Eade v St Barbara
[2025] VSC 21
•4 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S ECI 2021 02316
BETWEEN:
| JASON JOHN EADE | Plaintiff |
| v | |
| ST BARBARA LIMITED (ACN 009 165 066) & ANOR (according to the attached Schedule) | Defendants |
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| JUDGE | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 October 2024 |
DATE OF RULING: | 4 February 2025 |
CASE MAY BE CITED AS: | Eade v St Barbara & Anor |
MEDIUM NEUTRAL CITATION: | [2025] VSC 21 |
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CONFLICT OF LAWS – Forum non conveniens – Negligence – Employee resident of Victoria injured in PNG – Whether Victoria clearly inappropriate forum – Defendant insurance – Kvist and Others v GippsAero Pty Ltd and Another [2023] VSC 275 – Abuse of process.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Folie of counsel | Harris Lieberman Solicitors Pty Ltd |
| For the Defendants | Mr Bongiorno of counsel | Gilbert + Tobin |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 1
Contract of employment.............................................................................................................. 1
Incident and aftermath................................................................................................................. 3
WorkCover claim.......................................................................................................................... 4
The County Court and PNG proceedings................................................................................. 6
History of this proceeding........................................................................................................... 9
Amended statement of claim........................................................................................................... 9
Evidence regarding the relationship between St Barbara and Simberi................................ 10
Is the Supreme Court of Victoria an inappropriate forum?.................................................... 12
Applicable principles.................................................................................................................. 12
Defendants’ submissions.................................................................................................. 15
Applicable law...................................................................................................... 15
Prejudice................................................................................................................ 16
Plaintiff’s submissions...................................................................................................... 17
Supreme Court of Victoria not an inappropriate forum................................ 17
Applicable law...................................................................................................... 19
Juridical advantage.............................................................................................. 20
The defendants’ insurance.................................................................................. 21
Case Against St Barbara...................................................................................... 22
Analysis – forum......................................................................................................................... 22
Applicable law................................................................................................................... 22
Defendants’ insurance coverage...................................................................................... 24
Significant connecting factors between Victoria, the subject matter and parties..... 28
Witnesses............................................................................................................... 28
Site view................................................................................................................. 29
Documentary evidence........................................................................................ 29
Juridical advantage............................................................................................................ 29
Is the proceeding an abuse of process?........................................................................................ 31
Defendants’ submissions.................................................................................................. 31
Plaintiff’s submissions...................................................................................................... 32
Analysis – abuse of process....................................................................................................... 32
Conclusion......................................................................................................................................... 35
HER HONOUR
Introduction
The parties dispute whether the appropriate forum for the plaintiff’s damages claim is the Supreme Court of Victoria or the National Court of Papua New Guinea.
The plaintiff, Jason Eade, resided in Victoria and was a ‘fly-in, fly-out’ (FIFO) worker. He was working in PNG when he fell and fractured his leg and ankle. Mr Eade underwent surgery in Australia for his injuries.
The second defendant, Simberi Gold Company Ltd (‘Simberi’), is Mr Eade’s former employer. The first defendant, St Barbara Limited (‘St Barbara’), is the parent company of the second defendant.
The defendants apply for the proceeding to be dismissed, stayed or struck out.
Summary
The questions for determination and their answers follow.
(a) Is the Supreme Court of Victoria a clearly inappropriate forum? No
(b) Is this proceeding an abuse of process? No
Background
Contract of employment
On 17 March 2017, Mr Eade commenced employment with Simberi, pursuant to the employment contract signed on 3 April 2017.[1] The terms and conditions of employment are contained in a written document titled ‘letter of offer – maximum term of employment’ and an annexure titled ‘Employment Conditions’ (together, ‘the employment contract’). The letter of offer was signed by Mr Eade and a representative of Simberi on 3 April 2017.[2]
[1]Affidavit of Jessica May Edmeades, affirmed on 12 March 2024 (‘Edmeades affidavit’), Exhibit “JME-1” to the Edmeades affidavit, 27.
[2]Exhibit “JME-1” to the Edmeades affidavit, 17 – 18.
Amongst other things, the employment contract states that Mr Eade would be:
a) employed in the position of Manager Fixed Plant Maintenance by Simberi;
b) employed for two years with an option to extend for a further year if mutually beneficial;
c) living in Yarrawonga [Victoria], with Albury as the stated Point of Hire;
d) employed in PNG (‘country of employment’);
e) on the ‘SGCL PNG payroll’ of the company. Simberi would withhold income tax to be paid to PNG; and
f) working on a FIFO basis – 21 days on/ 14 days off. Travel to and from the Point of Hire to be one day of company time and the remainder during field break.
