Barker v International Education Agency of Papua New Guinea Ltd - [2023] SADC 11

District Court of South Australia
(Civil: Interlocutory Application)
BARKER v INTERNATIONAL EDUCATION AGENCY OF PAPUA NEW GUINEA LTD
[2023] SADC 11
Decision of her Honour Judge Thomas
8 February 2023
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
PRIVATE INTERNATIONAL LAW - RESTRAINT OF PROCEEDINGS - OF LOCAL PROCEEDINGS: CLEARLY INAPPROPRIATE FORUM - GENERALLY
The Respondent seeks dismissal or a permanent stay of the Applicant’s claim for damages for breach of contract on forum non conveniens grounds. The Applicant is domiciled in Adelaide, South Australia. He was employed by the Respondent under a written contract made in Australia but performed and allegedly terminated unlawfully in Papua New Guinea prematurely in December 2015. The Applicant claims damages for the remaining two years of his contract term plus a 20% termination benefit.
Held: Application dismissed. The Respondent has not shown that this Court is a clearly inappropriate forum having regard to the legal issues likely to be determined at trial and the circumstances disclosed by the material before the Court. The absence of evidence that there is an alternative forum still available in Papua New Guinea for the Applicant to bring his claim is a compelling factor, favouring refusal of the Respondent’s application.
Uniform Civil Rules 2020 (SA) r 3.1, r 4(1) and (2)(b) of Schedule 1, r 67.6(7); Supreme Court Civil Rules 2006 (SA) r 40C(2)(b), r 100(2)(c); District Court Civil Rules 2006 (SA) r 40C(2)(b), r 100(2)(c); Evidence Act 1929 (SA) s 59E(4), s 63, referred to.
Agri-Best Aust Pty Ltd v Lodhias Ltd & Ors [2005] SADC 139; Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; Henry v Henry (1996) 185 CLR 571; Moldauer v Constellation Brands Inc [2013] SASC 38; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; Puttick v Tenon Ltd (2008) 238 CLR 265; Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491; Spiliada Maritime Corporation v Cansulex [1987] AC 460; Strohschneider v Ehlert and the Estate of Ehlert [2008] SADC 54; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, considered.

BARKER v INTERNATIONAL EDUCATION AGENCY OF
PAPUA NEW GUINEA LTD

[2023] SADC 11
Civil
Overview

The Respondent, by interlocutory application dated 20 June 2022,[1] seeks orders that this proceeding be dismissed or permanently stayed on the basis that this Court not assume jurisdiction because it is an inappropriate forum for trial of the proceeding.
[1] FDN 6.
In support of its application, the Respondent relies on two affidavits made by its local solicitors.[2] In opposing it, the Applicant relies on his own affidavit[3] and two affidavits made by his solicitor.[4] There is no affidavit evidence before the Court from any former or current employee or director of the Respondent.
[2]    Affidavit of Peter Anthony Healey made on 17 June 2022 (FDN 7) (Healey Affidavit) and the affidavit of Katherine Jane Draper made on 5 September 2022 (FDN 14).
[3]    Affidavit of Brenton Philip Barker made on 15 August 2022 (FDN 11) (Barker Affidavit).
[4]    Affidavit of Stephen Peter White made on 19 August 2022 (FDN 12) (First White Affidavit) and the affidavit of Stephen Peter White made on 14 September 2022 (FDN 15) (Second White Affidavit).
The result turns on the application to the facts of this case of the ‘clearly inappropriate forum’ test adopted in Voth v Manildra Flour Mills Pty Ltd[5] as restated in a number of further High Court decisions and subsequently applied by Australian courts for over 30 years.[6]
[5] (1990) 171 CLR 538 at 539.
[6] Henry v Henry (1996) 185 CLR 571. The High Court declined the invitation to overrule and restate the Voth test in Puttick v Tenon Ltd (2008) 238 CLR 265 per [28]-[30] and [38]-[42]. In South Australia, see also Moldauer v Constellation Brands Inc [2013] SASC 38; Agri-Best Aust Pty Ltd v Lodhias & Ors [2005] SADC 139; and Strohschneider v Ehlert and the Estate of Ehlert [2008] SADC 54.
For the reasons that follow, having regard to the facts of this case on the limited material before the Court, I decline to dismiss or permanently stay the proceeding on forum non conveniens grounds.
The Proceeding and the Facts
By statement of claim filed on 3 December 2021,[7] the Applicant, Mr Brenton Barker, claims loss and damage of $558,948.84 plus interest and costs for alleged breach by the Respondent of his written employment contract made between the parties in Australia on about 24 September 2014. It is common ground that performance of the Applicant’s contractual obligations and the Respondent’s alleged breach occurred in Papua New Guinea.
[7] FDN 1 (SOC).
The Respondent, International Education Agency of Papua New Guinea Ltd, is a not-for-profit agency registered under the law of Papua New Guinea providing educational services in only Papua New Guinea. It oversees and manages 18 schools and colleges, including a TAFE college (IEA College of TAFE), in Papua New Guinea and does not conduct any business outside Papua New Guinea. It is clearly a substantial organisation in terms of the size of its operations, the number of employees and students and its financial resources.
