[2017] QDC 124

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE RYRIE

No 4540 of 2016

DORNAN	Applicant

and

PACIFIC MANPOWER (PNG) LIMITED	Respondent

BRISBANE

2.27 PM, THURSDAY, 6 APRIL 2017

JUDGMENT

DELIVERED EX TEMPORE

. 

HER HONOUR:   This is the matter that I heard this morning of which I’ll now provide my reasons for decision in the matter of Dornan against Pacific Manpower (PNG) Limited 4540 of ’16.  The claimant’s statement of claim was filed in this Court on the 17th of November 2016, the plaintiff commenced this proceeding against the defendant for injury, loss and damages which, he says, was caused by the negligence, or, alternatively, the breach of contract of employment offered by the defendant.  The date of the alleged incident giving rise to the injury the plaintiff says he suffered when working over in PNG was the 10th of August 2011.  At that time, the plaintiff in his pleading says that he was at home and suffered a serious injury as a consequence of having fallen down a wet slope outside of the accommodation unit shower which was then very slippery.  That’s paragraph 6 of the pleading.

By way of this application, the applicant-defendant, hereinafter referred to as the applicant, seeks an order that the proceeding be set aside or permanently stayed pursuant to rule 16 of the Uniform Civil Procedure Rules.  The particulars which form the basis for disputing the jurisdiction of this Court are set out in paragraph 3 of exhibit 1, which I marked in respect of the applicant-defendant’s written submissions, and those grounds were confirmed as the ones relied upon here insofar as the conditional notice of intention to defend which had been filed by the applicant.  Of course, counsel appearing for the applicant, Ms McNeil, indicated that she also, not surprisingly, relied on all the other material and submissions made in the exhibit number 1.  As helpfully summarised by Justice Daubney in Bradley v Placements (PNG) Limited [2014] QSC 16 at paragraph 4, the relevant question on an application such as this is:

…to determine what is in the interests of all the parties and for the ends of justice, and, in that context, a long-established and the relevant question is whether the defendant has persuaded this Court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal (in this case, the courts of Papua New Guinea), this Court is a clearly inappropriate forum for the determination of the dispute.

As Justice Daubney pointed out, it needs to be remembered on an application such as this that:

…the relevant question for present purposes is not whether Papua New Guinea is an appropriate, or even the more appropriate, jurisdiction in which to bring the present proceedings.

Having regard to that guidance provided by Justice Daubney in relation to the relevant principles, and having regard to the authorities as provided helpfully and set out by counsel for the appellant in the outline marked exhibit 1, insofar as Oceanic Sun Line Shipping Company v Fay, I turn now to the following factors that have been stated and relied upon by the applicant in support of its submission that this Court is clearly an inappropriate forum.  Those factors have been helpfully set out at paragraph 10 of exhibit number 1 for consideration.  Oral submissions were received 
in addition to that exhibit by Ms McNeil of counsel, who supplemented, as it were, her comprehensive outline in writing.

While it is true that the incident occurred in Papua New Guinea and the law of Papua New Guinea will apply in any event, including the fact that the plaintiff is still able to commence a claim for personal injuries in Papua New Guinea because its limitation period is still yet to expire, those factors, taken either alone or together, do not, in my mind, persuade me that it follows this Court is the inappropriate forum.  It is accepted that the defendant company is and has always been a resident company of PNG with its registered office in that country.  It’s also accepted by me the company has no offices in Australia, only conducts its business in PNG, and has no assets here.  It’s certainly not a foreign company that’s registered at all with any connection to Australia.  While all of those factors may well be true, those matters, again, in my mind, do not persuade me that it follows that this Court is therefore an inappropriate forum.  Put another way, that PNG would therefore be more the more appropriate forum.

The phrase insofar as what means the forum within which the action has the most real and substantial connection Voth at 557.  The connecting factors in this sense include factors affecting convenience or expense, such availability of witnesses, and factors such as the law governing the relevant transaction.  These principles were discussed in a case by the Court of Appeal in Placer (PNG) Proprietary Limited v Anderson [1997] QCA 74 at 2.  In this regard, it’s relevant, to bear in mind that in this case, the alleged breach of contract or negligence that gave rise to the injury occurring is said to have occurred in PNG.