The employment contract states:
For the avoidance of doubt, Australian Employment laws do not apply to this contract. The Employment Conditions and Letter of Offer are governed by the laws of the Independent State of Papua New Guinea.[3]
[3]Exhibit “JME-1” to the Edmeades affidavit, 17.
The employment contract states that it is the entire agreement between Mr Eade and Simberi:
Acceptance:
This Letter of Offer and the attached Employment Conditions comprise the entire agreement between the parties regarding your employment and supersede all previous agreements between the parties.[4]
[4]Ibid, 18.
As to insurance, the employment contract states:
11.0 Insurance
11.1 Travel Insurance
Whilst on site, urgent medical services are provided at the Site Clinic. Cover for emergency evacuation from Papua New Guinea will also be provided, as well as cover while you are in transit to or from your Point of Hire. You are also covered for emergency medical expenses whilst on approved business travel overseas. All other private medical costs and treatment for personal health matters in your home country will be your responsibility. Details of the Company’s Travel Policy are available from the Human Resources department.
11.2 Accident Insurance and Worker’s Compensation
Worker’s compensation payments will be provided in relation to injury or illness arising directly from, or in consequence of, employment with the Company in accordance with applicable law and Company policies, procedures and guidelines.[5]
[5]Exhibit “JME-1” to the Edmeades affidavit, 23.
Mr Eade says that he undertook his work at home in Yarrawonga and abroad.[6] He says that he was on a “16/12 roster”. The 16-day period encompassed his FIFO duties, with two days for transit and fourteen for onsite work in PNG. The 12-day period was his off-period, where Mr Eade worked from home, corresponding via email and telephone with employees and vendors.[7] Mr Eade claims that his off-period work constituted “expected duties”.[8]
[6]Exhibit “LFB-1” to the affidavit of Lara Frances Block, sworn on 13 June 2024 (‘Block affidavit’), 26.
[7]Ibid.
[8]Ibid.
Incident and aftermath
On 14 August 2018, Mr Eade investigated an electrical malfunction on a rope conveyor system at Simberi Gold Mine.[9] He was standing on an unguarded pylon to investigate.[10] Mr Eade slipped on loose gravel and fell approximately 1.5 metres from the pylon to the ground.[11] He landed on his left leg and, according to the incident report, fractured his ankle (the ‘incident’).[12]
[9]Block affidavit, [4] – [5].
[10]For a photo of the unguarded pylon, see: Exhibit “LFB-1” to the Block affidavit, 1.
[11]Block affidavit, [5]; Exhibit “LFB-1” to the Block affidavit, 2.
[12]Ibid.
On 15 August 2018, Mr Eade was airlifted to Cairns Base Hospital where he was found to have suffered a severe compound fracture to his leg and ankle.[13] He underwent a procedure in that hospital. Mr Eade was subsequently transferred to St Vincent’s Hospital in Melbourne, where he was placed under the care of Dr Anita Boecksteiner.[14]
[13]Exhibit “LFB-1” to the Block affidavit, 27.
[14]Exhibit “LFB-1” to the Block affidavit, 27.
Mr Eade underwent a total of nine surgeries and has been diagnosed with severe osteoarthritis in his left ankle joint.[15]
[15]Block affidavit, [6].
After the surgical procedures and removal of prosthetic devices, Mr Eade remained under the care of his GP at the Yarrawonga Medical Clinic.[16]
[16]Exhibit “LFB-1” to the Block affidavit, 27.
On 26 March 2019, Mr Eade returned to work.[17] He says that, upon returning, he undertook “light duties”.[18]
[17]Block affidavit, [7]; for specific date, see: Exhibit “LFB-1” to the Block affidavit, 9.
[18]Exhibit “LFB-1” to the Block affidavit, 27.
In January 2020, Mr Eade was informed that his contract would not be renewed; he ceased working.[19]
[19]Ibid, 28.
WorkCover claim
On 16 January 2020, Mr Eade made a WorkCover claim against both defendants.[20]
[20]Block affidavit, [11]; Exhibit “LFB-1” to the Block affidavit, 6 – 17.