The Applicant was employed by the Respondent as “TAFE Manager” of IEA College of TAFE in Papua New Guinea for a term commencing 19 January 2015 and ending on 31 December 2017. As such he was responsible for overseeing the Respondent’s TAFE operations in Port Moresby and Mt Hagen, Papua New Guinea. During his employment, the Applicant primarily reported to the Respondent’s then Director of Education, Ms Suzanne Savage, and in part to its board of directors.[8] The Respondent’s Executive Director at all relevant times was Mr Joe Lalie.
[8] Barker Affidavit at [12]; First White Affidavit at [22].
The Applicant is domiciled in Adelaide, South Australia.[9] His position as TAFE Manager was advertised in Australia when the Applicant was working for a statutory authority providing education services in Victoria. He was recruited as an overseas employee from Australia after attending a successful interview in Sydney with Ms Savage.
[9] Second White Affidavit at [4].
The contract is constituted by a formal letter of offer (dated 18 September 2014 that was signed by Ms Savage on behalf of Mr Lalie)[10] and relevant terms and conditions incorporated by express reference.[11] The Applicant accepted the Respondent’s offer of employment on about 24 September 2014 by countersigning the formal letter of offer in either Adelaide or Melbourne and sent it back to the Respondent to Ms Savage in either Sydney or Papua New Guinea.[12]
[10] Exhibit BPB1 to the Barker Affidavit; Exhibit SPW21 to the Second White Affidavit.
[11] Exhibit PH-3 (Exhibit PH-3) to the Healey Affidavit.
[12] Barker Affidavit at [7] and[10]; Second White Affidavit at [5].
During his employment, the Applicant lived in housing provided by the Respondent and performed his duties as an employee entirely in Papua New Guinea.[13] He was paid in Papua New Guinea currency.[14] The Respondent’s obligations included payment of the travel costs from and to Adelaide, Australia for the Applicant and his dependents.[15] This supports the Applicant’s claim of domicile in Adelaide.
[13] Healey Affidavit at [21] and [23].
[14] Ibid at [22].
[15] Exhibit SPW21 to the Second White Affidavit, page 2.
The Applicant alleges that after serving one year of a three-year term, he was required to attend a meeting with Mr Lalie in Port Moresby at short notice on 11 December 2015 at which he was told his employment was being terminated forthwith.[16] The Applicant claims he was never provided with any grounds for his termination, none of the grounds for termination set out in his contract applied,[17] and he was denied procedural fairness.[18]
[16] SOC [10] and [11].
[17] Exhibit PH-3, page 49.
[18] SOC [12]. Barker Affidavit at [13] and [14].
Before the Court is the Respondent’s letter to the Applicant dated 11 December 2015 stating that his employment is discontinued due to non-performance “in nearly all areas as indicated in your probationary report” and referring to its contractual right to terminate on the ground of the school’s “best interest”.[19] The termination letter was copied to Ms Savage, the then Director of Education, to whom the Applicant primarily reported.
[19] Exhibit PH-4 to the Healey Affidavit.
There is no evidence about the parties’ dealings with this letter. The Applicant does not mention it in his affidavit or his statement of claim. The Respondent’s local solicitor merely exhibits it to his affidavit.[20]
[20] Healey Affidavit at [24].
The probationary report prepared in September 2015 by Ms Savage is also before the Court[21] and similarly there is no evidence of the circumstances surrounding it, including, most relevantly, what consideration was given to it by Mr Lalie or the other directors (if any), including Ms Savage’s express recommendation that the Applicant pass probation and his contract be confirmed. What transpired between completion of the probationary report and the Applicant’s termination regarding his performance is unknown save that in August 2022, Ms Savage told the Applicant’s solicitor that she as the Applicant’s line manager did not have an issue with his work performance.[22]
[21] Exhibit SPW20 to the First White Affidavit.
[22] First White Affidavit at [22.3].
Against this background, the Applicant claims the Respondent’s termination of his employment was unlawful and he is entitled to his salary for the remaining two years of his contract term plus a 20% termination benefit.
The Respondent denies the Applicant’s claim. No defence has been filed and the evidence before the Court does not address the basis of the Respondent’s denial of the Applicant’s claim.
The Applicant has engaged local solicitors, who first wrote to the Respondent and put it on notice of the Applicant’s claim by letter dated 24 May 2021.[23] That letter is not before the Court. The Respondent has engaged both Papua New Guinea and local solicitors. The parties’ solicitors have corresponded about the Applicant’s claim. A pre-action meeting was held by video link, with the Applicant and his solicitor present in Adelaide and an unnamed representative of the Respondent in Port Moresby. It was unsuccessful in resolving the disputes between the parties.[24]
[23] First White Affidavit at [3].
[24] Ibid at [6].