While, prima facie, that may well raise a suggestion that a Papua New Guinea court would therefore be the more natural or more appropriate forum because of that fact, coupled with, as I’ve said, a company that solely has its connection with PNG, insofar as its business, registered office and other things I’ve already referred to, it is notable here, nevertheless, that the plaintiff has given evidence by affidavit that he was in fact a resident of Queensland and was in fact working here at the time his contract of employment which was negotiated also here occurred with the said company.

Those negotiations took place, as I understand the affidavit evidence, over approximately four months, at which time, when he finally signed the contract, it was negotiated that while he was employed in Papua New Guinea by the said company, it was only on a fly-in fly-out basis – eight weeks in, two weeks out – in other words, eight weeks to Papua New Guinea with two weeks returning to Australia.  In this regard, the plaintiff deposed that he also kept his necessary accommodation in Queensland for that purpose, which means at all times he did not become solely “disconnected” from Queensland.

The plaintiff has also deposed that all of his medical treatment, bar seeing the local doctor in Lae, the day after the accident is said to have occurred, and before flying home to Australia, that he has since received medical treatment here in Queensland, 
has received physio and, indeed, surgical intervention by an orthopaedic surgeon, Dr Brazel.  It is also relevant that the plaintiff has never since returned to Papua New Guinea, as his employment with the company was subsequently terminated, and he has not returned since.  Another fact is that the plaintiff also did not utilise the workers compensation scheme of Papua New Guinea.  As he says, he did not know he could, though later says in his affidavit that he had discussed with his employer the possibility of doing so, but was in fact dissuaded by that employer’s representative, Mr Stanfield.  As Justice Daubney noted in Bradley, even if the plaintiff had made a claim on that statutory scheme, which appears that none is suggested here, it would mean nothing more than the fact that he was exercising his entitlements under that country’s relevant legislation.

As I understood the written submissions and the oral submissions that were made to me in the course of this application, the primary and more significant contentions made by the applicant in this case, in my mind, appear to be twofold.  The first of those is the factual dispute that exists between the parties regarding how the plaintiff actually suffered his injuries and in what circumstances, and, secondly, in number of the witnesses that may well need to be called by the defendant in answering the plaintiff’s claim.  In relation to the first point, which is whether there is a significant factual dispute between the parties or not, the applicant submits that this is significant in assisting this Court in determining that, as a consequence of that significant dispute existing, it will necessitate the defendant having to call a number of witnesses, all of whom reside in PNG.

In that regard, counsel for the applicant indicated that, having regard to the fact that they are where they are and other matters I’ll outline shortly, the conduct of the proceedings, if required, to take place here in Queensland will therefore be unfairly burdensome, and will prejudice and damage the defendant in its ability to fairly defend proceedings, and that any continuation of the proceedings in this forum would clearly be oppressive.  For those reasons, it is submitted on balance that it should be found that the applicant, in this case the defendant, would be at significant disadvantage in defending the proceedings in Queensland, as compared to in PNG, in that, as asserted, it would be oppressive to the defendant in all the circumstances.

I’ll now address that primary submission made in respect of what I saw as the two significant contentions made in that regard.  The first of those is whether there is a factual dispute between the parties or not as to how the accident occurred.  That in my mind, is going to be the subject for determination before a trial Judge.  That position does not change, regardless of whether it’s heard here or in Papua New Guinea.  As such, that factor alone is not in itself persuasive.  It was further argued on behalf of the applicant that most of the witnesses are resident of PNG, most likely do not have passports, and most likely will be in need of translator or translators, and may well need to travel to Australia, as well as those translators to assist.

In this regard, the evidence that is available to support such a submission is at best “speculative”.  Mr Stanfield, group general manager of the defendant company, in his affidavit document 8, says as much in his own evidence.  Whether some of those 
witnesses are in fact resident of PNG is not in itself determinative.  There is no evidence before me simply because they are residents that the relevant witnesses can’t speak or even understand English sufficiently enough to give evidence, and, secondly, even if some of the witnesses are in fact citizens of PNG, there is no evidence before me that satisfies me that they will also need translators and the like, as suggested on behalf of the applicant, to assist them in giving their evidence.

