENNAN J: One point in it, of course, which is problematic for you or put against you, is the point at 468 at about point E, that:

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 -

which is rather contrary to the idea that you look at when the risk came home.

MR WALKER: No, if I may say so, for this reason, and may I try and comprehend another problem as well. In the next paragraph there are passages which we confidently expect will be relied upon against us as well. Why I say no is because putting together their Lordship’s reasons and their Lordship’s decision and understanding the former as explaining the latter, it is clear that in substance the cause of action was considered by their Lordships to arise, and they did not have doubt about it, in New South Wales.

Now, what does that mean in terms of the facts in question? New South Wales was not a place where Distillers sold anything to Ms Thompson’s mother. Distillers got the thalidomide from Germany, fabricated it in England or somewhere in Great Britain, made the decisions, corporate, scientific or otherwise, in Great Britain as to what was going to be said and what was not going to be said on the packages and information to be distributed with Distaval all over the world and sent by way of export, the Distaval thus packaged to a number of places, including, as it happens, New South Wales. In substance, their Lordships said, the cause of action for the injury in utero suffered by Ms Thompson arose in New South Wales and most definitely not in the only place where Distillers actually attended to and carried out the job of deciding what, if any, warnings to be put on Distaval concerning its use in pregnant women.

So that I answered no to Justice Crennan because far from being against us, when it is understood that the so-called substance test as been called produces, according to the Privy Council, without them regarding it as a borderline case, produces the place of exposure to risk, because that is where she was exposed to risk, the risk could have fallen in, as the hypothetical example shows, in South Africa if she had not actually taken a tablet, then - - -

CRENNAN J: It gets back to your failure to warn in Belgium and Malaysia.

GUMMOW J: I thought Distillers was very comprehensively discussed in Voth?

MR WALKER: It is. Why I have started with it is - - -

GUMMOW J: Why are we reading the rather simplistic, if I may say so, language of Distillers?

MR WALKER: Your Honour, of course, as I said in starting this part of my submission, it is by reason of its prominence in Voth that it is appropriate to look to it because – and it all depends on Voth, of course.

CRENNAN J: One point in it, of course, which is problematic for you or put against you, is the point at 468 at about point E, that:

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 -

which is rather contrary to the idea that you look at when the risk came home.

MR WALKER: No, if I may say so, for this reason, and may I try and comprehend another problem as well. In the next paragraph there are passages which we confidently expect will be relied upon against us as well. Why I say no is because putting together their Lordship’s reasons and their Lordship’s decision and understanding the former as explaining the latter, it is clear that in substance the cause of action was considered by their Lordships to arise, and they did not have doubt about it, in New South Wales.

Now, what does that mean in terms of the facts in question? New South Wales was not a place where Distillers sold anything to Ms Thompson’s mother. Distillers got the thalidomide from Germany, fabricated it in England or somewhere in Great Britain, made the decisions, corporate, scientific or otherwise, in Great Britain as to what was going to be said and what was not going to be said on the packages and information to be distributed with Distaval all over the world and sent by way of export, the Distaval thus packaged to a number of places, including, as it happens, New South Wales. In substance, their Lordships said, the cause of action for the injury in utero suffered by Ms Thompson arose in New South Wales and most definitely not in the only place where Distillers actually attended to and carried out the job of deciding what, if any, warnings to be put on Distaval concerning its use in pregnant women.

So that I answered no to Justice Crennan because far from being against us, when it is understood that the so-called substance test as been called produces, according to the Privy Council, without them regarding it as a borderline case, produces the place of exposure to risk, because that is where she was exposed to risk, the risk could have fallen in, as the hypothetical example shows, in South Africa if she had not actually taken a tablet, then - - -

CRENNAN J: It gets back to your failure to warn in Belgium and Malaysia.

MR WALKER: Yes, and in our submission, in the failure to warn - but let me put it this way, the failure in Great Britain to do those things which would have brought home a warning in New South Wales meant that, in substance, the cause of action arose - that is the act on the part of the defendant giving rise to the plaintiff’s cause of complaint occurred in New South Wales and that notwithstanding with no corporate presence in New South Wales and in terms of human conduct - that is people actually doing things – it occurred in Great Britain.

Now, it is for those reasons, in our submission, that Distillers is an extremely powerful decision in our favour, if there be any room for what has been called against us “factual analogy”. But this is not mere factual analogy and it is not treating the finding of facts in Distillers or the application to them of the test as precedential, in any slavish fashion. It is seeking to understand as a matter of principle how a test expressed at the utmost level of generality, namely the “in substance” test – is to be applied to facts of a common kind in international commerce, including commerce of a kind that gives rise to “snail in a bottle” problems of liability. The question was, it is not where you let the snail get into the bottle, it is where the person suffers from its presence in the beverage; not by way of damage, but because that is where you are exposed to the risk.

Now, it is for those reasons, in our submission, that one has to be cautious about understanding what is meant by consequences as being those things which may be merely fortuitous, and the place of which will therefore not necessarily or at all supply the place of the wrong. It is for those reasons that I have started with Distillers because one does not find place of the wrong, one does not find locus delicti as being the object of what their Lordships were opining about, but one does find by the two steps I have talked about, namely the New South Wales rule understood by reason of Jackson v Spittall to mean the act on the part of the defendant which gives the plaintiff his cause of complaint, producing the location of that act – I stress that act – on the part of the defendant as being not where it conducted itself in terms of positive manoeuvres in Great Britain, but where by way of what might be called a bilateral approach, their conduct intersected with the plaintiff’s mother where the plaintiff’s interest in her safety or lack of malformation was infringed.

Now, that was contrasted by their Lordships with what might be the purely fortuitous place where the tablet happened to be ingested. Because it was a failure to warn it was, in substance, the failure to warn at the point where you needed to get it, namely receiving the drug to be taken, rather than, as it were, the entirely unrealistic proposition that someone would tap you on your shoulder in your bathroom at night before you take a tablet. The proper place for the warning was at the point of commercialisation of a dangerous drug. That took place in New South Wales. That was where, in substance, the cause of action arose, even if there had been no ingestion of the drug in New South Wales.

GUMMOW J: This expression of “where in substance the cause of action” has the usual ambiguities of form and substance debates in law and in the end is evaluative in some undisclosed way, is it not?

MR WALKER: Yes. I do not mean this rudely, but there are a lot of words in this document to produce the answer to the question, how do you know where the cause of action arose? Answer, it is where it arose in substance. Now, that is valuable if it does, as it did do, expel the notion that you look to cause of action in a technical sense required for a pleading, not least because in negligence it does away with what has been called the fortuity or fortuitousness of the cause of action not being completed until the damage is suffered, which in many cases, including those which are not physical injury, could be a place utterly removed from where the parties have conducted themselves vis-à-vis each other.

Now, in our submission, it is for those reasons that, noting the great generality of the test where in substance did it go, noting that that might give rise to or does give rise to evaluative questions, in a search for principle rather than simply an acceptance of what might be called - - -

GUMMOW J: I am just wondering how you make the evaluation, that is all. What is the criteria? I am hoping for a clue. I do not think I will get one. That may be why in the British legislation of 1995 in section 11 they have used another term “significant”, but that is at least a choice of law provision.

MR WALKER: Yes. Now, a clue, if I can offer a clue to the evaluation that was carried out in that case, as we have suggested in our written reply, might come from, I think I am bound to say, the recitation – I cannot say adoption exactly – of Mr Justice Holmes’ approach in the Court of Appeal. You will see that set out by their Lordships at page 465 between F and H. I will not read it but I need to draw to your Honours’ attention that it ends up with the two words “last act”. The passage in Mr Justice Holmes’ reasoning, which is then continued to be quoted on page 466, concludes at letter B with a very emphatic and confident determination which, with respect, appears to be the Privy Council’s approach when one goes to page 469 between letters B and C. “In the present case”, their Lordships conclude, having got rid of defective or incorrectly manufactured, “The negligence was in failure to give a warning” – I insert, an omission in Voth terms – “that goods would be dangerous”, et cetera. Then a very important passage that we rely upon if factual analogy be appropriate in order to understand a principled way of carrying out this evaluation. We submit, of course, one should try to look for a principle rather than simply accept that every case will be produce what might be called a wilderness of single instances, leaving only this question of where in substance did the cause of action arise?

What one has here is their Lordships saying that warning might have been given by putting a warning notice on each package as it was made up in England, what might be called “first opportunity”. It could also have been given and then they talk about things that could be done in New South Wales and we know that in commerce, particularly to do with regulated or dangerous substances, that is a very common thing, communication to the potential market after you have released something onto it. Then, their Lordships say:

The plaintiff is entitled to complain of the lack of such communication –

In other words, you did not put it up in England and you did not tell anyone relevant here in New South Wales –

as negligence by the defendant in New South Wales –

I think that is the conclusion, rather than a step in the reasoning, but in our submission it is a satisfying one, because it points to the practical availability of the warning at the place where otherwise one would be exposed to risk. Then their Lordships revert to the critical word, between D and E:

That is the act –

I stress the word “act” -

(which must include omission) on the part of the English company which has given the plaintiff a cause of complaint in law.

Then they revert to the wording of the rule for the jurisdiction -

The cause of action arose –

within it. Now, as Justice Gummow has, with respect, correctly admonished me, that does not matter except to the extent that it is informative of this Court’s approach in Voth [1990] HCA 55; 171 CLR 538, to which I now turn, if I may. At 568 at the foot of the page, their Honours characterised the claim. It:

may properly be described either as a failure to advise (i.e., an omission) or as a negligent misstatement of fact, (i.e., a positive act).

This had to do, as your Honours will recall, accounting advice was sought and given at a discrete occasion as to, among other things, US revenue implications, which happened to include, not disclosed by the accountant, withholding tax.

Strictly, the complaint is one of the negligent omission, namely, failure to do various things, including failure to draw the attention of M.M.C. –

that is the Kansas subsidiary –

and the members of the Manildra Group (including the respondents) –

That happened in Missouri, that failure to draw attention –

to the requirement to pay withholding tax . . . The act of providing accountancy services was an act complete in itself, or, if not complete in itself, one that was initiated and completed in the one place.

We interpolate that is of course a complete contrast on the facts with the position perceived by the Privy Council in Distillers where the fact that the deficient warning was no doubt initiated in England, but it certainly was not completed. The plaintiff’s mother was not asking for advice from Distillers, she was owed a duty to get a warning from Distillers, but here they had been an asking of advice from accountants. They had, as it were, put their best foot forward and stumbled. That happened “That place was Missouri.”

Now, the significance is that there were then consequences of that wrongdoing in a number of different places. They included consequences in the United States because the respondents became, by dint of certain provisions, responsible for penalty tax. There was also financial consequences in Australia by reason of what I will call double-tax provisions as they were worked in Australia. So there were consequences financially in different jurisdictions by reason of what I will call flow-on or kick-on effects on revenue and taxation consequences.

What Voth reveals, in our submission, is that paying regard to the proper characterisation of the case where the wrong is an omission to warn of something, or to advise of something that needed to be done in order to avoid penalty tax in this case, then it is the place where the relevant interest, which for the respondents was in their financial efficiency pay as little as necessary to revenue authorities, where that was infringed was, where they received the advice which in due course as a matter of mere consequence would have an effect in other jurisdictions.

HAYNE J: Is that right, Mr Walker? That seems to stand on its head the joinder of argument revealed at 542. If you go to 542 in the argument of Mr MacFarlan at about lines 5 or 6, the contention was the acts which give rise or “the giving of advice” and “the omission to give advice”, “tort was in substance committed there”, that seems to be the argument which the Court adopts. Rejecting the argument of Mr Jackson – see at about point 7 of the page, just after the reference to “Distillers”, “The tort of negligent misrepresentation is committed - - -

MR WALKER: Yes, “transmitted to Australia and have repercussions” there.

HAYNE J: - - - “where the representation is received and acted on”. Is the Court not saying, or the majority plurality, not saying at 568 and 569 that it is where the advice was given?

MR WALKER: Yes, but I am sorry, your Honour, I have obviously mis-spoken because we are urging that. I might try to explain in this way. Mr MacFarlan’s argument said that advice was given in Kansas City, a discrete, or as their Honours call it, a completed exercise, and the fact that consequences in due course were suffered in places in the United States and in Australia – and one might add, anywhere else that financial consequences might have followed – did not alter the place of the wrong, being Missouri.

Mr Jackson tried to fit this case into a construct whereby, contrary to the facts as one sees at 568 and 569, it was, as it were, only the Australian revenue implications that mattered. Now, we know from the facts that is not right. The principal interest and the principal cause of the losses was that he got the tax implications of the US system wrong; withholding tax that had to be paid in the States. Now, that had indirectly a flow-on effect by reason of too much tax having been paid in Australia, but it was not - - -

HAYNE J: For my own part, I had read it as much more simple than that, Mr Walker. Where the advice was given or where the advice was received was the choice and the choice made was where the advice was given.

MR WALKER: But it was actually received and given in the same place is my point, your Honour. Mr Jackson was trying to say it was acted on in Australia. Well, so it was. It was acted on, no doubt, all over the world where they had financial dealings that turned on the tax consequences of the structures in the United States:

it would be transmitted to Australia and have repercussions here -

said Mr Jackson at 542, point 7. That of course is just the mere consequence that does not locate the wrong. We embrace, we positively assert that what Voth held was it was the place where the advice was given and it was not given to Australia, it was given to people in the United States. It was given in Missouri.

GUMMOW J: Both Mr Jackson and Mr MacFarlan seem to be confident they knew what the substance was they were foraging for.

MR WALKER: Yes.