Basis of the Application
The Respondent’s application is made under rule 4(2)(b) of Schedule 1, “Service” of the Uniform Civil Rules 2020 (UCR) that provides:
4—Court’s discretion whether to assume jurisdiction
(1)     On application by a person on whom an originating process has been served out of Australia, the Court may dismiss or stay the proceeding or set aside service of the originating process.
(2)     Without limiting subrule (1), the Court may make an order under this rule if satisfied—
(a)      …
(b)     that the Court is an inappropriate forum for the trial of the proceeding;
(c)      …
Rule 4(2)(b) is identical in form to its predecessor in both the Supreme and District Court Civil Rules 2006,[25] as is nearly all of Schedule 1, Part 1 “Service Overseas”.[26]
[25] Rule 40C(2)(b).
[26] SCCR and DCCR Rules 40 to 41L. There are minor differences in nomenclature, cross-referencing and in some detail that is not presently relevant.
Its predecessor rule was adopted in 2016[27] as part of a suite of new rules for service out of Australia[28] as a result of work to harmonise the rules in Australia and New Zealand conducted by the Harmonisation of Rules Committee of the Council of Chief Justices of Australia and New Zealand.[29]
[27] Rule 40C was introduced by District Court Civil Rules 2006 (Amendment No 33) and Supreme Court Civil Rules 2006 (Amendment No 32) and commenced in both courts on 1 September 2016.
[28] It was found in Division 2 [Service out of Australia] in Part 4 [Service of Originating Process] of Chapter 3 [Elements of action at first instance] of both the 2006 District and Supreme Court Civil Rules.
[29] Martin Davies et al, Nygh’s Conflict of Laws in Australia, (Lexis Nexis Butterworths, 10 ed, 2020) at [3.37].
The rules for service outside Australia in the higher State courts in South Australia, New South Wales, the Australian Capital Territory and Victoria depart from the traditional rules by permitting service of originating process without leave where there is a defined connection with Australia as a whole rather than a specific State (such as South Australia in the case of the South Australian District and Supreme Courts). Importantly, the higher courts in these States can exercise jurisdiction in matters that may have no connection with their territory.
In this case, the Respondent conceded at the hearing of this application that the relevant connection regularly invoking the jurisdiction of this Court and authorising service of originating process outside Australia without leave is the making or entering into of the Applicant’s contract of employment in Australia.[30] As a consequence, the Respondent did not press its contention that service was not authorised by the UCR. This concession was significant. First, it acknowledges an important connection between the subject matter of the parties’ dispute and Australia and the Applicant’s prima facie right to have this Court as his chosen forum exercise jurisdiction regularly invoked by service on the Respondent outside of South Australia. This right to access this Court is not a privilege that can be withdrawn unless this Court is satisfied that is it a “clearly inappropriate forum”.[31]Whilst not too much weight should be placed on this right, it may be material where there is a finely balanced contest. Secondly, the power to decline jurisdiction should only be exercised in a clear case and the Respondent has the onus of establishing the Court’s satisfaction.[32]
[30] T3.1-.12; T20.18-.35; UCR rule 2(b)(i) of Schedule 1.
[31] Oceanic SunLine Special Shipping Company Inc v Fay (1988) 165 CLR 197 (Oceanic Sun) at 252 per Deane J.
[32] Ibid at 247 per Deane J.
Under the 2006 Supreme and District Court civil rules, a challenge to the ‘appropriateness’ of the court as a forum for the hearing of an action was a preliminary issue to be raised in a defence: rule 100(2)(c). UCR 67.6(7) similarly provides that any objection to this Court’s jurisdiction should be pleaded and the subject of an application seeking hearing and determination of that objection at the same time as the defence.
Plainly, as was the case of its predecessor, rule 4(2)(b) does not limit the generality of the Court’s power under rule 4(1) to decline to assume jurisdiction in the proceeding and the grounds set out in rule 4(2) are only some of the grounds on which an order for dismissal or stay can be made. The rule concerns an aspect of the inherent or implied power every court must have to prevent its own processes being used to bring about injustice.[33]
[33] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391; Puttick op cit [29]
The expression “inappropriate forum” in rule 4(2)(b) is, in the words of the High Court, “less emphatic”[34] than the expression “clearly inappropriate forum” authoritatively adopted as the test in Voth v Manildra Flour Mills Pty Ltd[35] and subsequently applied by Australian courts. However, it is settled that the Court’s discretion to decline jurisdiction and dismiss or stay the proceeding by reference to forum non conveniens principles in Australia derives from judicial decisions and not written law. The meaning of the expression “inappropriate forum” is informed by the same concepts and consideration that inform the “clearly inappropriate forum” test and in the same way because the ultimate consideration is the prevention of injustice.[36]
[34] Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491 at [24].
[35] Op cit at 539.
[36] Regie National des Usines Renault op cit at [25].
The ‘Clearly Inappropriate Forum’ Test
In Voth v Manildra Flour Mills Pty Ltd,[37] the High Court held a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served within the jurisdiction if the defendant persuades the local court that, having regard to the circumstances of the particular case and the availability of an alternative forum to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for determination of the dispute.
[37] Op cit at 564 citing Deane J in Oceanic Sun op cit at 248.
