Facts: The plaintiff (Pl) suffered malignant mesothelioma and asbestos-related injuries in the course of employment in Malaysia and Belgium (allegedly was exposed to asbestos during visits to factories in Belgium & Malaysia). Pl brought claims against the NZ company, the defendant (D), he was employed by in the VIC Supreme Court. D applied for a permanent stay or summary dismissal of the proceedings.It contended that the alleged negligence had occurred in NZ (therefore, the law to be applied was the law of NZ, and the no-fault compensation scheme operating there barred a claim for common law negligence).
Held (first instance): The primary judge ordered the proceedings be permanently stayed because VIC was a clearly inappropriate forum since most witnesses and documents were in NZ and the governing law was that of NZ.
Held (Court of Appeal): Dismissed the appeal and found no error of law in the primary judge's decision.
Held (HCA): Allowed the appeal. The VIC Court was not FNC. The primary judge's error lay in attributing determinative weight to a finding that the lex causae was the law of NZ. The appellate court also erred in deciding that the lex causae was shown to be the law of NZ. Rather the Court of Appeal should have held that it was not possible to decide what would be the lex causae (facts unclear, not possible to determine on material available). Even if the lex causae was later shown to be NZ law & the fact that evidence would be located it NZ, it still did NOT demonstrate that VIC was a clearly inappropriate forum.