HAYNE J: Yes, and this was being grappled with.

MR WALKER: Now, how do I use that? One goes back, then, to the famous passage which is to be found on page 567 in Voth, commencing an inch down:

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”.

Then there is a reference to the chain of sales which determined that matter in the Cyanamid Case. Then Distillers is picked up two paragraphs down:

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 –

hence the continued relevance of Distillers and Jackson v Spittall –

namely, the place of “the act on the part of the defendant which gives the plaintiff his cause of complaint”.

That is how authoritatively for ascertaining the place of the tort for the purpose of a stay in Voth in our submission the approach taken in Distillers should provide guidance, in principle.

GUMMOW J: Is there some clue to what the substance is to be found in consideration of John Pfeiffer of what it is that moves the adoption of choice of law rules in our legal system?

MR WALKER: Yes, but I doubt whether I can persuade your Honours that it is clear and straightforward or decisive. In a word, it is geography, as your Honours will recall that expression used in paragraph 84 in Pfeiffer and that involves the notion of the reasonable expectation that the consequence of what I have to call “conduct” is governed by where it occurs but that will not answer the question straightforwardly of how do you locate omissions.

We say that the answer is conveyed by the phrase in paragraph 75 of Pfeiffer, “where people act or are exposed to risk” recognising that one can be exposed to risk by a failure of relevant people to act, that is an omission and where you should act is in law, given the obviously normative content of a duty of care, for example, where you should act ought to be treated as the place of the omission, assuming significance for the plaintiff. It assumes significance because the failure to act there leads to the cause of complaint.

In our submission, what is said in the next paragraph has been wrongly understood in the argument against us. That is the paragraph at 171 CLR 567 at the foot of the page:

One thing that is clear from Jackson v Spittall –

et cetera, and the distinction between -

some act of the defendant, and not its consequences, that must be the focus of attention.

It is for those reasons that their Honours point to what their Lordships said 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 is one that might have been quite fortuitous. That is, the facts might put them all in the same place and more or less at the same time. It might separate them as the hypothetical holiday to South Africa showed in Distillers. And, as they were holding here, as the various acts of reliance on the careless accountant’s advice in Missouri were played out in different jurisdictions, including in Australia, that was a consequence. It was not, as Mr Jackson had tried to argue, the place where the advice was, as it were, projected. The advice was simply given in Missouri.

As it were, the meeting breaks up and they go and act on it in various times and various places in different ways. Those are consequences. They are the equivalent of South Africa ingestion of Distaval. We are not arguing to locate these wrongs by any such consequence at all. That is an error in the argument against us. We are not saying that we acted on the failure of warning in some place that has nothing to do with where the risk was created, where we were exposed to risk and where the omission occurred, that is, where the acts required by the duty should have taken place.

In particular, we are not now saying that there is any choice of law available in terms of lex loci delicti for Victoria because that is where mesothelioma was first suffered. That is truly a place of consequence which is, if I can use this word in that ghastly context, quite fortuitous. It happened in this case to turn upon a decision to migrate.

Then the next paragraph which, in our submission, needs attention in Voth is important because there this notion of an act being a legal concept for the purpose of locating a wrong is described by their Honours as in some cases passing across space or time before it is completed. Then there are the familiar remote communication cases. One also has the reference to defamation, then negligent misstatement in the paragraph commencing with the reference to The “Albaforth” and finally, the paragraph on 568 commencing:

If a statement is directed from one place to another –

was obviously intended to pick up and deal with, ultimately by rejecting on the facts of this case, Mr Jackson’s argument to which Justice Hayne has drawn attention. The end of that paragraph is:

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.

Then the passage with which I started. I have already suggested that one needs to be cautious before proposing too much from the tort of defamation in relation to the tort of negligence for locating the wrong. However, as your Honours have seen, this Court has called in aid in argument in that very passage to which I just referred in Voth and so with some diffidence we would call in aid the reference in Gutnick 210 CLR 575, paragraph 26, to this notion of a bilateral act which your Honours may find of some assistance where the case involves something that should have but was not the subject of information passing from one person to another.

Just as in Gutnick, all the conduct in human terms was in New Jersey, but the act was plainly, probably simultaneously, in a number of different places around the world but, relevantly, Victoria. So, in our submission, where the omission is to provide information before you inhale the atmosphere in a contaminated factory, it is the bilateral act which should have happened, but did not happen and, in our submission, that adds as a matter of what I will call “substance” to the location in a case such as the present by analogy with the failure to warn of dangerous substances in Distillers at being the point of sale; it is at the point of exposure to risk in the case of a warning about dangerous premises or dangerous occupational conduct.

HAYNE J: Might I take you back to Pfeiffer and to this question of essence, distillation, whatever metaphor is used. If you go to Pfeiffer at page 538, paragraph 78, plurality reasons reject reference to most significant connections for the reasons there articulated. That may be contrasted with what is said at paragraph 75, page 536 about “reliance on the legal order in force in the law area in which people act or are exposed to risk” giving rise to expectations to be protected.

MR WALKER: We would not see any tension between those two paragraphs.

HAYNE J: On the contrary, indeed. Is it open to look at the facts in the present matter as revealed in the pleading in a way which identifies the legal order, or that aspect of the legal order which chiefly regulated the relevant relationship between the holding company, Tenon, and an employee of the subsidiary as being the legal order regulating the control by Tenon over the intermediate company, the employer, and thus over the employee?

MR WALKER: No.

HAYNE J: Because if that were so, the relevant legal order would likely be New Zealand. Is it a necessary step in your argument to identify the place of performance of the duties of the employee as implicating in a relevant way the legal order of that place of performance?

MR WALKER: Yes, it is.

HAYNE J: And there is the debate in the case, is it not?

MR WALKER: Yes. So “safe system of work” has a meaning in a number of different places for an employee; that is everywhere where he or she works.

HAYNE J: But of course here we are not concerned with safe system of work for an employee save in the special sense - - -

MR WALKER: Quite. It is the facts pleaded - - -

HAYNE J: - - - that we have this holding company - - -

MR WALKER: Yes, who directly controls - - -

HAYNE J: Yes, I understand that. But you inject this holding company over the top.

MR WALKER: This is nothing to do with processes in Auckland involving as it were the constant or immanent threat that if the subsidiary does not do what the holding company does there will be an extraordinary general meeting and the board will be booted out.

HAYNE J: Nor is this anything to do with an employment relationship because there was none between these parties.

MR WALKER: No. Instead it has to do with the reality that somebody’s welfare was in the hands of and being looked after by the officers of the holding company. That is what this case is about. Just as that can happen with people who are subcontractors rather than employees so that can happen, according to the facts of a particular case – see CSR v Wren, the cases we have referred to in our written submission – so that can happen if the facts so fall out between one corporation and an individual, notwithstanding that another corporation is the true employer.

This is nothing to do with sham. We do not need to use expressions like “de facto”, though I have been guilty of using “quasi” today. That is more accurate for the notion that we are putting – “quasi” because the content of the duty that we allege does resemble materially the duty which would be imposed on a true employer.

GUMMOW J: You might look at this over lunchtime. Section 28 of the New Zealand Act talks about work-related personal injuries, which I think would have been the footing here. That turns on notions of employment and then definitions of “employment”, “employer” and “employee”. But this action in tort is framed quite differently.

MR WALKER: Yes.

GUMMOW J: Your opponent might think about this. Your opponent’s endeavours to engage notions of drowning choice of law rules in tort in those of contract would not seem to be engaged.

MR WALKER: That is right, not in this case. No doubt there will be an issue arise one day, but not this case. Your Honours, before departing from Gutnick, could I note some passages at page 606 to try to adapt that approach to the different tort. In paragraph 42 there is a reference to:

defamation’s concern with reputation –

Well, we submit that relevantly negligence’s concern is with health and safety. Then in paragraph 43 there is repetition of the difficulties posed in the case of omission after citation, amongst others, of Distillers and Voth. Then in the last sentence:

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.

Now, it was not necessary in that case, of course, but the notion conveyed by the simple English of “where the defendant acted” must be understood, given that the paragraph commences with Distillers v Thompson and Voth, to involve this notion of an act occurring in a place where, to go back to Pfeiffer, a person would otherwise be exposed to risk where an omission, to use Voth, assumes significance for the plaintiff.

It is important to note that the footnote to 567 of Voth, footnote (133) to paragraph 43 in Gutnick, tells one how one should understand this notion of consequences which are either not relevant or not guiding in locating the place of the wrong. They do not include the place where, they do not include the circumstances which mean that the act assumes significance, because the circumstances that mean the act assumes “significance”, to use the Voth phrase, are those which actually locate that act for the purposes of choice of law.

Your Honours, could I conclude by briefly highlighting some matters of criticism we make of the Court of Appeal majority reasoning. At page 756 of volume 2 of the appeal book in paragraph 14, line 40, the Chief Justice says:

The plaintiff does not assert (nor should she) that the defendant’s negligent act or omission occurred at any of the factories overseas where the plaintiff was sent.

We have said enough in address and set out enough in writing to apprise your Honours of why we submit, with respect, that that is simply 180 degrees wrong. At page 760, paragraph 19, about line 12 or so:

the omission is considered to have satisfied these tests where that thing which was not done (ie omitted) should have, in fact, been carried out.

With great respect, yes, that is an appropriate approach. For the reasons we have put, if there were an unfortunate requirement to choose between first and last opportunity, well, last is it, but much better to say that it is the place where one would be exposed to the risk by reason of the omission that supplies the place of the omission, notwithstanding that there were other places, as there were in Distillers, that the warning might have been conveyed or matters done in order to safeguard the plaintiff.

Page 760, paragraph 20, just above line 40. Although, for the reasons we have put by analogy with Distillers it might have been done in New Zealand, it is not the case that it could not be done or should not be done in Belgium or Malaysia, but that appears to be what her Honour is conveying by the expression “not Belgium nor Malaysia” at about line 40.

Page 761, still in paragraph 20, at about line 12, with respect, we were focusing on damage, although one way of looking at an asbestos injury is that the damage occurs upon first ingestion. Your Honours are well aware there are other ways of looking at asbestos injuries. You do not get mesothelioma unless you get you get mesothelioma and not everybody, thank goodness, who inhales asbestos fibres and retains them gets mesothelioma. But we were not focusing upon the damage caused, after all, one perfectly proper way of characterising when and where the damage was caused was in Melbourne.

Page 763, paragraph 26, about line 18; we hope we have not fixated upon the factual matrix in the New South Wales cases upon which we have put our argument in writing. With respect, although Chief Justice Spigelman in Frost said that factual analogies may not be helpful, understanding a decision so as to discern and apply an approach or principle of law from it always requires, in our submission, an understanding of the facts and especially appreciating the way in which the decision is thereby demonstrated to follow, according to the judicial reasoning. Hence for those reasons, in our submission, that the very clear demonstration of judicial approach in the three New South Wales Court of Appeal decisions upon which we rely favour us and do not show us fixating inappropriately upon the factual matrix of those cases.

In paragraph 26, furthermore, at about line 25, her Honour approves or agrees with the New South Wales Court of Appeal approach which she summarised as being:

the place of the tort is the place ‘where the warning should have operated to protect the plaintiff’ –

that is coming from the case I called “Putt” –

or ‘where the system of work should have been safe.’

Quite so, with great respect. Then her Honour says, in our submission, without explanation:

In this case, that place is New Zealand.

There was no relevant asbestos in New Zealand. There was no place of work in New Zealand where the risk presented itself to which my client’s late husband was exposed.

At page 765, paragraph 31, it is a straw man, with respect, in the first sentence, line 25, to require us to show “that the respondent should have been present in Belgium or Malaysia”. It depends what you mean by being present. You can, as is well known, act vicariously. You can have others act for you. No doubt, if you are going to investigate these factories you would have retained a Belgian or Malaysian contractor to do so.

FRENCH CJ: You did not put that proposition below?

MR WALKER: We did not put the proposition it is a straw man. Just after line 30 on page 765, it is for that reason that locating the wrongful act, first in time and therefore in place in New Zealand, is an error in her Honour’s reasoning. Your Honours see the expression “but before that time” in line 31. That raises a particular conundrum with continuing duties which have not been fulfilled. Why is it that one says the duty continues but that an act in breach of it has once and for all been committed previously and in another place. To put it another way, it is not too late for a warning to have been given from or in another place. The reasoning at the foot of 31 is, in our submission, fallacious for the reasons we have already put.

Your Honours, I hope this will not be considered overly pedantic, in footnote 65 on page 766, although it, with respect, probably does not lessen whatever force her Honours’ observation about the treatment of Putt in Frost may have, in fact Putt is referred to not only in those paragraphs but also in paragraphs [24] and [26], and [60] to [63], the latter bracket in a slightly different context. There is no suggestion in New South Wales that there is any perceived difference of approach or principle among any of the three cases and Chief Justice Spigelman certainly did not write in that fashion.

Your Honours have seen in writing that we, with respect, adopt the understanding of the New South Wales authorities taken by the learned President below. May I then deal with the way in which Justice Chernov approached the question? At page 790, in paragraph 98, it was a false issue for his Honour to have been concerned with what he calls the place of contracting the disease. I stress mesothelioma is not at all the same, thank goodness, as an inhalation of asbestos. We do not say that he had or got mesothelioma in either of those places. It is not to the point that:

The result would be the same, I think, if the disease was contracted on the moon -

that is, one of the fortuitous places of the location of the consequence.