There was no issue between the parties as to the principles governing an application for a stay on forum non conveniens grounds. Both accepted the Voth test requires attention to be directed to the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the foreign court, and considerations as to the relevant “connecting factors” and any “legitimate personal or juridical advantage” as discussed by Lord Goff in Spiliada Maritime Corporation v Cansulex[38] continue to inform its application.[39]
[38] [1987] AC 460.
[39] Voth op cit 565-6 per Mason CJ, Deane, Dawson and Gaudron JJ.
Accordingly, the dispute between the parties here concerned the application of the Voth test to the facts of this case and the relative significance of the matters relied on by the parties in support of their opposing positions. In this regard, it is important to emphasise the following fuller summary of the relevant principles as stated by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay,[40] and adopted by the majority in Voth v Manildra Flour Mills Pty Ltd:[41]
In the light of the foregoing and at the cost of some repetition, it is possible to identify in summary form what I see as the modern content of the traditional principles governing the power of a court in this country to order that proceedings which have been regularly instituted within jurisdiction should be dismissed or stayed on inappropriate forum grounds. That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff, Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties.
[40] Op cit at 247-248.
[41] Op cit at 564.

In context “oppressive” is to be understood as meaning “seriously and unfairly burdensome, prejudicial or damaging” and “vexatious” as meaning “productive of serious and unjustified trouble and harassment”.[42] These criteria are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings to trial and not the Applicant’s conduct in continuing them.[43]
[42] Oceanic Sun op cit per Deane J at 247; affirmed in Henry v Henry op cit at 587 and Puttick v Tenon Ltd op cit at [29].
[43] Ibid at 24.
While a foreign court may be a more appropriate forum for a particular proceeding, the application of the Voth test does not necessarily mean the local forum is clearly an inappropriate one.
Approach to the Likely Issues and Evidence at Trial
This Court is to approach the Respondent’s application by having regard to the scope of dispute shown by the allegations made in the statement of claim and the generality of the material before it,[44] assuming the case will run to trial on all issues presently arising. This Court is not to speculate about what issues may be ultimately disputed at trial[45] or attach much weight to the possibility that issues will be narrowed over time.[46] These are necessarily “matters for individual judgment and, to a significant extent, matters of impression”.[47] It follows that the more detailed and concrete the evidence led as to the oppression and vexation arising from continuing the proceeding to trial, the greater its weight and persuasive force.
[44] Moldauer op cit per Kourakis CJ at [12].
[45] Strohschneider v Ehlert and the Estate of Ehlert op cit per Judge Beazley at [51] to [53].
[46] Moldauer ibid at [12] citing McGregor v Potts (2005) 68 NSWLR 109 at [51] and [68].
[47] Oceanic Sun ibid per Deane J at 248.
Conclusions reached by a court in determining whether to decline jurisdiction will normally be provisional and open to alteration in light of further evidence called at trial. It may not be possible on the state of the pleadings and the evidence before the court in some instances to reach even a provisional view on a particular matter.[48]
[48] Puttick v Tenon Ltd op cit at [36] per Heydon and Crennan JJ.
In taking the accepted approach in determining this application, this Court is entitled to expect the parties and their lawyers will comply with the overarching obligations imposed under rule 3.1 of the UCR and, specifically, expect co-operation between the parties and the Court, that unnecessary steps will not be taken, and reasonable endeavours will be used to ensure the time and costs incurred are reasonable and proportionate to the importance and value of the subject matter and the complexity of the proceedings. This would include the use of modern telecommunications where reasonably practicable rather than in-person attendances.
Status of the Proceeding
The proceeding is at a preliminary stage. Whilst the statement of claim discloses a relatively straightforward cause of action in contract for wrongful termination of an employment contract, it does not address all the facts relevant to the questions of forum non conveniens or the governing (or proper) law of the contract. Only two allegations locate the occurrence of relevant facts. First, it is alleged that the Applicant’s domicile is in Adelaide, South Australia[49] and, secondly, that his employment was based in Papua New Guinea.[50] No defence has been filed. Since the pleadings are not closed, the statement of claim cannot be regarded as settled, nor the issues in dispute limited in any definitive way.
[49] SOC [1].
[50] Impliedly by reference to the TAFE based in Port Moresby and Mt Hagen: SOC [3].
The evidence before the Court on this application goes some way in addressing these questions, but this evidence is limited and general. In some respects this is because of the preliminary stage of the proceeding, in others because of forensic decisions made by the parties.
Connecting Factors
The Respondent accepted that it has the onus of persuading the Court that it is a “clearly inappropriate forum”[51] and submitted it has discharged its onus in the present circumstances. The Applicant submitted otherwise, contending that on the ‘vague’ evidence before the Court, the Respondent has not established that the continuation of the proceeding would be seriously and unfairly burdensome such as to be oppressive or vexatious to it. The parties in their submissions emphasised different connecting factors as favouring their respective positions, attributing more or less weight to matters as favoured their cases.
[51] Written Submissions of the Respondent [36]; T18.19-.20.