Indeed, in that regard, as I’ve already indicated, Mr Stanfield only deposes that he believes, but doesn’t know for sure, if they speak fluent English, whether certain witnesses will need passports, whether certain witnesses even will need the assistance of translators or otherwise.  As such, it’s difficult to draw a conclusion that it should automatically follow that simply because they are either resident in PNG or indeed citizens of that country that they will need a translator or translators to assist in their evidence.  In this regard, I refer particularly to paragraphs 37 and 38 of Mr Stanfield’s affidavit, document 8.  It is further noted by me that the plaintiff in any event says he would be happy to accept their evidence by telephone or by audio link, a factor which our court rules here provide for in any event, and to accede to their evidence being received by this Court in that manner.  If in fact that course was adopted by the Queensland Court, it follows, therefore, that any costs associated with flying witnesses, getting accommodation for them during the trial, bringing translators over and the like would be obviated.  

It was also argued by the applicant that even if in the event the Court was of the view that telephone link and/or audiovisual link was considered by this Court to be an appropriate way to receive the evidence of the witnesses who are currently in PNG, if the trial was to take place in this forum, that it still, nevertheless, it was submitted, would cause prejudice to the defendant and would be oppressive and unfairly burdensome.  As I understood the submissions made on this point, that was because, as deposed to by Mr Stanfield, in his experience the various connections between PNG and Queensland can be slow, unreliable and subject to interference which may well then impact, as he submitted in his affidavit, on this Court’s ability to assess a witness under those circumstances as to demeanour and/or credibility which would be greatly impaired.

It was also submitted orally by counsel for the applicant on this point that, coupled with that fact and the fact that a translation may well be required in respect of some of the witnesses’ evidence, under those circumstances combined, it would result in it being unfairly burdensome, prejudicial and damaging to the defendant, insofar as the Court’s ability to assess the credibility of witnesses and the defendant’s own ability to defend the proceedings in those circumstances.  It was submitted that, therefore, the case would be better served being heard in the PNG court, especially where the case involves significant factual dispute between the parties as to how the accident even actually occurred, and matters of credit looming large, as they do in this case.

The submissions made on this point, however, in my mind, overlook the following.  Firstly, the evidence is taken and can be taken under own rules, which allow for and provide for evidence to be received by telephone and audio link from overseas or 
even within our own country, particularly where tyranny of distance and/or cost are involved.  That is not an uncommon occurrence now in this Court.  Secondly, it is not at all uncommon for connections to be slow or erratic, both when taking evidence from an overseas witness, or even here, for that matter, regardless of where that evidence is being received by the Court.

Thirdly, issues of credit and demeanour of witnesses, while I agree are significantly relevant where there’s been significant dispute between parties, as such is the case here, are not necessarily impaired because of any slow connection and the like, as stated, between the receipt of the evidence by telephone or audio link.  In my mind, any trial Judge will be able to make allowances for that fact if it becomes an eventuality throughout the trial.  A trial Judge will commonly deal with that and make allowances in respect of it when making any assessment in respect of demeanour and/or credibility of witnesses.

Fourthly, trial Judges are commonly called upon to make findings as to demeanour and credit even where that witness or witnesses’ evidence is being translated, which well may be the case here, though it is not entirely definitive given the lack of evidence here.  In any event, the problem in relation to translation of any witness’s evidence and any findings by a trial Judge being called upon to make findings in respect of the credit of that particular witness in regards to the evidence they give or as to their demeanour will be the same, regardless of in what forum this proceeding is heard if their evidence is to be translated.

Fifthly, the onus is always on the plaintiff to prove its case, if it can, regardless of which Court it’s before.  In this regard, without going into the actual merits of this case, the evidence which the applicant says it intends to call in rebuttal is primarily directed towards how the actual accident actually occurred on the evening in question.  In my mind, it will nevertheless still be relatively of short compass.  The plaintiff himself will give evidence, and, presumably, evidence may well be called from the alleged girlfriend, Taita, T-a-i-t-a, and her friend, who is said to have also been present, Rosalind Garrow, in addition, perhaps, to security guards who may be able to provide some incidental evidence as well.  I see no reason, in light of the evidence, that would be given on that point by the various witnesses stated that any trial Judge, in my mind, would not be able to make the necessary findings of credit, even if those witnesses primarily were giving it by phone or, in particular, by audio link.