The “cause for complaint” is exposure to something which, looking back as everyone in a court does when somebody has a claim, can be seen to have been an exposure materially contributing, that is, to be a cause of the fatal outcome. The notion that the “conduct first assumed significance in New Zealand” used by his Honour at about line 25 on page 790 is unexplained and, in our submission, inexplicable. It did not have any significance unless and until he went to premises where he inhaled fibres.

HEYDON J: This is just a repeated making of an assumption without ever any demonstration of why it is so. This has happened about eight times in passages you have taken us to. I am criticising the judges below, not you, of course.

MR WALKER: Yes. There is, with respect, no reason supplied here. In paragraph 99 the dealing with the New South Wales authorities is, in our submission, quite unaccountable. It would appear, with great respect to his Honour, that there is the fallacy being committed of precedential effect being given to a finding of fact. It is true that in those cases New Zealand, which as your Honours appreciate, has real importance in these disputes precisely because of its scheme and the preclusive effect. New Zealand happen to be, in each of those places, the place of the wrong.

It would appear, with respect to his Honour, that in paragraph 99 he reasons, well, if it is New Zealand in those cases, it is New Zealand in this case, but reasoning by factual analogy cannot be abandoned and must not be abandoned. The equivalent of New Zealand in those cases was Belgium and Malaysia in this case and it is the search for equivalent which we submit is the proper approach to a proper form of factual analogy, not treating findings of fact as precedential but as treating decision and the reasoning for it as an indication of the proper judicial approach to be followed.

HEYDON J: The statement “here it is alleged that the deceased was not provided with the necessary instructions in New Zealand” is incorrect, is it not?

MR WALKER: That is right. Again, I am repeating myself, that is not to say a thorough going briefing in New Zealand may not have fulfilled the duty. That is not the point. We did not say it was all over. Our cause for complaint arose by reason of what was not done in New Zealand.

GUMMOW J: But do you adopt the reasoning of the President?

MR WALKER: I do, your Honour.

GUMMOW J: Or do you depart from it in any way or do you supplement it?

MR WALKER: I hope or think we have supplemented it, but we do not depart from it. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. Dr Bell, we might hear from you after lunch. We will adjourn until 2.15.

AT 12.40 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Dr Bell.

MR BELL: May it please the Court. With a view to answering some of Justice Heydon’s questions from this morning and some of Justice Gummow’s questions from this morning, what I first propose to do is to identify the three different contexts in which this question of locating a tort arises, because that identification I think – I hope – assists in providing an answer to those questions.

What I next want to do is to endeavour to provide some assistance in your Honour Justice Gummow’s plea for a clue as to how to work out where, in substance, does the cause of action arise and I will seek to identify five factors or five matters which emerge from the case law, which provide some help in that regard. Then I will move on to the structure of the argument.

But the three different contexts – this was briefly touched upon this morning, but only briefly in which this question of locating a tort arises - are as follows. The first is the service out and the Rules of Court dating back to the Common Law Procedure Act. Now Distillers was such a case and the case in the Supreme Court of Canada Moran v Pyle was such a case, for example. We do not have many recent Australian examples of that and there are really two reasons for that. We had cases under the Service and Execution of Process Act 1901 where there was a parallel style regime, but after the 1992 Act one does not get involved in those sorts of jurisdictional questions within Australia.

Secondly, there has been amendment in the Rules of Court in most of the Australian jurisdictions so that in tort cases – there is a head of jurisdiction where damages suffered within the jurisdiction or a tort wherever occurring. So it has ceased to become generally necessary in tort cases at least to identify this question of service out. That is the first context. As Mr Walker correctly said, the Court in Voth and Gutnick borrowed from the cases in that context, say Distillers and George Monro, Cordova and Jackson v Spittall – borrowed those cases and used them, deployed them, in a choice of law exercise rather than a jurisdictional exercise.

The second context is this. It arises – and this case is an illustration – in the context of a stay application where, by reference to Voth we are told – and Voth in this context does pick up Spiliada because it identifies the connecting factors identified by Lord Goff in Spiliada, governing law being one of the most important. In a stay application we are directed to ascertain the governing law as a matter which is particularly relevant to determining the stay application in Australia by reference to the Voth test and in England by reference to the Spiliada test.

In that context – and this answers I think your Honour Justice Gummow’s observation that none of this is pleaded – when it arises in a stay context, because of the Rules of Court stay applications, at least in trans-national cases, typically have to be brought, either as a matter of the Rules of Court and/or as a matter of tactic, namely because otherwise one runs the risk of being seen to have waived an objection to the suitability of the forum or acquiesced in the assertion of jurisdiction, they have to be brought at a very early stage of the litigation. That is driven by the Rules of Court.

We have provided your Honours – I do not think one needs to go to the detail - with the relevant rules of the Supreme Court of Victoria which dictated that the summons – and it was a summons rather than no summations – summons for a stay had to be filed within a certain number of days of service, et cetera, prior to any obligation to file a defence.

So in the second context with which we are concerned and with which Voth was concerned and with which Zhang was concerned, one is looking at the matter without a defence at least. But, nonetheless, we are directed to address the question of identifying the tort. That has some ramifications, in my submission, or will have some ramifications for the way in which the Court approaches the task.

The third context, and I hope this answers your Honour Justice Heydon’s observation, is in those cases, whether or not a challenge to jurisdiction has occurred, whether or not a stay application has occurred, but those cases which go to trial and where there is an issue on the pleadings as it then will be on the pleadings as to foreign law and it might be a disputed question. So in a fully-blown trial one might have a question and the point will be taken where it is perceived by the legal advisers that it matters in terms of some substantive outcome either as to liability or damages or mode of relief.

In that third context, one will have pleaded foreign law - that pleading might be disputed - and the question of the place of the tort will be determined by reference not only to the pleadings, but more particularly to the facts as they emerge in the trial.

Can I give your Honours examples of two cases which illustrate that third category? Both are from the English Court of Appeal, but Metall Und Rohstoff [1990] 1 QB 391, and more recently Base Metal v Shamurin [2004] EWCA Civ 1316; [2005] 1 WLR 1157, in those cases, the torts in question, conspiracy inducing breach of contract in Metall und Rohstoff and in Base Metal alleged negligence and alleged breach of equitable duty of care owed by company directors.

Now, we are in this case in category two, so the Court has more limited material at its disposal to answer the question posed than it would have in a category three case. What it has is the statement of claim. What it also has, and we know from Voth and Spiliada it is permitted to have, such evidence as the parties choose to put before the Court on the interlocutory stay application, so for example had the plaintiff had the evidence, your Honour, going to the point your Honour Justice Heydon raised about whether - - -

HEYDON J: The detail of the trips.

MR BELL: . . . the detail of the trips, whether he was accompanied by a more senior manager, et cetera, it was open to the plaintiff to lead that style of evidence on the stay application with a view to anticipating the arguments as to location of the tort - equally open to my client, my client did lead some relevant evidence on the stay application. That evidence obviously also goes to the discretionary considerations, but can go, in my submission, and I think on the authorities preventing it going to the question of locating the tort.

So that is the broad context and there are statements in the cases about the need to remember what context one is in when one is applying the tests. As far as your Honour Justice Gummow’s question about where do we get a clue, we have given this test where “in substance” did arise, but how do we work out what that means or what does it mean to approach the matter in a commonsense way, “commonsense” is another phrase used in Voth. Voth says a commonsense in substance approach.

The cases, I think, indicate five relevant matters and their value depends or differs. The first one is to look at the pleading, the statement of claim, but the cases do say this that when looking at the pleading one is – and I suppose this is really a corollary of looking at it as a matter of commonsense - one is to look at it with a slight scepticism about artificiality or ingenious pleading. There are cases where – the International Rugby Board Case was one. Justice Callinan made an observation about that. It was said that the negligence occurred in New South Wales. It was an alleged failure to make rules.

GUMMOW J: Agar v Hyde.

MR BELL: Agar v Hyde. In an international Rugby Board meeting in either Paris or London, but one of the parties, and the New South Wales Court of Appeal said that tort occurred in New South Wales. It was not otherwise relevant in that case, but an example of artificial pleading, and I will be submitting that there are elements of artificiality to the pleading in this case, and I will seek to develop that, and I will also seek to develop the looking at the matter as a matter of commonsense, which is really the corollary of artificiality. As a matter of commonsense the Court can in the case two context, the stay context, come with a commonsense view that this cause of action is a New Zealand cause of action. It occurred in New Zealand.

Can I simply give your Honours this reference to the cases which talk about artificiality, the need to guard against ingenious pleading, et cetera. They are gathered in paragraph 28 of our written submissions. I am slightly diffident about this submission, it may not advance matters much further, but one sees phrases being employed by the judges, such as “in reality”, “in truth”, “the true nature” which probably are just synonyms for looking at the matter in a commonsense and substantial way rather than breaking down that general test into a more detailed or coherent - - -

CRENNAN J: Practicality is another way of coming at it, I suppose.

MR BELL: Practicality, yes. Chief Justice Spigelman in the Frost Case relied on by our learned friends observed, and correctly so in personal injury cases, one is generally confronted with what his Honour described as a smorgasbord of particulars and I will be going to that smorgasbord in a moment.

HEYDON J: I have just lost the drift of five matters you mentioned of which the first was the pleadings.

MR BELL: I am sorry, yes. Your Honour, the first one is the pleadings. I will list them and I will come back to them in detail.

HEYDON J: Yes.

MR BELL: The second one is such evidence as is tendered on the stay application bearing on the question of the location. That material can be used to assist the Court in answering the question. The third matter is, to pick up I think something Justice Hayne I took was alluding to, context and “context” is a word which is used in Voth at 567 at about point 3 of the page and the context in this case is the employment or the quasi employment context.

I think your Honour Justice Hayne used the expression “the legal order of the relationship” and we will be developing a submission briefly that at least in some of the civilian countries where you have a tort claim which could be characterised as a contract claim, and I accept the observation your Honour Justice Gummow made about that, but where one has a concurrent claim which could be characterised as tortious or characterised as contractual, in a sense one will follow the contract. That is borne out by that reference in paragraph 10 of the Belgium law expert’s evidence in Belgium where you have a tort claim, but in the context of a contractual relationship the tort claim is barred. One is driven to the contract.

That is why there is a time bomb here. There is a bomb, to use your Honour Justice Heydon’s language, in the application of Belgium law, because what Belgium law will do is to treat this as a contract matter and send it back to New Zealand as the proper law of the contract. I will come back to that. So the third matter is context, the third of my five matters - - -

GUMMOW J: A contract between whom?

MR BELL: Your Honour, I will come to that and the way it would be pleaded by way of defence. The fourth matter picks up something Justice Gummow I think mooted, the notion of can you derive some guidance from the rationale for the choice of law rule itself as considered in Pfeiffer. To the extent that the choice of law rule in Pfeiffer was said to accord with the reasonable expectations of the parties, we say yes. We will be making a submission that the reasonable expectations of both of these parties in this case was that their liability to each other would be governed by New Zealand law. In the case of the late Mr Puttick, his application to the Accidents Compensation Commission rather bespoke an expectation that it was to New Zealand that he would look for compensation for his work-related injury in terms of - - -

HEYDON J: Well, it was an application made by someone who was dying with a wife and two small children, certain amount of desperation involved.

MR BELL: That may be so, your Honour. But I will also be pointing to evidence which would bear out the reasonable expectation of the respondent. I will take your Honour to those provisions which make it clear that respondent employers have compulsory contribution obligations to cover just such claims in respect of their employees, including their employees who go temporarily abroad, as is the fact in this case. I will come back to the detail of that and the provisions.

The fifth matter, your Honours, is I will take your Honours to Justice Dickson, the Supreme Court of Canada’s decision in Moran v Pyle where his Lordship essays the view that the Distiller’s Case and the injunction to look to the substance of the matter does suggest you look to the place with the most significant real connection. Now, in going to that case, we are not seeking in any way to subvert Pfeiffer and Zhang and the rejection of proper law at all. We are simply saying, accepting that, accept our choice of law test is to go to the law of the place of the wrong, in those cases – and sometimes there is a debate about it, sometimes there is not. There obviously was not in Neilson. There probably was not in Zhang any issue about identifying the place of the wrong. But in those cases where there is, his Lordship Justice Dickson is saying one then falls back to real and closest connection to identify the place of the tort or to assist - - -

FRENCH CJ: Is that your fifth relevant matter?

MR BELL: That is the fifth relevant matter. The citation for Moran v Pyle is [1975] 1 SCR 393 at 408 and 409. I will come back to that. Can I now go to the pleading and develop my submissions. The first point to note about the pleading is the pleading history. This case started off as a pure employee/employer case. Tenon was sued as employer and the allegation was that it was the employer of Mr Puttick. It was then pointed out in correspondence by my instructing solicitors - - -

GUMMOW J: We do not have the original pleading, do we?

MR BELL: No.

HAYNE J: We have the mark up.

MR BELL: The pleading is marked up but I am not sure - - -

HAYNE J: I see paragraph 2 on page 5, “the Plaintiff was employed by the Defendant” was as originally pleaded. It became “the Deceased was employed by Tasman”.

MR BELL: Yes. The original error in the characterisation was picked up by my instructing solicitors who had access to not one of Tasman’s employment records but one of their own because at a subsequent time after he had worked for a Canadian company Mr Puttick came back and worked for my client. But in the context of his employment declaration he identified his employment with Tasman in the relevant period. Your Honours will see that in appeal book 1 at page 228. Your Honour Justice Gummow, I am told the original statement of claim is at page 349.

GUMMOW J: Thank you.

MR BELL: At page 228 you will see in the second box the next most recent employer, “Tasman Pulp & Paper Co Ltd” and partly in answer to your Honour Justice Heydon’s question, the duties were “Export Sales” and the job was “Export Manager”. Part of the pleading history was - - -

HEYDON J: So at the age of 22 he was export manager?