I now turn to consider the connecting factors relevant to this case, starting with the connections between this forum and the parties and subject matter of the proceeding.
The Parties
I accept the Applicant’s domicile and residence is South Australia, as it was at the time the employment contract was made, despite his working and travelling interstate. The domicile, residence and places of business of the parties counterbalance one another and are neutral factors in this case. The need for a representative of the Respondent to travel to Adelaide to instruct in person is also counterbalanced by the corresponding prejudice to the Applicant if the matter were heard in Papua New Guinea.
Subject Matter of the Proceeding
The connections between the subject matter of the proceeding and South Australia are limited, clearly favouring Papua New Guinea as the natural forum and indicating the inappropriateness of South Australia. The Applicant’s employment contract was made in Australia by the Applicant countersigning the formal letter of offer in Adelaide or Melbourne and sending it to Ms Savage on behalf of the Respondent in either Sydney or Papua New Guinea. These connections are incidental and not contentious or likely relevant to the alleged breach of contract. By contrast, performance, payment and the alleged breach all occurred in Papua New Guinea.
These factors are not conclusive and on their own do not make this Court a “clearly inappropriate forum” but favour the Respondent’s application.
The Availability of Lay Witnesses
The availability of witnesses, including the expense and inconvenience of bringing foreign witnesses, are important factors in considering whether this Court is a “clearly inappropriate forum”. Questions of expense and convenience cannot be decided from the perspective of one party. The overall expense and convenience is more important.[52]
[52] Moldauer op cit [21]-[22].
In assessing these factors, Papua New Guinea’s proximity to Australia is relevant. The flight time between Port Moresby to Adelaide is about half an hour more than from Perth to Adelaide. The evidence does not disclose any special prejudice arising from any need for foreign witnesses or instructors to travel other than the obvious additional time, inconvenience and cost involved. This expense and inconvenience might be reduced or avoided by commonplace procedures available in the Court such as statements of agreed facts, leading affidavit rather than oral evidence or taking evidence by audio or video link.
The assessment of any relevant oppression or vexation also depends on the relative importance of a witness to the case by reference to the issues likely to arise at trial.
On the material before the Court, the obvious and likely central factual contest at trial will concern the merits of the alleged termination of the Applicant’s contract of employment, on the grounds of non-performance or the best interests of the Respondent school as stated in the termination letter in all the (presently unknown) circumstances.
In oral submissions, the Respondent emphasised the amenability of the Respondent and third parties to this Court’s jurisdiction and processes, focussing on possible difficulties this Court and the Respondent would have in compelling witnesses of fact who reside in Papua New Guinea and are no longer employed by the Respondent to participate in the proceeding. The premise of the Respondent’s submissions in this regard was that there are no relevant witnesses for the Respondent located in Australia and all witnesses except the Applicant are located in Papua New Guinea and no longer within its control.
As a matter of practicality, the need to call a foreign witness who is not within the control of a party is a material factor in considering whether this Court is a “clearly inappropriate forum”. The essential difficulty with the Respondent’s submissions in this regard is that the evidence before the Court does not support its premise. The Respondent’s submission that this is a “very real issue” for the Court to take into account in this case[53] therefore overstates the significance of this factor.
[53] T8.7-9.19.
While reference was specifically made to Mr Lalie and the Respondent’s directors in its submissions, the Respondent did not name in evidence the witnesses that it may call who all live in Papua New Guinea,[54] despite being asked in writing to do so by the Applicant’s solicitors.[55] As for Mr Lalie’s current residence, the evidence before me is equivocal. He is referred to as an employee of the Respondent,[56] despite his title of Executive Director appearing in the letters of offer and termination that might suggest he was also a member of the Respondent’s board of directors. Whether he was, is not addressed in the evidence. It is therefore not clear whether Mr Lalie is one of the seven directors said to reside in Papua New Guinea or not.[57] His name does not appear on the company extract naming the then current directors.[58]
[54] Written Submissions of the Respondent [56]. See also the Healey Affidavit at [30].
[55] Exhibit SPW18 to the First White Affidavit.
[56] Healey Affidavit [17].
[57] Healey Affidavit [11].
[58] Exhibit PH-1, ibid.
The relevance of these witnesses to the likely issues in dispute or their relative importance to the case was not addressed by the evidence at all. In my view, the Respondent could have led more detailed and concrete evidence as to its likely witnesses, their current residences and any specific difficulties regarding their unwillingness or inability to participate in a trial in this Court.
Turning to these unaddressed questions, the allegations made in the statement of claim and the documentary evidence[59] indicate that the key witnesses are likely to be the Applicant, Ms Savage and Mr Lalie.
[59] That is, the written contract, the probationary report and the letter of termination.
Both the Applicant and Ms Savage reside in Australia. Ms Savage prefers not to travel to Papua New Guinea.[60] Mr Lalie no longer works for the Respondent and the only direct evidence as to his whereabouts is from Ms Savage, who does not know where he is.[61] As stated, the Respondent’s evidence is equivocal.
[60] First White Affidavit [22.7].