The other evidence proposed is in respect of other various statements that are said to have been made by the plaintiff to other witnesses about the incident.  That evidence, in my mind, will need to be considered by a trial Judge sitting here, or, indeed, a trial Judge sitting in PNG.  That is the case regardless of whether or not witnesses are requiring of translation or not in providing their evidence.  Indeed, on my reading of it, and the affidavit material provided, some of those witnesses will not even require any translation, particularly Mr Stanfield, who will be a significant witness, Belinda Edwards and/or David Meek.

The other points raised for consideration on this application on the question of whether or not this is an inappropriate forum or indeed it would be oppressive to allow the continuation of this proceeding to take place in this forum are regarding questions of prejudice to the applicant.  That included the inability of Queensland Courts to compel PNG witnesses to attend to give evidence in proceedings and/or third party disclosure and documents and the like originating in PNG being ordered to be disclosed by order of a Queensland Court.  In this regard, the applicant referred to Mr Douglas Siminji, document 7, in particular, page 4.  I’ve had regard to the affidavit, and a careful reading of it causes me to consider that Mr Siminji himself was not conclusive of any fact as it related to the question of subpoenas and the like.  As he stated, in fact, at paragraph 14, it was unclear even to him what the law was in that regard.

Bearing in mind that the applicant has the onus of proof in bringing the requisite evidence before me, it is difficult, therefore, to place too much weight on the submission made on behalf of the applicant, which was to the effect that that evidence provided by Mr Siminji shows that disclosure for any orders made or subpoenas that might well be issued to compel witnesses to attend, if the proceeding was to continue here, is definitive and in the defendant’s favour.  I cannot make that conclusion.  Regarding any third party disclosure upon which a relevant party in PNG regarding this state’s ability to order such, it is submitted by the applicant that the subject accident and where it took place is relevant, as is the passage of time that has now lapsed.

In this regard, I note a photograph of the subject stairs which demonstrates a wooden floor and stairs without a balustrade.  The evidence is that there is a coloured photograph that had been taken by the plaintiff at the relevant time, or at least close to the requisite accident.  That is relevant, because, given that the major argument that, as I understood the submissions, both in writing and orally, were made, and one which will be mounted at trial by the defendant, is that there will be a significant dispute regarding how the plaintiff’s injury actually occurred, that is, was it during any altercation involving two girls and himself which caused him to be pushed down the stairs by one of them, versus whether it was simply a slip and fall case, as he asserts, as a consequence a slippery floor and the like.

In that respect, the applicant’s submission that the passage of time, insofar as where the accident occurred, becomes less significant, particularly, as I’ve indicated, that the written submissions coupled with the oral submissions made suggest that the major argument and point of defence that will be mounted at trial by the defendant by the calling of the various witnesses to address whether or not the injury occurred as the plaintiff stated, or rather that he is simply not telling the truth, and it actually occurred as a result of him simply have a fight involving two other women.

Accordingly, any expert witness that might well be engaged by the defendant will only in those circumstances become necessary if the defendant intends to further dispute that the plaintiff’s fall was only as a result of him being involved in a slip and fall case, as he asserts.  Even if it’s accepted that the defendant may well nevertheless 
still wish to engage an expert for that purpose to investigate, as it were, any slip and fall case which is currently asserted by the plaintiff, that expert, in my mind, can still be engaged in PNG to carry out any such inspection and/or to also have regard to the state of the premises as they were in forming any opinion.

It’s important for me to note at this juncture that there simply is no evidence, even given the passage of time, now before me and between when the accident is said to have occurred and to when the point at which the claim was filed in this Court that supports a finding being made by me that the accommodation has in fact changed in any way.  Mr Stanfield says that he is not aware if it has, but also says that he is aware and was aware of the state of the relevant stairs, as he had visited the accommodation a lot in any event.