MR BELL: At 22 or 23, yes. The company was an old division of the New Zealand Forestries Department originally. With that clarification, when an invitation to replead against the employer, that is to say Tasman, that invitation was not taken up. Instead we received a rather more ambitious pleading which asserted the matters which your Honour Justice Hayne has focused on and, in our submission, rightly so in paragraphs 4 and 5, but there were a number of other quite significant amendments made to reflect that amendment.

Just pausing there, one can ponder why the decision was made not to sue the employer at that stage. It may well have been tactical. It may well have been a perception that if you have two New Zealand defendants, your prospects of resisting a stay would be less. Who knows, but the decision was made and the plaintiff has to live with the pleading. My friend Mr Walker has, as I seek to show, rather avoided and ignored what is pleaded and pleaded quite deliberately. Paragraphs 4 and 5 your Honours have focused on. Can I draw attention to some of the other important amendments which were introduced. Could I take your Honours to page 8.

CRENNAN J: Just for the sake of completeness, the original writ can be found at pages 343 and onwards.

MR BELL: I am grateful to your Honour.

CRENNAN J: Which I think was filed just shortly before Mr Puttick’s death.

MR BELL: Yes. I am sorry, it is page 12 of the appeal book, page 8 of the amended statement of claim. I apologise. These are the additional particulars and they pick up the flavour of the paragraph 4 and 5 amendments.

(s) Failing to advise, warn or inform the Tasman of the dangers of asbestos –

so this is the control –

(t) Failing to direct, control and manage Tasman so as to minimise or avoid the risks and dangers . . .

(u) Failing to take steps to bring the risks and dangers of asbestos exposure to all employees within its group of companies . . .

(v) . . . the Defendant failed to take any or any sufficient step to ensure that the subsidiary company and its employees were aware of the risks and dangers –

et cetera. So the amendment carried with it this shift to what your Honour, Justice Heydon was focusing on, the control which is at the foundational core of the alleged duty of care, but there were some other amendments as well, which are less obvious. If your Honours go to back on page 10 of the appeal book, subparagraph (i):

(i) Failing to warn or instruct the Deceased or Tasman –

Similarly –

(j) Failing to warn or instruct the Deceased or Tasman –

so also, (k), (m) and (n). Our first point obviously is that those failures have to be seated in New Zealand. That is where Tasman was, that is where the defendant was. That is the first point. Similarly, your Honours will see on page 13, particularly 11(f):

Despite all of the information and warnings . . . the Defendant, did not warn the Deceased or Tasman –

and the warnings set out in the previous five paragraphs and, in particular, (r) on page 11 are all warnings which emanated from non-Malaysian or non-Belgian sources, particularly (r) on page 11, “New Zealand Department of Health and other Government”, paragraph (b) on page 13, the Christchurch situation, (c) some common directors of CSR, (d) the “NZ Listener”, and (e) is put in a rather general way.

Now, can I note that his Honour the President, whose judgment my friend adopts and relies on, purported to summarise the case pleaded in his judgment at appeal book 2, page 774, paragraph 55, and your Honours will see he has footnoted various particulars, but what is really quite significant is that he omits any reference to particulars (k), (l), (r), (s), (t) and (v), the new particulars introduced which accompanied the new allegations in paragraphs 4 and 5 which, in our submission, on one view, changed the nature of the case, and that was, we emphasise, the plaintiff’s deliberate, tactical and forensic choice. The defendant could have amended to bring in a new defendant and keep the statement of claim as it was, but in any event.

The second point I would wish to put in relation to the pleading is this. It is a paragraph which has not been given any attention thus far, but it is, in our submission, terribly important – that is paragraph 7 of the pleading which your Honours will see on page 7 of the appeal book – because this is the pleading of knowledge, knowledge of the risk. It is put:

At at all material times throughout the Tasman employment, the Defendant knew, or ought to have known, that the Deceased would;

(a) be exposed to asbestos;

(b) inhale asbestos;

(c) be at risk of contracting serious respiratory injury from the exposure to, and inhalation of asbestos;

by reason of his attending and working at factories where asbestos was being used to manufacture asbestos products –

et cetera. Now, in our respectful submission, the significance of that is this. The various characterisation was not necessarily rooted in the particulars or pleading which my learned friend put forward about needing to retain someone in Malaysia to check out the factory, needing to ascertain what the level of risk was, et cetera. The pleading says, “We knew all that at all material times. We did not need to appoint anyone to go look, go see. We knew it. We in New Zealand had that knowledge”.

Our point is this, our fundamental point and Justice Harper’s fundamental point is this is just like Voth. It is not an omission case at all. It is a negligent instruction. “In New Zealand on the pleaded case we direct you either through our stooge, Tasman, or directly, with the knowledge that we have pleaded in paragraph 7 to go to various places about which we have knowledge and the risks there we know about. We direct you to go there and when we give you that direction, that instruction, we do not tell you to wear the mask, we do not tell you not to walk through when products are being sawed or cut et cetera. We do not tell you to avoid certain situations and when we give you the instruction in New Zealand, we do not give you the equipment which the pleading particulars (g) and (h) in paragraph 10 on page 10 say we should have provided you with”.

Can I develop this in this way. Where one sees a bit of artificiality, the complaint is he should have been provided with a mask or respiratory assistance, et cetera. Mr Walker says, in Malaysia, in Belgium. but why as a matter of “commonsense”, the word used in Voth, why as a matter of “substance”, the word used in Voth and Distillers and Gutnick, and why as a matter of “context”, the word also used in Voth, why on earth was not the negligent act so particularised for giving him instructions to go to these places and there and then not saying, “And here, take this equipment with you”?

KIEFEL J: Speaking of artificiality, how much of your characterisation of this case is anchored in company law? To a large extent, as between the holding company and the subsidiary?

MR BELL: To some extent, your Honour. One of the things I will be pointing out is that our learned friend’s proposed governing laws produced a most extraordinary consequence which does not sit well with commonsense and that consequence is this. Our learned friend will be asking the Supreme Court of Victoria to apply Malaysian and/or - - -

FRENCH CJ: And, not and/or.

MR BELL: It was “and” today, it was “and/or” a week ago, but let us just say “and” – will be asking the Supreme Court of Victoria to apply Malaysian and Belgium law to the first question, whether a New Zealand company 25 years ago owed a duty of care to a New Zealand citizen and resident employed by a New Zealand subsidiary. That is where this submission goes and that point is not a theoretical one. We know from Justice Sheller’s very learned decision in Hall and his analysis of Salomon v Salomon and related companies that is a common law proposition. It is highly controversial, highly controversial whether a duty of care is owed absent a plea of sham. Mr Walker eschews any plea of sham or façade, he says by virtue of control direction. That was the language lifted - - -

FRENCH CJ: What is the reference to Justice Sheller’s decision?

MR BELL: Yes, your Honour. Your Honour, Justice Sheller’s decision is in the James Hardie & Co v Hall (1998) 43 NSWLR 554, which we call the Putt Case, and the relevant passages that your Honour Justice Kiefel has identified as the company law issues, the relevant passages – I think the discussion begins at page 579. There is reference to Salomon v Salomon page 580 about letter C, there is reference, unsurprisingly, to Industrial Equity Ltd, Walker v Wimborne at 581, letter B, reference to US authority lower on the page, page 582 a discussion of Stevens v Brodribb and then discussion at 583 about the Bhopal litigation. He returns to Salomon v Salomon at 584 between letters A and B.

GUMMOW J: Was there ever any discussion that this distinction does not have quite the same force in choice of law questions?

MR BELL: Well, this was a choice of law case.

GUMMOW J: I know - apart from this case. This assumes it.

MR BELL: Subject to checking, your Honour, the one place where one might well see it is the English Court of Appeal decision in Adams v Cape Industries. The way it sometimes come up in this context, your Honour, of course, is where America is engaged as one of the potential either places providing the governing law and/or place providing the forum because of the US company law and the greater willingness or ability to pierce the veil. They do not put it that way, but to, in a sense, see through separate corporate personality.

GUMMOW J: Justice Sheller refers to some of the silicone cases at 581.

MR BELL: Yes. The reference to Adams v Cape is [1990] Ch 433. If I can point to any more particular passage - it is a very lengthy decision, but I have it in mind that issues of parent and subsidiary are raised in that case. But in answer to your Honour Justice Kiefel, the company law issue is an important issue which we perceive, but is by no means the whole of our argument. What we respectfully put is that obviously those particulars I identified, the new ones which accompanied the amendment, do direct and did direct Justice Harper’s attention and the majority in the Court of Appeal’s attention to the place of control as a very important, substantial or significant commonsense guider to where this alleged breach occurred.

But when one looks at - especially when one bears in mind the pleading of knowledge in paragraph 7, they already knew about the risks. When one looks at all the other particulars, one can see that those warnings or that care, however characterised, and the duty implicitly in those alleged breaches could have been discharged and, we say, in a commonsense way a place where it should have been discharged was New Zealand.

What our learned friend’s argument really boils down to is last opportunity, because either he has to say he accepts that we could have given those warnings in New Zealand. Now, either he says the failure to do so was not a breach. It is only a breach when Mr Puttick gets to Malaysia and Belgium. Now, that does not seem commonsensical or correct, with respect. At TI you tell an employee to go to Malaysia and then a week later when he gets there you ring him up and say, “Now you are there, I need to warn you about the following matters”. That is artificial and not commonsensical.

HEYDON J: Is it not commonsense though to warn someone of a danger just at the moment that the danger is appearing. In other words, it has more impact on that person’s mind if you say, “Look, this is a difficulty we are about to encounter and this is what we must do or what you must do” as distinct from doing so weeks earlier?

MR BELL: There may be questions of degree involved, but as a matter of principle, your Honour, no. I mean the risk is said in paragraph 7 to be “known” and to be a serious one. The corollary of your Honour’s proposition to me, if it is that there was not a breach in New Zealand but there was only a breach when it became more immediate and more important, that is difficult to, with respect, accept. Her Honour, the Chief Justice in Victoria, said this is not something passing over space and time. This is the instruction and the alleged negligence, et cetera, were both geographically and temporally concomitant. So in terms perhaps of efficacy, your Honour, yes, but in terms of substance and breach and pleading - - -

HEYDON J: Surely efficacy is he most substantial factor there could be.

MR BELL: Your Honour, take the particulars about the failure to provide equipment. There is no difference there. That is particulars (g) and (h). They provide proper equipment. Why would not the most obvious and a matter of substance place - to provide that was when he got his instructions to go to these places.

HEYDON J: This is not your fault, but again we would need to know how these expeditions are organised, how many people are on them, what other things had to be done on them - - -

MR BELL: That is why, with respect, your Honour, I went to some trouble at the beginning to point out the three cases. In the context of case two, a stay application where we are told to identify, in a sense the Court has to do its best with what it has as a matter of substance and commonsense. Now, can I make this important point – we submit that is what the Court of Appeal and Justice Harper did when one looks at the case as truly particularised and fully particularised and the new emphasis in the case – but can I make this point. It does not preclude, in my submission, when the matter goes to New Zealand, our friends contending for the application of Malaysian or Belgian law. The determination of – and I need to point out to your Honours - - -

HEYDON J: How can they sue at all in New Zealand?

MR BELL: I need to point out to your Honours that our friends do not accept and have never accepted, notwithstanding the grant of accident compensation, that the regime applies and, indeed, our friends led evidence before Justice Harper to the effect that where accident compensation has mistakenly been provided, restitutionary action lies for the recovery at the suit of the Accident Compensation Commission. Our friends say – and it is a matter of interpretation of the legislation, and it may turn on questions about which Act applies, when a person is injured, exposure or manifestation, physiological manifestation – our friends have never conceded in this litigation, ever, that the New Zealand scheme, whether the 1982 Act, 1992 Act, 2001 Act applies to them, so that when this matter goes to New Zealand, as we submit it should, they can run that argument. Moreover, they can run that argument with the facts.

HEYDON J: But you do not concede it is correct. You do not concede there is a common law cause of action available in New Zealand?

MR BELL: No, but with respect, the Court in a sense should not be concerned with whether there is or not. The fact is that if it applies, it is the way - - -

HEYDON J: You raised the subject. You started talking about the evidence they could call when the matter goes to New Zealand.

MR BELL: Yes, I know, but our position is that it does apply. That has always been our position and that is why we took the strike-out before the judge at first instance which was not necessary to decide, but our friends do not accept that. Our friends on their case will be able to run a common law claim in New Zealand because of their proposition that the Act does not apply. In that case, after the benefit of discovery, et cetera, or more material – and the discovery will have to come – my client does not have any of these records.

Tasman is no longer part of my client’s group. It is part of another group. It is still an active company in New Zealand but it not controlled or has any relationship with my client, but in that litigation my friends will not, in my submission, be shut out from – just as in Metall Und Rohstoff or Base Metal – making a claim.

I have pointed to some artificiality. Can I respectfully also make this submission about artificiality. My friend spoke often about place of work. Now, it may be a distinction needs to be drawn between system of work and place of work. It is, in our respectful submission, somewhat artificial to say in a context where an export sales manager is sent on what looks to be annual trips to what may be clients for all we know - he is an export sales manager, he is selling New Zealand paper goods to other companies. When an export sales manager goes on annual selling trips to different clients, is he really at a place of work in the context of a duty of care sense in circumstances where, on the evidence, and by way of contrast with Putt, those places or work are not owned or controlled by the defendant or the defendant’s group, they are simply places where he goes temporarily to make a work visit.