[61] First White Affidavit [22.5].
The Applicant will likely give evidence at trial about the lack of complaint about his performance and positive feedback as confirmed by his probationary report on his performance in dealing with the challenges that were not of his making.
As to Ms Savage, the Respondent submitted that the Applicant did not say he planned to call her[62] and she does not appear to be a relevant witness in its case.[63] It is premature to say in whose case Ms Savage would likely give evidence and it is not necessary to do so. What is important is that she is obviously a relevant witness as the author of the probationary report and the Applicant’s primary supervisor and likely involved in the Respondent’s decision to terminate the Applicant’s contract given the termination letter was copied to her. If she were not, her evidence would likely still be relevant given the recommendation she made in the probationary report three months earlier that the Applicant pass probation and his employment be confirmed. In either case, there are no real difficulties with this Court compelling Ms Savage to give evidence if she were unwilling to do so voluntarily since she is retired and currently resides in New South Wales.[64]
[62] T14.1-.7.
[63] Written Submission of the Respondent [57].
[64] Barker Affidavit [14]; First White Affidavit [22].
Given his former role as Executive Director of the Respondent and conduct in terminating the Applicant’s employment in the 11 December 2015 meeting and signing the termination letter that was copied to Ms Savage, Mr Lalie’s testimony will likely be required at trial. The Respondent does not submit otherwise, [65] although not expressly naming him as a witness that may be called by it.[66]
[65] Written Submissions of the Respondent [58].
[66] Written Submissions of the Respondent [56].
Importantly, as stated, the evidence does not unequivocally show that Mr Lalie resides in Papua New Guinea, the Respondent accepting only that he is no longer an employee,[67] when as his former employer, the Respondent would ordinarily be in a better position to know his whereabouts than the Applicant. Little or no weight can be given to any oppression or vexation to the Respondent that might possibly arise from difficulties in compelling Mr Lalie to participate as a witness at a trial in this Court if he is co-operative and resident in Papua New Guinea. If Mr Lalie were unco-operative and shown to reside in Papua New Guinea, there would be some force in the Respondent’s submissions on this point, given his pivotal role. In any event, difficulties with compellability, cost and inconvenience are counterbalanced by cost and inconvenience involved if the Applicant and Ms Savage were to give evidence in Papua New Guinea and difficulties compelling Ms Savage to give evidence in Papua New Guinea if she is not willing to travel there.
[67] Written Submissions of the Respondent [58].
As for the directors of the Respondent, it is difficult to see how the current directors residing in Papua New Guinea are likely witnesses since, according to their dates of appointment, none were directors at the relevant time.[68]
[68] Exhibit PH-1 to the Healey Affidavit. Ms Ballinger-Togolo was appointed on 1 April 2015 and has since resigned, despite being shown as a current director in the company extract taken on 9 June 2022. Healey Affidavit [10].
As to the former directors, only one of the seven[69] is identified: Ms Ballinger-Togolo.[70] The company extract shows she resides in Papua New Guinea.[71]
[69] Healey Affidavit [11].
[70] Ibid.
[71] Ibid, Exhibit PH-1.
The only evidence as to the role the former directors likely played, if any, in reviewing the Applicant’s performance or the decision to terminate his employment is the Applicant’s evidence that he in part reported to the Board.[72] On the scant material before the Court it is difficult to reach even a provisional view as to the likely relevance of evidence from any of the former directors, let alone all of them, without speculating about the possibilities. It follows that considerably less weight can be given to possible difficulties arising from compelling former directors to participate in the proceeding in the absence of any cogent evidence about their alleged involvement in the subject matter of the proceeding, accepting that they all reside in Papua New Guinea.[73]
[72] Barker Affidavit [12].
[73] Healey Affidavit [11].
Obtaining Lay Evidence from Outside South Australia
The Respondent submitted there would be increased costs and inconvenience in witnesses coming to Australia from Papua New Guinea without addressing in any detail who would be required on what topics, or what inconvenience and cost would be involved.
The Applicant submitted any such prejudice could be avoided by taking evidence of foreign witnesses by video link, which this Court is clearly empowered to do. Indeed, this Court may take evidence from a place outside this State by any form of telecommunication it thinks appropriate in the circumstances.[74]
[74] Section 59E(4) of the Evidence Act1929 (SA).
The Respondent submitted in response that this is not an immediate answer because of the difficulties with compellability of foreign witnesses not within the control of the Respondent and a party’s right to call a witness in person.
Two observations must be made about this. First, as discussed above, in the absence of cogent evidence about any material foreign witnesses outside the control of the Respondent being unwilling or unable to participate, possible difficulties with compellability fall away as being speculative.
Secondly, whilst attitudes differ as to the desirability of taking evidence by audio or video link, with continually improving high-speed electronic telecommunications, it must be recognised that video link is a low cost and convenient mode for taking evidence from overseas witnesses compared to travelling and is now commonplace in complex and long-running transnational litigation and arbitration. Its appropriateness depends on the nature and importance of a witness’ evidence to the case and any prejudice peculiar to the circumstances of the witness. Where there is no detailed or concrete evidence before the Court indicating that these factors may be relevant or significant, these factors can have little weight.