In light of the lack of evidence to suggest that the accommodation may well have in fact now actually changed, it is difficult, then, to accept that an expert may well be unable to provide an opinion and/or, put another way, that the defendant, due to the passage of time, would be prejudiced in obtaining the necessary expert report.  It also should be said that any expert who is able to provide a report will be able to also provide his or her evidence by telephone and/or audio link, a fact not uncommon for experts in any jurisdiction – to do so from PNG if in fact one is engaged there.

The other witnesses will also include the doctors who provided medical assistance.  They include two doctors who are resident here, and, presumably, a doctor that was seen by the plaintiff the next day, the 11th of August 2011, in Lae.  The plaintiff, naturally, will be required to secure that evidence at trial, regardless of which forum, if he wishes to rely on it.  In this case, having regard to all of the factors I’ve referred to, and, in particular, that the medical treatment in respect of the injury which the plaintiff says he has suffered has been performed here in Australia, other than the one consultation with a doctor in Lae before he flew out, plus the fact that the plaintiff has and always has remained a resident in Australia and has and always has negotiated employment only in PNG as a fly-in fly-out basis, I am of the view, having regard to all of the matters that I have also already outlined, that I am not satisfied that allowing this proceeding to remain to be heard in this Court would amount to being oppressive or vexatious to the defendant.

It is for the applicant-defendant to satisfy me that the pursuit of this proceeding by the plaintiff in this Court would be oppressive or vexatious, or, as counsel put it, would cause an unfairly burdensome prejudicial or damaging result to the defendant in its ability to fairly defend the proceedings if the continuation of these proceedings were allowed to remain here.  As already referred to by me, the issues that I have discussed point to the desirability of this proceeding continuing in this Court.

I should, for the purpose of finality, just address a couple of things that were raised.  I do not have the benefit of the transcript, but I made comprehensive notes regardless.  Counsel for the applicant-defendant referred to certain authorities that are being relied upon by the plaintiff-respondent, and rightly pointed out that those cases were all factually different and that the fact that cases are factually different or 
are different insofar as the number of witnesses that were to be called or the nature of the dispute involved and the like, as referred to by counsel before me on behalf of the applicant, is not definitive in a determination of what I need to determine here.  As pointed out, again, by Justice Daubney at paragraph 4 in Bradley, as he says, the relevant question is whether the applicant-defendant has persuaded this Court that, having regard to the circumstances of the particular case, which, in effect, means the facts before me in relation to this case.

Counsel also submitted that because the plaintiff didn’t depose himself in his affidavit that he wouldn’t receive any justice if this matter was heard in PNG – is, in my mind, of no consequence.  As pointed out by Justice Daubney in Bradley, the availability of a foreign tribunal in this case, namely, the courts of Papua New Guinea, is only one factor and that ultimately what has to be shown is that this Court is clearly an inappropriate forum for the determination of the dispute.  I’m not so satisfied, having regard to what I have set out in great detail, and to which I have been referred to as the factors that are relevant for the purpose of the determination of the relevant question by the Defendant that Queensland is clearly an inappropriate forum, as asserted by the applicant here.

I am satisfied, having regard to all the matters that have been put forward, that some of the factors might well indicate that the court of Papua New Guinea may well still be a forum still available, but, as I’ve already indicated, that’s not the relevant test.  None of the matters that have been put to me or referred to me satisfy me that if the plaintiff ultimately was allowed to continue to pursue his proceedings before this Court it would be oppressive or vexatious to the defendant, having regard to the plaintiff with respect to evidence relating to his connection to this state, the way that he was working in Papua New Guinea to start with, the evidence relating to his medical treatment continuing and having been primarily given here to him, and the fact that he has not returned to PNG, point to the desirability of this proceeding continuing in this Court, even notwithstanding that there will be a significant factual dispute between the parties as to actually how the accident occurred which ultimately gave rise to the injury the plaintiff says he has suffered.

For the reasons that I have given, I dismiss the application.  Costs normally follow the event, and, in this case, the application having now being dismissed, unless the parties wish to be heard, I make the usual order, namely, that the defendant pay the plaintiff’s costs of this application, assessed on the standard basis.  Those are my reasons for decision.

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