It is artificial, in our submission, to say that the duty of care to provide a safe place of work extends to those places. One can say, system or work obligation still obtains and that entails provision of equipment, masks, warnings, et cetera, but it is artificial in the context of this case to describe factories not owned or controlled which were the subject of annual temporary visits to be places of work.

CRENNAN J: I thought it was alleged that part of his duties was to inspect factories.

MR BELL: That is part of the allegation.

CRENNAN J: If he is present in factories which expose him to a risk, the duty to provide protective clothing, et cetera, would remain.

MR BELL: Yes, we do not shy away from that.

CRENNAN J: But your point is that that is the employer’s duty and does not come home to the holding company.

MR BELL: That is one of our points, but we do say it is somewhat artificial to say about a place of work which is not controlled in any way by the employer, or that it be assumed my client as controller.

FRENCH CJ: Do we have any notion of how this inspection function related to his duties as an export sales manager? It just seems an odd thing. You might be looking at things if you are importing them.

MR BELL: No. What we have is a pleading which makes allegations and we have such as we can squeeze out of the fact that he was an export sales manager.

GUMMOW J: Can we also take it from clause 8 that the place of injury is said to be Victoria, because that is where the symptoms manifested in 2003 - the evidence at page 456?

MR BELL: That, your Honour, is a question of science, in this sense. There is certainly science which says mere exposure because it does not necessarily translate into mesothelioma, the inhalation is not damage, because one may never get it, and there is science which says it takes many, many years, and I think there is a reasonably well-accepted view that there is an absolute minimum of 10, but the medium is 37, something like that. Where there may well be some debate, and for all we know the injury may in fact have been suffered in New Zealand before he migrated, in the sense that the penetration of the fibre into the – I am not on top of the pleura – could well have occurred many years after the exposure, but the manifestation of the symptoms first occurred in Victoria.

Certainly, we have no reason to doubt that – the manifestation of the symptoms, but whether as a matter of science, and I suppose ultimately as a matter of law, one says it is the manifestation of the symptoms, or whether one can actually identify a point in time prior to manifestation of symptoms when the pleura – so I cannot give your Honour a satisfactory answer to that question other than say - - -

GUMMOW J: I am just wondering if you are foreshadowing some limitation point, that is all.

MR BELL: No, I do not have any instructions or point to make on that. In fact, these proceedings were commenced quite tenuously, quite quickly after the manifestation of the symptoms. Our submission is that our friends do a couple of things. They ignore many of the particulars which do focus attention on New Zealand. Secondly, many of the particulars he has to rely on what is effectively last opportunity because he accepts, and it must be correct, that perfectly effective warnings could have been given and they would say should have been given at the time of the instructions.

This case in that sense is quite like Voth. We say it is not really an omission case at all. It is the giving of an instruction, that positive act, but which was inadequate, just as the advice in Voth was a positive act but it was inadequate. As the Court said, that act was complete when the advice was given in Voth we would say by analogy when the instructions were given in this case. The reason, in a sense, why last opportunity – in your Honour’s discourse this morning your Honour Justice Gummow asserted upon it in a different context in which last opportunity had got - - -

GUMMOW J: Justice Hayne referred to Alford v Magee.

MR BELL: That is right, got the bad press. In our submission, Distillers itself arguably looks at last opportunity and rejects it. In Distillers three theories were advanced. One, which was the easiest to reject, was that all elements of the cause of action had to occur in the forum. That was rejected. The second was – you will see this in [1971] AC at page 466, line C – that:

the last ingredient of the cause of action, the event which completes a cause of action and brings it into being, has occurred within the jurisdiction -

I have to accept against myself that as a strict matter of theory that would be damage here, rather than - - -

GUMMOW J: I am just wondering why it is not in Victoria in 2003, that is all, the last ingredient.

MR BELL: If the theory is that the damage was sustained on manifestation, then the answer to that would be yes.

HEYDON J: There must be thousands of cases in the Dust Diseases Tribunal about this question whether injury is caused by the fibres entering the lungs or only caused when illness manifests itself.

MR BELL: There are some decisions in the New South Wales Court of Appeal. Your Honour, I think the key decision in New South Wales is American Home Assurance Co v Saunders, which I am trying to provide your Honours with a reference to. There is a Full Federal Court decision of Comcare v Etheridge which I think may take a different view to Saunders on that very question. It is a question which one would expect to come here before very long.

We submit that this case is quite closely analogous to Voth. It is probably characterised as negligent instruction. That submission is consistent with Voth’s injunction to focus on the defendant when looking at this matter. We seek to develop that analogy, if I can just give your Honours a reference, at paragraphs 35 and 36 of our submissions. The reference to Saunders is (1987) 11 NSWLR 363 at 382 and 385. There is also Vero Insurance [2007] NSWCA 226 at paragraphs 155 to 177. Comcare v Etheridge is (2006) 149 FCR 422. They are on that physiological - - -

GUMMOW J: What do they tell us?

MR BELL: The New South Wales line tells you harm is when exposed.

GUMMOW J: It would depend upon the evidence in the case, I suppose.

MR BELL: Well, I think in mesothelioma cases, no, your Honour – I mean, in terms of this scientific question. Etheridge says - and it is an old case and may reflect old science, and it is queried whether it is a legal conclusion or a conclusion based on, yes, the expert evidence in the case – time of exposure and inhalation. The Comcare v Etheridge I think is physical manifestation. It obviously does have ramification for limitation periods, but in the Dust Diseases Tribunal context, and I suppose in most common law jurisdictions where there is discretionary extensions of limitation periods, these are classic candidates for the grant of an extension of time. If the American Home Assurance v Saunders theory is correct, time of exposure.

Your Honours, our proposition about effectively focusing on the negligent instructions and analogy with Voth is, in essence, the approach which the primary judge took at appeal book pages 670 to 671, paragraph 25. Paragraph 25, four or five lines down:

If the owners of the plants were being sued, the lex locus delicti would doubtless be the law of the country in which the plant was situated. But the owners of the plants are not being sued. The defendant is a New Zealand company, said to have exercised total control –

So his Honour was plainly influenced by the pleaded matter your Honour Justice Kiefel emphasised -

over its New Zealand subsidiary; and it was the New Zealand subsidiary by which Mr Puttick was employed and by which he was instructed to proceed to his inspections of the Malaysian and Belgium plants. The instruction was issued and received in New Zealand. That country is in substance the place where the present cause of action arose.

Then in Chief Justice Warren’s judgment her Honour points - - -

GUMMOW J: I just do not understand that submission. I am not criticising you for it, but I do not understand what has been set out at paragraph 24, that extracted passage.

MR BELL: Paragraph 24?

GUMMOW J: Yes, on page 670:

The plaintiff submits that the place of the tort is the place where a cause for complaint arose or where the impugned conduct assumed significance.

I would have thought that was Victoria, clause 8 of their pleading.

MR BELL: Can I seek to perhaps give your Honour the explanation for that language?

GUMMOW J: No, just a minute. But then they do not go to on to say that. They talk about Malaysia and Belgium.

MR BELL: Your Honour, I think a key to the problem there lies in this. If your Honours keep that passage open and go to Amaca v Frost [2006] NSWCA 173; (2006) 67 NSWLR 635 at 644, paragraph 38. My friends before Justice Harper and before the Court of Appeal not only relied on this decision but they relied on Justice Spigelman’s summary of the cases in paragraph 38 and that summary, with all due respect to his Honour, is too compressed.

If your Honour looks at the first bullet point, you see there the language which is picked up in the passage from Justice Harper’s decision. That is an incomplete and too compressed summary. Jackson v Spittall stands for this proposition, not the place:

Which gives the plaintiff cause for complaint –

but this more precise proposition - and in my submission, quite different proposition – the place of the act of the defendant which gives the plaintiff cause for complaint. His Honour has, in an effort to be succinct, lost what, in our submission, is a very important focus, and similarly with the third bullet point, where he seeks to summarise Voth where he says:

Where the act or omission assumes significance.

The true proposition from Voth, which one picks up at page 567, is the place of the act of the defendant in the context of which the omission assumes significance, and I do not want to, in a sense, descend to too much analysis of how this error in the summary of the plaintiff’s submissions came about, but as I apprehend it, they took this as a shorthand summary of the cases and formulated their submissions in that way, and in my submission, that shorthand summary loses critical elements, the focus on the defendant.

I have told your Honour that the full reference in Voth is relevantly page 567, and Jackson v Spittall, the first bullet point where I have identified his Honour has omitted the reference to the defendant - the reference to Jackson v Spittall is (1870) LR 5 CP 542 at 552 is the relevant page where one sees the source of the true legal proposition.

HAYNE J: Now, if that is right, and if it is right to see that summary as too compressed because it omits in each case reference to the act of the defendant, does it follow that the focus is falling upon the conduct asserted to be the breach?

MR BELL: Yes.

GUMMOW J: Not damage?

MR BELL: Certainly not damage.

HAYNE J: It is possible, whether this is this case, I simply do not know, but it is possible that a duty of care might arise from a relationship forged in one jurisdiction, the act constituting the breach occur in another jurisdiction and damage occur in a third jurisdiction. Do I understand the submission that you are presently developing to focus upon the second of those elements, the place of breach, and implicitly thereby rejecting what seems to be either now or the emerging European rules which are picked up in a symposium in the Tulane Law Review of May 2008, which is volume 82, No 5, and where under (ii) – at least initial focus, subject to some qualifications – may be seen as falling on the lex loci delicti, and the locus delicti is defined as the place of injury. See, particularly, the article of Professor Hein at 1692.

MR BELL: The answer to your Honour’s question is in footnote 44, page 15 of our submissions. What Rome II does is to introduce a gradated series of propositions. True it is, the first one is place of the damage, but we draw attention to Article 4(3) providing that that may be displaced by reference to a pre-existing relationship between the parties.

HAYNE J: Then there are special rules about product liability claims where you have a whole cascade of rules and so on. I am not suggesting that more can be done than to identify at least a focus for at least some purposes upon place of injury to understand whether you are rejecting that.

MR BELL: We certainly reject the place of injury.

GUMMOW J: Why?

HAYNE J: Why should one?

GUMMOW J: I know it is inconvenient for you, but beyond that - - -

MR BELL: No. Certainly as a matter of Australian authority Voth and Gutnick very clearly reject that, very clearly.

KIEFEL J: Are you equating injury with damage?

MR BELL: Yes.

KIEFEL J: But the terms of the article really refer to the event giving rise to the damage, Article 4(1), which would probably be breach.

MR BELL: Yes. I need to be careful.

KIEFEL J: Yes. But in relation to the Rome Convention, would not your clearer – and what I think some commentators regard as the most important or significant general rule is found in Article 4(2) which has regard to habitual residence and where the habitual residence of the plaintiff and the defendant coincide, that is taken to be the rule for the reason that their interests are both identified in the same area.

MR BELL: And that probably has some resonance with this Court’s concern in Pfeiffer and Zhang and, indeed, in Voth about reasonable expectation of the parties. Place of damage might be quite fortuitous and place of damage in this case, we would respectfully submit to your Honour Justice Gummow about why, is a classic example of fortuity. Obviously people move from Australia to New Zealand and perhaps more commonly from New Zealand to Australia, but it is relevantly fortuitous that Mr Puttick moved here for a job here. He could have moved to Canada where he did move earlier in his work career. So that is the “why” and I will come back to “reasonable expectation”, but certainly habitual residence, but also, I have emphasised “context”.

Can I develop the submission about employment and contract which your Honour Justice Gummow said quite rightly, we are not in an employment context. We were not the employer, but in a case where the plaintiff has chosen to ambitiously plead effectively that we were the controller, that Tasman had no independent mind, effectively, or subject to our control and direction, it would be perfectly open to my client to put on this defence and make this argument. That is denied. Control is denied. But if the allegations in paragraph 4 be made good, it follows that Mr Puttick was employed by Tasman as agent for an undisclosed principle, namely, Tenon, the party which, on the pleading, controlled, directed, managed the subsidiary, the agent. That would be open.

In a sense, one is reacting to what one might think is the ambitious/artificial pleading put in 4 and 5, but we could quite readily say and quite plausibly say if that be true it would follow that he was not in truth employed as a matter of contract law by Tasman. He was employed by Tenon as an undisclosed principal.

In any event, if one is looking at this matter as a matter of principle and Mr Walker’s written submissions in reply say, “Treat this case – decide this case as though Tenon was the employer” then, in our submission, the European accessory choice of law doctrine which we refer to in paragraphs 52 to 55 of our submissions does have resonance. It is picking up that idea of context or Justice Hayne’s notion of a legal order, what was, in a sense, the legal order governing these relationships.

KIEFEL J: I think that the Rome Convention is having a bit of everything, is it not? That is the problem with it. It starts from habitual residence. Article 4.3 is regarded as an escape clause and not as a primary clause.

MR BELL: Yes, that is right. I am not though saying, “Just go to Rome II”. What I am trying to pick up is the more general - - -

KIEFEL J: What are you saying - what use should we make of it when it comes in in January 2009?

MR BELL: That it is not surprising that in the context of a claim between employee and employer or quasi-employer, it is not at all surprising or undesirable as a matter of certainty, as a matter of consistency and as a matter of, I suppose, rule of law insofar as the law aspires to certainty and consistency of outcome, that a dispute between an employer and an employee which could be framed contractually or could be framed in tort is governed by the same law and produces the same legal outcome and that is the law of Belgium because we know from - and could I take your Honours to appeal book 2, page 516, paragraph 10, the claim in tort under Belgian law, if Belgian law treated my client as the employer, the claim in tort would be barred unless the conduct was criminal. It would be governed by contract and on the facts of this case to be inferred, I accept – the governing law of this contract or this notional contract or putative contract would undoubtedly be New Zealand and so applying Belgian law with renvoi or with the whole of the law approach, one would come back to New Zealand.