Further, as stated, statements of agreed facts and leading affidavit instead or oral evidence may significantly reduce or avoid the need for calling foreign witnesses in person.
Applying a Foreign Law as the Lex Causae
In Australia, under common law principles the basic conflicts rule for contracts is that the proper law of the contract is paramount in determining the creation, validity and effect of the contractual obligation. The proper law is the law that the parties intend to govern their contract and may be express or inferred from the terms of the contract and the surrounding circumstances.[75] In this case, the contract documents are silent as to the parties’ intentions as to the proper law, as is the statement of claim.
[75] Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418.
The Respondent submitted that the law of Papua New Guinea governs the dispute between the parties.[76] This was not challenged by the Applicant.[77] On the material before the Court, this Court assumes without deciding that the law governing the rights and obligations of the parties in this proceeding is the law of Papua New Guinea. This assumption is fortified by the Papua New Guinean Employment Act 1978, which provides that where a contract relating to employment within the country is made outside the country, that Act applies.[78]
[76] Written Submissions of the Respondent [45].
[77] Written Submissions of the Applicant [7.1].
[78] Exhibit PH-6 to the Healey Affidavit; see s 11.
The Applicant accepted that the fact the applicable law is a foreign law is a relevant factor and one that this Court can and should properly consider in determining whether this Court is a clearly inappropriate forum. However, for this Court to decline jurisdiction it is not reason enough that choice of law rules require this Court to apply foreign law. This is necessarily so because, as the majority of the High Court observed in Puttick v Tenon Ltd:[79]
The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction.
[79] Op cit at [31].
Nonetheless, the Respondent submitted that the fact that the applicable law is that of Papua New Guinea is a significant factor favouring a permanent stay in this case. Further, expert evidence will be required to prove the applicable foreign law as a matter of fact in order for this Court to determine the issues in dispute, resulting in increased complexity and cost overall. It was emphasised that this Court should be cautious and make no assumptions about the commonality of the law of jurisdictions sharing an English common law tradition given the evidence before the Court as to the different and more complex legal framework operating in Papua New Guinea.[80]
[80] Written Submissions of the Respondent [51]-[53].

It is basic that this Court should not make assumptions about there being a large degree of commonality between common law jurisdictions, particularly in this case where the common law adopted in Papua New Guinea is the common law as it existed in England as at 16 September 1975.[81] The Court should also not make assumptions about the extent of the suggested difficulty or complexity in proving foreign law without a proper foundation from which to draw such conclusions in a particular case. Plainly, less weight can be attributed to generalised evidence that does not address the content of the foreign law relevant to essential issues or the practicalities of proving that law as a matter of fact.
[81] Healey Affidavit [27.3.1] and Exhibit PH-5.
In this regard, the evidence of the law of Papua New Guinea put before the Court by the Respondent was very generalised, identifying apparent complexity because the underlying law is derived from English common law, customary law and written (statute) law.[82] Despite the retainer of Papua New Guinea lawyers whose advice formed the basis of the affidavit evidence about some basic matters of the law of Papua New Guinea, the Respondent did not identify how any of these apparent complexities might be relevant, let alone identify the specific legal issues arising under the law of Papua New Guinea relevant to the facts of this case, other than to point out that the Employment Act 1978 (PNG) will be relevant insofar as it deals with the law of termination of employment in Papua New Guinea.[83]
[82] Healey Affidavit [26]-[29].
[83] Healey Affidavit [28].
As counsel for the Respondent properly acknowledged, all the Respondent did was point out some of the fundamentals of the system of foreign law and the obvious fact that expert evidence will be required to prove foreign law in this Court.[84]
[84] T41.19-.33.
In assessing the oppression and vexation resulting from proving the law of Papua New Guinea, it must be borne in mind that whether the trial is held here or in Papua New Guinea, the parties will need to take advice on the applicable law of Papua New Guinea and its application to the facts of this case. Any oppression and vexation arise from the need to plead that law with particularity and prove it.[85]
[85] Regie Nationale des Usines Renault op cit at [68].
Proof may be by expert evidence or reference out. Just as there may be dispute between ‘battling’ experts, there may be agreement. Whilst this Court is adept in efficiently managing expert evidence and references out, proof of foreign law will likely add to the overall cost of the proceeding as compared to the proceedings continuing to trial in Papua New Guinea. However, on the material before the Court, it is not possible to determine how difficult, costly or inconvenient that might be.
It must be emphasised again that an Australian court cannot be a clearly inappropriate forum just because choice of law rules require this Court to apply foreign law.[86] If this Court is to decline jurisdiction, it must be satisfied that the likely difficulty or complexity in applying the law of Papua New Guinea to the facts of this case will be “seriously or unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. Since the scant material before the Court does not rise that high, I am not satisfied that this Court is a “clearly inappropriate forum” just because of the need to apply foreign law as the lex causae and the obvious implications that would arise in any case.
