Robinson v Studorp Ltd

This interesting decision of Jackson J concerned the question of whether or not an action should be stayed on the grounds that the Supreme Court of Queensland was “a clearly inappropriate forum”. As his Honour identified, a stay on that ground was based on the underlying principal that it may be oppressive, vexatious or an abuse of process to continue proceedings in a Court even if it is within the usual territorial jurisdiction of that Court. The plaintiff suffered asbestos related disease which was caused by exposure to asbestos which, he claimed, occurred in New Zealand where he frequently accompanied his father who was a builder and who worked with asbestos related products. The defendant was formerly James Hardie & Coy Pty Ltd. The plaintiff had lived on the Tweed Coast for a number of years. Proceedings had been commenced in the Dust and Diseases Tribunal of New South Wales although those proceedings had not been pursued on the basis of indications that the NSW DDT was an inappropriate forum. His Honour’s reasons contain an interesting and useful discussion of the relationship between the Australian Common Law and that of New Zealand where his Honour identifies the close connection between the two. That issue was relevant to the question of whether or not the Queensland Supreme Court would have any difficulty in applying the New Zealand law of negligence. In reaching his conclusions his Honour considered at length the Trans-Tasman Proceedings Act 2010 (Cth) and the corresponding New Zealand Act on the basis that it will come into effect in mid October 2013 and that it will regulate the proceedings if the matter were to be heard here. His Honour also considered the difficult issue of whether or not because the lex causa was the law of New Zealand, the ascertaining of the applicable principles would render the Queensland Supreme Court inappropriate. On this issue his Honour’s reasons contains a very helpful analysis of the New Zealand law of negligence and helpfully identifies those matters which are relevant to the determination of whether or not the “lex causa issue” should have substantial effect in any “forum non conveniens” determination.