FRENCH CJ: That is on the basis that you would have a cause of action under the contract?

MR BELL: Yes, it presupposes that.

FRENCH CJ: There would have to be a breach of contractual duty identified that arose out of this.

MR BELL: That is right. I am not making the fully ambitious submission that Australian law should not permit concurrent causes of action. That is the European position.

GUMMOW J: It is not the concurrent cause of action that is agitating me, Mr Bell, it is substitution of parties. If (a) and (b) have got a contract and there is also a tortious relationship between (a) and (b), well, that is one thing. Here we have got (c) as well and you keep sliding and slipping around, if I may say so.

MR BELL: I accept all that, your Honour. There are two answers to that, with respect, your Honour. One, if the Court is looking at this as a matter of principle - - -

GUMMOW J: Do not say “substance”.

MR BELL: No, as a principle. If the Court is looking at this as a matter of principle, one ought to get the same result as an employer/employee situation. Secondly, as a matter of the pleading in this case - - -

GUMMOW J: Even where there is now no relationship at all between these two corporations?

MR BELL: Yes, because the relevant time is back in the 1980s when there was and on the pleading it would be perfectly open to us, if our friends are going to engage in the ambitious pleading, we could, in a sense, plead in the alternative that you are effectively saying, “We were your employer”. As a matter of contract law we might be able to say, if the factual allegation us right, the true contracting parties in the employment context were Tenon and Mr Puttick. But, your Honours, we do not need to go as far as the European approach, but we point it out because it has great resonance with what Justice Hayne was saying.

This is a context of a pre-existing relationship. That pre-existing relationship also had with it a legal framework and it is highly relevant in locating the conduct of the defendant complained of to have regard to the seat of that pre-existing relationship.

KIEFEL J: But are you not overlaying a tortious duty with contract in the way that you would say that the Belgian approach does? Could that not give rise to injustice in some cases, depending upon the circumstances relating to the breach of duty and where they occurred?

MR BELL: I think I am trying to do something more modest which is to say, if one is looking to locate the conduct, one locates it in the context of the relationship which existed and the relationship which existed was seeded in New Zealand and, on our learned friend’s case, governed by the legal norms in that place.

GUMMOW J: Is it not enough for you to say that the seat of the control of the parent of the subsidiary was in New Zealand? If it can be located anywhere, it is in New Zealand at headquarters.

MR BELL: I hope that is sufficient, your Honour.

GUMMOW J: That is right.

MR BELL: That is our first proposition. Because our friend is squarely in his written submissions in-reply saying treat this as an employer and employee context and we are saying, if that is so, the Court could legitimately look at how other legal systems treat this and other legal systems by reference to this accessory choice of law rule, strive for, in the words of Professor Nygh, an approach which “promotes unity of applicable law, certainly and predictability and meets the reasonable expectations of the parties”, but perhaps I do not need to go as far as I have gone.

Could I make this submission about reasonable expectations, your Honours, by first identifying in Pfeiffer [2000] HCA 36; 203 CLR 503 the relevant paragraphs noting the role of reasonable expectations in this area of discourse, paragraphs 75, 87 and 129. Zhang, I do not need to take your Honours to the paragraph, I will just give your Honours the references. Zhang [2002] HCA 10; 210 CLR 491 at 130. In Voth there is a hint of reasonable expectation reasoning at 568, and in Moran v Pyle, which is the Supreme Court of Canada decision, we have extracted the relevant passage in our written submissions at page 7, paragraph 26, and following over to page 8, reasonable contemplation of the parties.

Now, if they be relevant considerations, which we submit they are, can I note for your Honours, from the defendant’s perspective, what their reasonable expectation might be. The defendant between 1982 and 1989 and Tasman, for that matter, were subject to what was then the Accident Compensation Act 1982, and your Honours have been provided with relevant portions of that. Under that Act - and I will read onto the transcript the relevant sections – employers needed to make regular compulsory contributions to the commission and the fund, and under section 26(1)(c) of that Act:

To make provision for the compensation of persons who suffer person injury by accident and certain dependants of those persons where death results from the jury.

Section 26(2)

(a) All persons who suffer personal injury by accident in New Zealand; and

(b) To the extent specified in sections 30, 31 and 32 of this Act, all persons who suffer personal injury by accident outside New Zealand, –

shall have cover under this Act –

Then if one goes to section 30, which is one of the sections referred to in section 26:

(1) Where an earner leaves New Zealand in the course of his employment, then his cover as an earner shall, from the time that he left New Zealand, extend to personal injury by accident that happens outside New Zealand within 12 months from the date on which he last left New Zealand, if,-

(a) In the case of an employee, he intends to be absent from New Zealand only temporarily –

et cetera. Now, as I say, our friends take issue with the application of this Act, but the purpose of going to those provisions and also your Honours will see the compulsory levy provisions in sections 38 and 43 and also relevant are section (2), the definition of “employer”, and section 19. The defendant, and I suppose for that matter, Tasman, were in 1980 operating under a regime where they made their insurance arrangements, another matter which was relevant in Pfeiffer, explicitly relevant on the reasoning of the Court, they made their insurance arrangements or their insurance arrangements were effectively made for them by operative legislation.

Now, the operative legislation was said, as one can see, to apply to their employees, including their employees who worked temporarily abroad. Now, it is not a submission on the strike-out. This Court does not need to decide whether the Act applies or not, but it is not a bad indicator of why my client at least and, no doubt Tasman, might have a reasonable expectation that New Zealand law and the New Zealand regime would govern responsibility for injuries sustained by its New Zealand resident employees even in circumstances where those New Zealand resident employees are required to travel abroad.

Accepting fully what your Honour Justice Heydon says about the circumstances in which the application was made by Mr Puttick and then pursued by Mrs Puttick to the Accident Compensation Commission, we nonetheless do say this. It does accord. It is interesting, to put it no higher than that, that the first place Mr Puttick and his family looked for compensation was a place where he was employed, where he was issued with instructions, where he worked most of the time and to which he returned after visiting these factories.

HEYDON J: He could go to a relatively benign government department and get some quick money because he did not have any money, as distinct from trying to sue a non-benign corporation?

MR BELL: Your Honour, I accept one can come back at me with that factual characterisation, but if one is looking at it objectively, if one is trying to gauge the party’s reasonable expectations, my submission is the party’s reasonable expectations would be that New Zealand law would govern anything arising out of this New Zealand seated employment, irrespective of the fact that that New Zealand employment might from time to time take him overseas.

I accept your Honour’s point about possibly trying to squeeze too much out of the fact of the application, but standing back from it, it is not a surprising submission. In truth, were it not for the existence of this accident compensation scheme, one wonders whether the argument would be seriously put that this liability is governed by Malaysian or Belgian law.

It is, and perhaps this is unscientific, this case has all the hallmarks of it being a New Zealand tort. Some of the American cases speak of a centre of gravity of a case and they speak of that in jurisdictional context as well as choice of law contexts.

FRENCH CJ: It is a bit like substance.

MR BELL: Yes, quite. I fully accept that, your Honour. One can jump between synonyms or similar words. Your Honours, could I then develop this submission. I have made some submissions about a pre-existing relationship. Whether one calls that strictly employment or not, that is very significant in distinguishing the New South Wales line of cases and Distillers in which my friend put so much reliance. Mrs Thompson in Distillers could not have been warned - - -

GUMMOW J: You are becoming conversational, Dr Bell. We should not have to strain to hear you.

MR BELL: I am sorry, your Honour. The point I was going to make developing the fact that here is a case of a pre-existing relationship is this is a very important point of distinction to all of the New South Wales cases my friend relied on and the Distillers Case because in Distillers, Mrs Thompson was never in England and the only time, in a sense, the defendant came into contact with Mrs Thompson was when her product was acquired by her in a particular place.

So also, Mr Putt never worked in New South Wales, was never in New South Wales. The only place where he worked was New Zealand and that is the only place where the defendant’s contact interacted with Mr Putt, the place where he worked. The other two New South Wales cases, Frost and Grigor are both product liability cases, they are not employment case at all, they are like Distillers. Our point of course is this. There is this pre-existing relationship and it is in New Zealand and unlike the example Mr Walker relied on, the trip to South Africa from the Distillers Case, the fortuitous place where a warning could have been given, there is no fortuity associated with New Zealand in this case.

New Zealand is the place just as Kansas City, Missouri was the place where the pre-existing relationship existed and where the warnings could and should have been given and the failure to give the warnings there were breaches and the failure to exercise corporate control there, and only there could only have been there, are some of the important particularised breaches.

My friend embraces Justice Maxwell’s judgment. I have already made observations that his Honour’s summary of the case pleaded was not accurate or was significantly, with respect, deficient. Furthermore, your Honours, in our submission, the President’s judgment – one will see this from a passage we have extracted in paragraph 21 of our submissions, if that is a convenient place to go – falls foul of, in paragraph 59, appeal book pages 775 and 776, precisely that which was rejected in Distillers and Voth and Gutnick because what his Honour says:

While the relevant conduct began with the employer giving the travel direction in New Zealand, that was merely the first step. By itself it created no cause of action. The conduct about which complaint is made was not complete until Mr Puttick actually worked, without protection, in the unsafe workplaces.

Now, the conduct about which complaint was made was not completed by Mr Puttick doing something. There is, to this judgment, in our submission, the tone of last opportunity which is rejected, in our submission, on the authorities. Finally, on this aspect of the case, your Honour, Moran v Pyle – I have already referred your Honours to that – we have set out the passage from Justice Dixon in paragraph 26 of our submissions, but his Honour does take Distillers and hints at “real and substantial connection” as being, in a sense, the test for locating a tort. If that is the test or if that is an available test, in our submission, it points to New Zealand.

FRENCH CJ: Evaluative terms of that kind tend to be purposive because they have such a range – I mean, I am thinking in terms of such use of the word “substantial” in the context of, say, the Trade Practices Act in Part IV and one looks, then, to the purpose that is being served when you are making a judgment of substantiality. How would you identify that?

MR BELL: We are doing it in the context of this pleading and we would say it is in the context of the employment relationship that the New Zealand duty owed to New Zealand employees in and about their work, wherever they happened to go on their work, and to pick up something her Honour Justice Kiefel talked about, it was Rome II. In a sense, Rome II is seeking to state a general rule across a myriad of factual situations. Mr Walker illustrated that by reference to defamation, the importance of vindication of reputation and, for example, product liability is a different context. This is not a product liability case and that is why the New South Wales cases and Distillers is quite different and I have made the submission that it is much closer to a Voth Case.

Your Honours, our friends accept that if we hold the place of the tort, there is no basis for the interference with the discretion, but what we do raise on the notice of contention is this and it is twofold. We make a submission that even if the Court takes the view that New Zealand law is not the governing law, but Malaysian and Belgium law is, Victoria would still be a clearly inappropriate forum on the Voth test. We make the alternative submission that the Court should re-exercise a discretion in light of having found error in the decision of Justice Harper and we make it at paragraph 2 I think of the notice of contention. Then we make the submission, which I think is paragraph 4, that the Court in re-exercising a discretion should do so – and we have developed this in the submissions – either by reference to a more appropriate forum test or, as we put in the submissions, a modified Voth test. Can I, and I will try and do it fairly briefly and succinctly, make eight points about Voth and - - -

GUMMOW J: Are you seeking leave to re-open Voth?

MR BELL: Yes, your Honour.

GUMMOW J: Well, this is not an appropriately constituted Bench to do that, is it?

MR BELL: I had anticipated seven, your Honour, and we had flagged it in our written submissions. But Voth itself I thought actually of course it was a Court of six, not that that is an answer to your Honour’s question.

GUMMOW J: No, it is not.

HEYDON J: I do not think eight quick points are going to be good enough to overturn a decision of six Justices which was very thoroughly argued in 1990.

MR BELL: It was a decision of four Justices, the decision.

HEYDON J: I see your point, yes, but it was very thoroughly argued.

MR BELL: And stated to be a compromise decision by the plurality.

HEYDON J: It was a compromise arrived at after very thorough argument. It is not to be overturned without very thorough argument.

MR BELL: Well, I accept that and I know what the time is. We would like to seek leave to do it. Can I perhaps deal with it in this way first. Could I make the submissions we make on paragraph 2 of the notice of contention, that is to say, within Voth, not challenging Voth, the discretion should be re-exercised in favour of a stay and to shorten that, your Honours, Voth contemplated these applications taking five minutes and the Court being supplied with a list of factors. We have touched on them in our written submissions, but we have sought, partly with a view to the fact that we might run out of time, to identify by reference to the appeal book the factors we would call in aid on the re-exercise of discretion. Could I provide those to your Honours without going to them in any detail. I provided my friend with copies of these before Court this morning.

In Voth the Court said that the Spiliada connecting factors were relevant to the exercise of discretion. In our submission, the proper understanding of Voth is this. If the connecting factors do suggest a clear inappropriateness of a forum, it is presumptively vexatious or oppressive. In other words, one does not go on in addition to see whether there is evidence that proceeding here rather than there would be oppressive, et cetera, and in Voth there was no such evidence. All you had in Voth was an analysis of the connecting factors and the conclusion that it was clearly inappropriate.