[86] Ibid at [81].
Location of Documents
The Respondent’s records concerning the Applicant’s employment, his performance and the circumstances that led to termination of his employment are in Papua New Guinea. There is no evidence as to the likely volume or difficulty for the Respondent in making discovery and producing discovered documents in this Court. It is now commonplace in civil cases, particularly where relevant documents are likely to have been created and kept electronically, for them to be ‘shared’ electronically with relative speed at low cost using generally available applications software over the internet and by email. This factor is not likely to be significant in this case.
Since there is no apparent need for third party discovery on the material before the Court, this factor is not a relevant consideration in this case.
Enforcement
The Respondent has no assets in Australia against which to enforce any judgment. If the Applicant is successful at trial, the Respondent submitted the Applicant may need to engage with the legal system in Papua New Guinea for the recognition and enforcement of a judgment of this Court were the Respondent unwilling to satisfy a judgment of this Court voluntarily. Such need does not sit well with the Respondent’s submission that it takes no issue with the Applicant proceeding in the National Court of Papua New Guinea[87] and the corollary that there would then be no enforcement issues in that forum.
[87] Written Submissions of the Respondent [70].
Nonetheless, in support of its submission on this factor, the Respondent put before the Court the Reciprocal Enforcement of Judgments Act 1976 (PNG)[88] without providing any substantive assistance as to its relevance to a judgment from this Court. Accordingly, little weight can be given to this factor bearing on the inappropriateness of this Court as the forum for a trial of the proceeding.
[88] Exhibit PH-7 to the Healey Affidavit.
Availability of an Alternative Forum
The availability of a foreign forum is always a relevant factor in deciding whether a local court is a “clearly inappropriate forum” but, as with all factors, it is also not conclusive.
The Respondent accepted that if there were no alternative forum available, it would be a matter of significant weight[89] and approached its application on the basis that there is an alternative forum available in Papua New Guinea in which the Applicant could have brought his claim and this was not disputed by the Applicant.[90] The Applicant’s evidence did not go that far. He deposed that he accepted that he could have instructed his solicitors to issue proceedings in relation to the breach of his employment contract out of Papua New Guinea.[91] His concession was confined to the past when this proceeding was issued and does not address whether such instructions were capable of being carried out effectively then, or more importantly now, given the passage of time since the alleged breach in December 2015.
[89] T4.19-.25.
[90] T6.1-.9.
[91] Barker Affidavit [16].
The Respondent’s submission as to the availability of an alternative forum was based on general advice from its Papua New Guinea lawyers that “the National Court of Papua New Guinea has jurisdiction to hear a proceeding of the type being pursued by Mr Barker”.[92] This evidence also does not address whether proceedings could now be brought in Papua New Guinea given the alleged breach of contract is dated and whether there are limitation of actions issues that now bar the Applicant’s claim in a Papua New Guinea court that do not apply in this forum because his claim was instituted here within time.
[92] Healey Affidavit [40].
In oral argument, the Applicant’s counsel submitted there is a relevant limitation period in the same form as the law in South Australia under a registered Act of the Parliament of Papua New Guinea of which this Court should take judicial notice despite there being no evidence before the Court formally proving this.[93] Counsel for the Respondent objected to the Court taking notice of this material because it was not before the Court, and she had no notice of it.[94]
[93] T46.9-T47.28.
[94] T47.4-.10.
The Respondent’s objection was properly made. Foreign law must be proved as a matter of fact. This Court may have regard to printed books containing foreign statutes for the purpose of ascertaining the law in force in a foreign country,[95] but it cannot simply take judicial notice of a foreign statute and make its own investigations as to its currency and interpretation of it.
[95] Section 63 Evidence Act 1929 (SA).
It follows that this Court cannot have regard to the statutory provision to which the Applicant’s counsel referred as the basis for inferring that there is a relevant limitation period under the law of Papua New Guinea. That is not the end of the issue, however. The evidence before the Court falls well short of showing that Papua New Guinea is still an available forum for the Applicant to now bring his claim without it being defeated by a limitation of actions or some other defence under the law of Papua New Guinea that does not apply in this Court.
The absence of such evidence is fatal to the Respondent’s application because without it the Court cannot be satisfied as to the availability of Papua New Guinea as an alternative forum. This is a significant factor strongly favouring refusal of the Respondent’s application to decline jurisdiction in this case.
Conclusion
While some of the factors relied on by the Respondent indicate the inappropriateness of this Court for trial of this proceeding, overall, the material before the Court does not demonstrate that this Court is a “clearly inappropriate forum”. The Respondent has not satisfied the Court that a trial in this Court will be oppressive and vexatious in the relevant sense. The absence of evidence that there is an alternative forum still available in Papua New Guinea for the Applicant to bring his claim is a compelling factor in all the circumstances favouring refusal of the Respondent’s application that this Court decline jurisdiction on forum non conveniens grounds.
The Respondent’s application is dismissed. It follows that costs should be ordered in favour of the Applicant on the standard basis, certified fit for counsel, subject to there being any basis for a different order as to costs.