On 31 January 2020, in response to Mr Eade’s WorkCover claim, his representative received a letter from Ms Val Madsen, General Manager Human Resources & HSEC at St Barbara (’31 January 2020 letter’). The letter states as follows:
We refer to your letter dated 16 January 2020 (ref DA: 177402) enclosing your client’s WorkCover Claim Form for completion by St Barbara Limited.
Please note that Mr Jason Eade was employed directly by Simberi Gold Company Limited, an entity registered and operating in Papua New Guinea. As Mr Eade did not perform any work in Victoria, the claim cannot be lodged with WorkSafe Victoria
Simberi Gold Company Limited has workers compensation insurance cover under the state regulated PNG workers compensation scheme. Any workers compensation claim by Mr Eade should be directed to PNG workers compensation.
In Mr Eade’s case, Simberi Gold Company Limited has already covered all his medical evacuation, medical costs and lost wages and your client successfully returned to work on full duties on 27 March 2019.[21]
[21]Exhibit “LFB-1” to the Block affidavit, 18.
On 13 March 2020, Gallagher Bassett, a claims administrator for workers compensation in Australia, rejected Mr Eade’s claim under the Workers Injury Rehabilitation & Compensation Act 2013 (Vic) (‘WIRC Act’) (’13 March 2020 letter’).[22] In their rejection letter, Gallagher Bassett specified that they found Mr Eade:
[22]Block affidavit, [13].
(a) had not sustained an injury within the meaning of the WIRC Act;
(b) did not sustain an injury arising out of or in the course of his employment; and
(c) is not a worker under the WIRC Act;
(d) had not sustained an injury arising out of or in the course of his employment with St Barbara;
(e) did not sustain the claimed injury under circumstances that create an entitlement to compensation under the WIRC Act; and
(f) had no entitlement to compensation under the WIRC Act as his employment is not concerned with Victoria.[23]
[23]Exhibit “LFB-1” to the Block affidavit, 20.
Additionally, Gallagher Bassett reached the following conclusions regarding the nature of Mr Eade’s employment and the jurisdiction of his claim.
The information received to date, supports that St Barbara Limited is not your employer, St Barbara Limited acquired Simberi Gold Company Limited in 2012, however, the information available supports that you were employed by Simberi Gold Company Limited in Papua New Guinea and you do not perform any work in Australia or for St Barbara directly. Therefore, Gallagher Bassett has determined that you have not sustained an injury arising out of or in the course of employment with St Barbara Limited
The information available advises your arrangement with Simberi Gold Company Limited is for you to work in Papua New Guinea. You do not perform work in Australia, although you have claimed your personal address in Victoria, Australia. Gallagher Bassett considers your employment contract with Simberi Gold Company Limited falls outside jurisdiction of Victorian and/or Australian law. Accordingly, your employment contract is not considered to be an employment contract that would be recognised under Victorian and/or Australian law.
Therefore you are not entitled to compensation in the form of weekly payments and/or medical and like expenses.[24]
[24]Exhibit “LFB-1” to the Block affidavit, 21.
On 26 February 2021, Mr Eade made a worker’s injury application to WorkSafe Victoria.[25] On 30 June 2021, Mr Eade’s application was denied by letter.[26]
[25]Block affidavit, [14].
[26]Second Block affidavit, [16].
The County Court and PNG proceedings
On 1 July 2021, Mr Eade filed an Originating Motion in the County Court of Victoria: proceeding number CI-21-02703 (‘County Court proceeding’).[27]
[27]Edmeades affidavit, [10](a).
Mr Eade applied for leave to bring common law proceedings pursuant to s 335(2)(d)(ii) of the WIRC Act in respect of the alleged injury sustained by him in the course of his employment at the Simberi Gold Mine in PNG.[28] The County Court proceeding initially named St Barbara and Simberi as the first and second defendants, respectively.
[28]Second affidavit of Lara Frances Block, sworn on 13 August 2024 (‘Second Block affidavit’), [15]; Edmeades affidavit, [10](c).
The key questions to be tried in the County Court proceeding include the following:
(a) who was Mr Eade’s employer at the time he sustained the alleged injury – the first defendant or the second defendant?
(b) does Mr Eade’s employment hold a sufficient connection with Victoria for him to be a “worker” for the purposes of the WIRC Act?[29]
[29]Edmeades affidavit, [10](f).