One of the difficulties with Voth, if I may respectfully say so, is that, as applied at least in Zhang where Renault failed because it failed to adduce evidence of oppression, et cetera, in Voth there was no such evidence. In Voth the focus was on the connecting factors from which the conclusion flowed as a matter of objective reasoning. This matter, the submission I am making about first looking at the connecting factors, reaching a conclusion about clear impropriety and then presuming vexational oppression, is very clearly and well discussed in a decision of Justice Brereton in the case of McGregor v Potts [2005] NSWSC 1098; 68 NSWLR 109.

Apart from the matters which we have provided to your Honours on the list of documents, can I make one further point. There has been discussion about the absence of Tasman. The evidence before the Court is that if the proceedings were to continue, Tasman would be brought in as a cross-defendant. Here is an illustration of the potential prejudice. Tasman has no presence here. There will be jurisdiction under the proper party rule to bring them in, but they would not be bound to come here. They could take the view that, “We are not here, if we do not appear a judgment will not be able to be enforced against us in New Zealand because we did not participate, we did not submit, et cetera on common law principles”.

What happens if my client is sued to judgment by reference, say, to Malaysian law and sustains a multimillion dollar verdict? The employer against whom it wished to cross-claim does not turn up so it has to sue that party in New Zealand. Tasman would not be bound by any finding by the Victorian court that this was governed by Malaysian law. Tasman could say, “Well, it was clearly governed by the compensation regime and we have no liability”.

That problem of multiple parties in transnational cases and what some people describe as the problem of the gap, not being able to consolidate the action and have all relevant parties in the one place bound by the same findings of fact and law, is a point of real prejudice. It is the reason why the Privy Council granted an antecedent junction in the Aerospatiale Case in [1987] AC, because there were proceedings in Brunei and proceedings in Texas and there was the apprehension that not all of the parties were going to be able to be joined in the one set of proceedings that led to the grant of the antecedent junction in Aerospatiale, which I think is [1987] AC at about 870.

That problem is a real, albeit currently potential problem if these proceedings are permitted to go ahead in Victoria. Tasman is an obvious party to be present at the seat of this litigation, but is not here, is under no obligation to appear here and could well take the view, “Sue us in New Zealand and we will make the argument which may not succeed in Victoria that this claim is governed by the Accident Compensation Regime and we have no obligation to contribute”. That is a type of real prejudice and vice which emerges.

We note in our list of points that although there was evidence that it would be inconvenient for Mrs Puttick to travel to New Zealand, and Mr Walker in a sense made fair concessions there by reference to the Evidence and Procedure (New Zealand) Act 1994, we do note that Mrs Puttick has litigated in New Zealand suing the Accident Compensation Commission challenging the quantum of the compensation award.

Your Honours, that is my, in a sense, paragraph 2 notice of contention point and we say it would be appropriate if this Court can re-exercise the discretion and if the locus point is disturbed, the discretion does have to be re-exercised. There is evidence about witnesses which we have referred to and given your Honours references to. These will be elderly witnesses because this about events 25 years ago and what people knew 25 years ago and how particular corporations were run 25 years ago. They are the witnesses, mostly likely to be retired, given the allegations about control, management, direction, et cetera, retired if still alive. Your Honours, can I endeavour to make these short points as to reasons why we would say the Court should look again at the test.

FRENCH CJ: You do not point in your submissions to any actual difficulties that have been experienced in the application of the test?

MR BELL: Yes, I do, your Honours. I point to the fact that difficulty arises from, on the one hand, the Court’s recognition that there was a case made out to move away from the St Pierre test, the old abuse of process test. The Court recognised that.

CRENNAN J: You do not like the way Voth has been applied in Zhang, that is the point, is it not?

MR BELL: That is one point, it is not my only point, but we say that - - -

GUMMOW J: Do you want to reopen that as well?

MR BELL: No, your Honour, that is an application - - -

GUMMOW J: It is not a laughing matter, Mr Bell.

MR BELL: No, your Honour, the reason I responded that way, your Honour, that was an application of Voth, there was nothing new - - -

CRENNAN J: But that has given rise to this territoriality argument you are putting.

MR BELL: Yes. There are two points. Since Voth, this Court has, in a number of very significant decisions, most notably Pfeiffer, Zhang on the choice of law point, not the stay point, and Neilson, shifted very strongly towards territoriality. In Neilson your Honours Justices Gummow and Hayne emphasised the desirability of a whole law approach; you apply all of the law, by which in that context of that case was not just municipal law but choice of law. The logic though of the premise which underpins your Honour’s judgment was that it is most desirable to apply the whole of the law, it is not just the substantive law, but it is the procedural law and the only place, because taking substantive law out of its procedural context, even if you have a narrow definition of procedure, and out of its cultural context when one looks at things in negligence cases like standard of care, et cetera, taking the law out of that context can generate discrepancies or discordant results, also practically, has to be proved by evidence, et cetera, rather than being applied by judges who apply it day to day.

Our point is this, we ought to have a stay test and the more appropriate forum would yield this result which directs litigation or at least increases the prospect of there being a coincidence between the place of the litigation and the governing law. We call in aid Pfeiffer, Zhang and Neilson as significant events since Voth which shift the focus to notions of territoriality and parties’ reasonable expectations. So that is one significant change.

The other point, as your Honour Justice Crennan made, which we do make this submission, the difficulty with Voth in practice is this. As I said, on the one hand there was an avowed liberalising of the rule, the move away from St Pierre, but on the other hand there was the retention of the language of vexation and oppression, albeit said to be in a modified sense. In Voth no suggestion of any deficiency in terms of evidence of oppression, et cetera. In Voth the reasoning was, connecting factors point to Missouri powerfully.

Presumptively, it is vexatious and oppressive to be suing here, not as a matter of subjective evidence, not as a matter of an affidavit. After all, Mr Voth was a partner in Deloittes. There is no evidence that he could not afford to come out here, that he did not travel for business, anything like that, but it was done by reference to the connecting factors. When one comes to Zhang and this Court applying that, and there is a manufacturing design in France, eyewitnesses in New Caledonia, et cetera, the only connection here the place where Mr Zhang continued to suffer damage, the Court said the want of subjective evidence of oppression means the discretion was wrongly exercised. So there is uncertainty in practice as to how this test is applied.

My less ambitious submission, your Honour Justice Heydon, to overturning Voth is to say Voth should be modified, maintain inappropriate forum or – it may be clearly an inappropriate forum – but there is no need or call for the retention of the language of vexation or oppression, even in its modified sense. It is a source of difficulty in practice and, with respect, confusion just as in the United Kingdom the transition from St Pierre to Spiliada went through a number of cases. Atlantic Star was one where Lord Reid adopted the same approach which Justice Deane followed of modifying the language of vexation and oppression. That approach was dropped. It was seen to be unsatisfactory to continue the use of the old language. There are many cases, in my submission, where one can say that a forum is inappropriate but it is not vexatious to be sued there.

They are the submissions we make. We make a couple of additional points. We say that in Voth the Court said it would only be in rare cases that there is a difference in outcome. We have given some references in the submissions to suggest that that has not been the experience. Secondly, we point this out, that at page 560, point 7 in Voth it was suggested that there was no consensus amongst common law countries with the implicit suggestion that if there were that would be a good reason for this Court to move to the more appropriate forum case. We have, in footnote 62 of our submissions, sought to identify the very wide common law application of the more appropriate forum test.

GUMMOW J: Yes, but the United Kingdom itself is no longer a common law country and - - -

MR BELL: Well, your Honour, it is vis-à-vis certain defendants.

GUMMOW J: As I understand, there was an enormous amount of grumbling of the consequences of the European system.

MR BELL: Yes, I accept that, but the more appropriate form has taken root elsewhere in the common law. The final point we would make on this is this. One of the great problems, not currently a problem in this case, but a problem in many transnational cases, is a problem of actual or prospective concurrent litigation. The clearly inappropriate forum test contributes very significantly to that problem and I accept Henry v Henry and CSR v Cigna point to some solution, but the fact that this Court with the very wide jurisdictional rules of the State Supreme Courts and the Federal Court, in particular the tort rule which treats damage here as sufficient and damage being continuing hospital treatment – Mr Zhang’s Case injured in New Caledonia – very broad jurisdiction and a very generous test, vexation or oppression, albeit in the liberalised sense. Litigation is likely to stay on foot, very hard to get a Voth stay.

So litigation which recognises that there might be more appropriate forum elsewhere, litigation starts in the more appropriate forum. One has then the recipe for the real difficulties which arise from concurrent transnational jurisdiction and one gets into the very problematic area of.....injunctions which courts are diffident about granting because of what they may impliedly represent.

I accept this particularly problem does not arise on the facts of this particular case other than we are going to have a potential problem with the cross-claim, for the reasons I earlier outlined, if Tasman do not turn up, which they would be well advised not to, while the clearly inappropriate forum, especially one underpinned by notions of vexation and oppression stays, then we are likely to contribute to a situation of concurrent litigation, which has to be solved either by the blunt tool of.....injunction or (b) by the unattractive notion of a race to judgment, both courts or all three courts or Full Courts maintaining jurisdiction and parties jockeying to get res judicata first, et cetera. That problem would be significantly diminished, in my respectful submission, were this Court to bring itself into a line – or I should say, align itself - - -

GUMMOW J: Exactly.

MR BELL: - - -with the other common law jurisdictions. They are the reasons, we submit, the Court should give consideration either to reopening Voth or, alternatively, to modifying it to retain the focus of inappropriate forum but to jettison the language of vexation or oppression. What we submit is, on either of those approaches, a modified test or a more appropriate forum test, a stay would definitely be granted irrespective of the fact – this is the premise of this argument that New Zealand law might not be the applicable law but Malaysian or Belgian – and even if either of those courses is not taken, on the existing test we say Victoria is a clearly
inappropriate forum for a hearing of this trial. They are our submissions, if it please the Court.

FRENCH CJ: Thank you, Dr Bell. Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, my friend dwelt somewhat on the question of what I will call coverage of the New Zealand scheme. One thing is clear, that it is not clear, and, second, that it may well provide cover, that is, financial benefit, of a limited kind to people who have claims which are foreign torts; not only foreign torts within the meaning of that expression in Australian common law, but also foreign torts within the meaning of that expression in New Zealand common law. The more one looks at the provisions concerning the availability, limited as it is, for coverage for injuries suffered abroad while working for one’s employer abroad, one sees that the possibility must arise of cases attracting compensation under that scheme which are the result of foreign torts which certainly in Australia could be sued on as a foreign tort.

In New Zealand they could not be sued on even if it was not the employer who would be the punitive tort feasor but perhaps, say, a stranger. That is not an answer to the question here. The question here is, what is the governing law chosen by our common law choice of law rules for the claim disclosed on the pleading and particulars? It is not, would New Zealand pay for what may well be a foreign tort not governed by New Zealand law in any event and, if so, should we not, out of some trans-Tasman comity drive this case to New Zealand to be refused any remedy in New Zealand under their Act?

That, in our submission, is an entirely false issue. The question is not whether the New Zealand scheme provides some coverage. The question is whether this is a foreign tort of a kind where the law chosen by our choice of law rules is something other than New Zealand. If so, there is no reason, as the first instance judge correctly decided, to regard the necessary test for a stay as having been satisfied. That answers much, perhaps all, of what my learned friend said in relation to the expectations of the defendant.

Leaving aside the fact that perhaps expectations of parties, jointly or severally, might be a better investigation, the expectations of the defendant here cannot possibly be that a tort where the wrong is entirely committed abroad by a stranger, hurting someone who is in the defendant’s employment, is one upon which the plaintiff could not sue simply because he or she could be covered in New Zealand. In our submission, the notion of expectations has been built upon a scheme which, as my friend has himself demonstrated, is by no means limited to compensation for injuries, giving rise to a dispute which require a governing system of law calling in aid the notion of lex loci delicti. It is a scheme for no fault. It is a scheme for injuries which will not involve necessarily any notion of a tort, let alone a foreign one.

In relation to what has been called the pre- or concurrent existing relationship, in our submission, it is a fallacy in this case to concentrate on the notion of the contract. The respondent cannot have it both ways or, if they do, that is a set of alternative contentions which is a reason not to stay, but rather to hear and determine these matters in Victoria. They cannot have it both ways, however, we would submit, as to whether there is a contract of employment between my client’s late husband and the respondent. As my friend correctly pointed out, the litigious history of this dispute includes the documented assertion acted on by the amendment to the pleading on our part that the respondent was in no contractual relations of any kind.

My learned friend seems to put by way of either a retraction of that or as an alternative to it that our case is somehow that the employment of Mr Puttick by Tasman was on Tasman’s part a mere act as an agent for an undisclosed principal, namely, Tenon. Not only is that not our case, neither is there any trace of that in any of the arguments below or, for that matter, any of the evidence below. Neither is it the only available analysis or characterisation of what flows from the relationship in question between the parties.

It is for those reasons that the notion that paragraph 10 of the Belgian legal expert’s opinion relied upon by my learned friend does nothing to detract from the attractiveness for us of having Belgian law govern the case. There is no contract claim between the parties because there is no contract between the parties, or at least that is how matters appear at the moment when the question of a stay needs to be determined.

In any event, if, as my learned friend offered, Belgian law might – I stress “might” – drive the parties back to New Zealand by a Belgian choice of law rule not in fact demonstrated to your Honours, then we are in this position. The fact that it might send us back to New Zealand is a lot better for us than what they otherwise threatened, that is, the certainty of being in New Zealand. For those reasons again, for a stay application that will not suffice to vindicate the decision below.

GUMMOW J: Mr Walker, can you just encapsulate why it is that you say the Supreme Court of Victoria is not a clearly inappropriate forum at the end of the day? At the end of the day, that is the question.

MR WALKER: It is not a clearly inappropriate forum because jurisdiction having been regularly invoked – there is no dispute about that – the law to govern the dispute between the parties is available to be proved in Victoria. No one is suggesting that it is clearly inappropriate, if I may put it this way, because Belgium or Malaysia would be better, and ultimately we rely simply upon the formulae this Court has repeated since Voth, because no injustice is done to the defendant or, from an overall view of the administration of justice, by requiring the Victorian Supreme Court to exercise its jurisdiction.

GUMMOW J: Just assume you are wrong about the lex causae being Belgium or Malaysia, and just assume the lex causae is New Zealand, does it necessarily follow that Victoria is a clearly inappropriate forum?

MR WALKER: No, it does not. No, that is why I raised what I did. I do not have special leave to put – I hope in answer to Justice Crennan, at the outset, I made it clear if they were not bound by the grant of special leave, then this is clearly a case, like Zhang, where we would say, look, even if it was New Zealand, why does this lady have to go to New Zealand? Why can she not litigate in the place she lives in?

GUMMOW J: Where do we see the limitation in the grant of special leave?

MR WALKER: It is the ground of appeal in the draft notice of appeal for which special leave was granted, your Honour.

CRENNAN J: Is this your paragraph 57 which you are not pressing? That is where the point is in your argument, is it not?

MR WALKER: Yes, it is simply outside our grounds of appeal.

HEYDON J: Would it not be an element of re-exercising a discretion if you – the present position is you have lost on foreign law?

MR WALKER: Now, your Honours will recall how I put it. We go back and see that the trial judge put together all the so-called connecting factors – the Court of Appeal does not seem to have departed from his Honour in that regard – and said, well, without choice of law, that is not going to be enough, no stay. So we say, and I hope not too neatly, it seems to be logical, well, if that is not a disturbed view or that is not a view that this Court would disagree with, if we are right on choice of law, then the situation is straightforward for this Court without, as it were, having to do things from the ground up. It can observe that that was not a sufficient position for there to be a stay.

HAYNE J: But can I just understand, if you fail in demonstration of the ground of appeal at 803 - - -

MR WALKER: Yes. That is my only ground.

HAYNE J: You fail, in particular, if you do not show wrong choice of law.

MR WALKER: That is why I hope I made it clear in my opening this morning, this all depends on wrong choice of law. That is the way it turns out, your Honour. Your Honours, could I come to the next point in relation to the so-called pre-existing relationship or the contract point. It is not the case, with respect, that the way Justice Sheller dealt with this matter in Putt’s Case casts any adverse light on the way in which the case is pleaded and upon which the stay was adjudicated. So much is crystal clear from Justice Sheller’s appreciation of the radical distinction between the case before him and CSR v Wren.

Could I take your Honours in 43 NSWLR 554 to page 579 where you will see between about letters E and G a paraphrase of the nature of the case which had been put in Putt and you will see that is what I will call “corporate dealings”. They are head office dealings. It had to do with the defendants influencing or controlling the employees “board of directors so that it could be said that” et cetera “complied with requests and obeyed instructions”. There is not the direct link to the employees at all.

His Honour, understandably, therefore, at letter G – and I say this about the way in which the issue had been joined and argued in that case – that that seemed to be, notwithstanding Mr Jackson’s protestations to the contrary, really, the shareholding control. Hence, of course, the importance of Salomon v Salomon, et cetera, and, with great respect, we were joined with our learned fiend in commending the learned discussion but, with respect, it does not matter for this case because when one passes over the learning to page 583 between letter C and D, your Honours will see the distinction between CSR v Wren and Putt was very clear to Justice Sheller. I will not read it but your Honours will see just below letter D:

They, as employees of CSR, directed or controlled the system of work and the working conditions on the factory floor.

That is the resemblance between CSR v Wren and our case. The work of Tasman’s employees was managed, controlled and directed by Tenon. It is not an influence at a board level, it is not an inference by, as I say, the explicit or implicit threat to convene an EGM and change the directors. In our submission, there is absolutely nothing in that point which in any event is not really an issue before this Court. It may or may not be a defence point, but it is not a point which was appropriate to be dealt with on a stay. It is not found in any of the reasons below. There are no facts to bring this case within Putt rather than within Wren and the pleading resembles Wren not Putt.

My learned friend took a point about paragraph 7 of the pleading in order to locate the wrongdoing in New Zealand because that, it is to be supposed, is where corporate knowledge was. Of course knowledge is not necessary for the liability, although it may be necessary or useful for exemplary damages. Elsewhere in the pleading your Honours will have seen the familiar formula “knew or ought to have known” with respect to risks and the particulars under paragraph 10 do include explicitly failures to investigate conditions in Belgium and Malaysia. I instance in particular paragraphs (e), (o) and (p) of the particulars under paragraph 10.

My learned friend said a number of times that this case was really like Voth in order to say it was not really an omission case. There are a number of ways, no doubt, of reading Voth. May we respectfully suggest that at 171 CLR 568 point 9 what their Honours are saying, introduced by the word “strictly”, is that that was an omission case and that is how they proceeded to deal with it and that is why the famous discussion about omissions and the impossibility of locating them, but the need to do so in law, then follows. So, yes, it is like Voth but, no, it is an omission case.

Had the pre-existing relationship, being the so-called contract, whether by way of a so-called accessory choice of law rule or not, had that been the proper approach of the common law to the location of wrongs in cases like this, it is in fact difficult to understand why in Neilson the proper law was China because in Neilson there was a contract entered into, probably in Victoria, and Mrs Neilson had entered into an engagement to Act as a personal assistant. In our submission, that pre-existing relationship, accompanying spouse, herself with a job to do, going to China under a contract, which of course provided the accommodation as well as the work, it never occurred to anybody, least of all those appearing for Mrs Neilson.

Similarly in Pfeiffer. In Pfeiffer the pre-existing relationship, the contract of employment, was in ACT, but it did not occur, certainly to those arguing it, but there is no trace of it in the reasons, it did not occur that that was, therefore, a wrong which was committed in the ACT rather than New South Wales. Pfeiffer presented the vehicle it did for the change of law under the influence of the Constitution which it did precisely because the place of the wrong was New South Wales, in other words, not the place of the forum which was ACT.

My learned friend refers to the problem of the so-called gap. Your Honours will have noticed another gap that is there is no mention of that at first instance or in the Court of Appeal. It is not a matter that was pressed upon either of the courts at all. In our submission, it is of great significance that a matter of that kind which has to do with the difficulty of joining a company about which the evidence was that it had somehow been amalgamated into or merged with something Norwegian, it is of significance that my friend does not rely upon any actual evidence, as opposed to speculation concerning any difficulties that there might be in joining that company.

Of course, bearing in mind that once upon a time they were holding company and subsidiary, there were other speculations that could be offered and ought to await the event, such as the same insurer.

HEYDON J: When the subsidiary was sold, did that event take place after the institution of these proceedings?

MR WALKER: No.

HEYDON J: It was sold before the proceedings began?

MR WALKER: I am not quite sure that “sold” is technically the right expression, but when it passed from being a subsidiary I think was considerably before these proceedings were commenced.

HAYNE J: It is 30 July 2000. See 294, paragraph 21 and it is described as a sale of the paper division.

MR WALKER: Yes, but as your Honour appreciates, sale of a paper division - - -

HAYNE J: Including Tasman.

MR WALKER: There are lots of ways in which that can be done. I do not that we are simply talking about sale of shareholding, it does not matter if we are or not.

HAYNE J: Tasman became via a series of amalgamations and name changes, the Norwegian named company.

MR WALKER: Yes. There has been reference made in relation to the nature of mesothelioma and its causation by asbestos inhalation to a number of cases, including Saunders and Vero in the New South Wales Court of Appeal. Each of them, both Saunders back in 11 NSWLR and Vero, which is too recent to be in any reports, concern insurance indemnity clauses and their application. There are, as my friend says, some difficulties yet to be confronted concerning not only different defendants but different policy periods.

If one looks at 11 NSWLR, pages 376 and following in the reasons of Mr Justice Mahoney, your Honours will there see some discussion, including extended quotation of medical evidence about the nature of mesothelioma and its causation. It does not at all justify seeing an injury having been caused upon first inhalation. At page 382 and following there is discussion which, in our submission, certainly places the suffering of mesothelioma as at the time more or less shortly after it was diagnosed. Those authorities, in our submission, in the insurance context, which is very clear from pages 382 and following of Saunders, have nothing to assist in the present case.

Neither does the accessory choice of law rule as a doctrine. Our learned friends have given in their written submissions citations from the late Dr Nygh’s book Autonomy in International Contracts (1999). Lamentably we do not have anything more up to date from that learned author on the point, but it is significant, we would submit, that at page 240 Dr Nygh, his Honour as he once was, commences a discussion which scarcely sees this as what might be called a universal or universally attractive doctrine. He refers to its rather uncertain status both judicially generally speaking and in particular in relation to the common law. Page 243 of that book, towards the foot of the page, it promisingly starts:

The concept as such is unknown in the common law.

In our submission, the whole of that discussion starting at page 240 and going through to 249, your Honours may find useful, but only with respect to note that as a doctrine it is impossible to fit into lex loci delicti as the choice of law rule. It is too large a matter to be sneaked in, if I may put it that way, or crammed into that component of lex loci delicti which is how do you locate an omission or how do you locate an Act? It is far more substantive than that and in effect it is an alternative to be applied in certain cases, cases of so-called pre-existing or other relationships.

In our submission, the difficulties which it gives rise to do attract the description that Dr Nygh himself quotes from Professor Kahn-Freund at page 249 of the passage where he referred to the “morbid intellectual attraction” of arguments about that topic. In our submission, whether they be morbid or not, the fact is they are alien to that which is required by the simplicity and certainty and lack of flexible exception of our lex loci delicti and for those reasons, your Honours, however interested in a comparative sense, would not find that there is any material which may usefully be quarried from that mass of material.

The Chief Justice asked my learned friend for the purpose in the sense of a purposive approach of the so-called substance test. We would essay this answer to that question. The purpose of the substance test is to locate the wrong where parties’ expectations and the interests of certainty of the law, using primarily the factor of geography and focusing on the place where the plaintiff’s relevant interests have been infringed – and I have lost the grammar, the syntax – the purpose of that test is to locate it, as I say, using that expectation, serving that interest of certainty, observing the primacy of geography and locating ultimately the wrong where the plaintiff’s relevant interests have been infringed.

The purpose of that is, in our submission, is to provide a satisfying answer to the question, where is a wrong located when a non-legal mind may be able to think of or catalogue a number of different places that the law requires one choice, and the word “substance” is a small word with a lot packed into it, which in private international law, in our submission, brings up those factors which we have put into that answer.

Finally, in relation to the notice of contention, there has not been any attempt to meet any of the suggestions in John’s Case. There has not been any identification of any more fundamental doctrine or principle, the better connection with which requires a change in Voth, to pick up the suggestion made in Imbree v McNeilly [2008] HCA 40 at paragraph 45. My friend has already noted CSR v Cigna and Henry v Henry, but of course they are just two of the cases which would also need in part to be overruled because of their building upon the approach in Voth.

The others are Zhang [2002] HCA 10; 210 CLR 491 at 502 to 503, paragraphs 21, 24 and 25; in Gutnick 210 CLR 575 at 596, paragraph 9, evocatively headed “principles”. In other words, the resolution of the problem, according to Gutnick, carried out in Voth was not some grubby compromise. It was a selection of principle. In other words the formulae had to be selected so that a persuasive justification would be provided for a stay which after all was an interruption or cessation of a court otherwise doing what a court is there to do as an arm of government, namely, resolve disputes, and before you refuse to exercise jurisdiction there must be something to do with the administration of justice which would justify not doing it and in a word that is supplied by injustice. If injustice is threatened in the explained abuse of process sense that Oceanic and Voth provide then that is the principle.

In Schultz [2004] HCA 61; 221 CLR 400 at 419 to 420, in the reasons of the minority, paragraphs 10 and 11 provide an explanation by way of contrast with cross-vesting that your Honour Justice Gummow noted, we think, with respect, by way of approval and your Honour Justice Hayne agreeing with Justice Gummow. Also at page 423 of Schultz, again the minority, paragraph 20, there is, what might be called another view of the merits of Spiliada, which after all is the pole to which our learned friend’s notice of contention seeks to attract the court.

In our submission, when one looks at those discussions in this Court it is clear that there is a most fundamental principle at stake in relation to the way in which the formula is expressed in Voth and it has to do with whether the arm of government peculiarly set apart, impartially to administer justice by dissolving disputes, will, as it were, always be open for business, that access will be available for justice, that it will not be discretionary except in those cases where the nature of the task requires the discretion to be exercised against jurisdiction. In order to be required or to justify not exercising jurisdiction, something in the nature of injustice must be threatened and that has been repeatedly the very word found in the explanations of the principle and in those authorities.

In those circumstances it is, with respect quite impossible to say that anything has changed, anything has altered to require this Court to reconsider the matter. Certainty in our submission, urges to the contrary.

Further, if there be misapplication of Voth, one thing is for sure, if I may say so with respect, it was not in Zhang. It cannot be an argument that says Zhang misapplied Voth, with respect. Zhang is part of the same body of case law by which one understands the test. It is for those reasons, in our submission, that there ought to be a refusal to entertain a reopening of Voth, but, if so, your Honours should, in our submission, vindicate the position reached in that and the following decisions. May it please the Court.

FRENCH CJ: Thank you, Mr Walker. The Court will reserve its decision. The Court will now adjourn to 10.15 am on Tuesday, 23 September.

AT 4.34 PM THE MATTER WAS ADJOURNED