On 19 July 2021, Mr Eade ’s representative received a letter from Lander & Rogers, who had received instructions from WorkSafe Victoria to act on behalf of the first defendant (namely, St Barbara). The letter relevantly states:
The plaintiff is not a worker under [the WIRC Act] and not entitled to compensation in respect of the injury which is the subject of the application.
We do not have instructions to act for the named Second Defendant, Simberi Gold Company Limited.
That entity is not registered in Victoria and has no relationship to Victoria. The Second Defendant is a company incorporated, registered and operating in Papua New Guinea.[30]
[30]Exhibit “LFB-1” to the Block affidavit, 31.
On or about 7 September 2021, the defendants’ representative filed a conditional appearance on behalf of the second defendant (namely, Simberi) and, accompanying that appearance, filed a summons seeking that the “purported service” of the second defendant be set aside.[31]
[31]Block affidavit, [17].
On 11 November 2021, the Victorian WorkCover Authority was substituted as the defendant in the County Court proceeding.[32]
[32]Edmeades affidavit, [10](b).
On 18 November 2021, Mr Eade filed an amended originating motion substituting the Victorian WorkCover Authority as the defendant.[33]
[33]Block affidavit, [17].
On 11 May 2022, Mr Eade filed particulars that claimed he was entitled to compensation under the WIRC Act. His alleged entitlement rested upon the claim that he was an employee of St Barbara. If found to have instead been an employee of Simberi, he would claim, in the alternative, that the requirements under s 47(1) of the WIRC Act were nonetheless satisfied.[34]
[34]Block affidavit, [18]; see also: Exhibit “LFB-1” to the Block affidavit, 32 – 35.
On 25 July 2022, the Victorian WorkCover Authority, who had now assumed the status of defendant in the County Court proceeding, filed their reply to Mr Eade’s particulars.[35] In that reply, they maintained that Mr Eade was not entitled to compensation pursuant to the WIRC Act. Notably, they state that:
[35]Block affidavit, [19].
3. At all material times:
(a) [Simberi] was an entity registered and operating in PNG.
(b) [Simberi] did not have any operations in Australia.
(c)[Simberi] did not reside, or have a place of business, in Victoria, pursuant to section 47(1) of the [Act].
(d)[Simberi] was a wholly owned subsidiary of [St Barbara], a company with a registered office and principal place of business in Victoria.
4. As at 14 August 2018, the Defendant:
(a) admits that the Plaintiff was employed by [Simberi];
(b) denies that the Plaintiff was employed by St Barbara.[36]
[36]Exhibit “LFB-1” to the Block affidavit, 37 - 38.
On 12 March 2024, Mr Eade’s representative contacted the defendant’s representative in the County Court Proceeding, Lander & Rogers, proposing that the County Court proceeding be stayed pending the outcome of this proceeding. This would avoid having concurrent proceedings whereby common questions were raised.[37]
[37]Block affidavit, [21].
The County Court proceeding had been scheduled for trial in the circuit at Wodonga on 3 June 2024.[38] On 8 April 2024, by consent, orders were made vacating the trial listed for 3 June 2024 and listing the matter for mention on 10 December 2024.[39]
[38]Edmeades affidavit, [10](e).
[39]Exhibit “LFB-1” to the Block affidavit, 40.
On 14 August 2024, Mr Eade caused a writ and statement of claim in the National Court of PNG (‘PNG proceeding’) to be issued as a temporary measure to protect his rights in respect of any non-statute barred claims in the event that the proceeding in this Court would be stayed. If the matter were to proceed here, then the PNG proceeding would be discontinued.[40]
[40]Third Affidavit of Lara Frances Block, sworn 26 August 2024 (‘Third Block affidavit’), [4] – [5].
On 19 August 2024, Mr Eade’s solicitor wrote to the defendant’s solicitor in the County Court proceeding seeking whether the defendant would consent to the County Court proceeding being stayed in the event that this proceeding is allowed.[41] On 22 August 2024, the defendant’s solicitors in the County Court proceeding confirmed their consent.[42]
[41]Third Block affidavit, [19].
[42]Exhibit “LFB-3” to the Third Block affidavit, 12.
History of this proceeding
On 2 July 2021, the day after the County Court proceeding was initiated, Mr Eade initiated this proceeding in the Supreme Court of Victoria. He did so by generally indorsed writ; an amended writ was subsequently filed on 16 March 2022.[43]
[43]Block affidavit, [10].
On 27 February 2024, Simberi filed and served a conditional appearance. Alongside the service of this conditional appearance, Simberi’s representative foreshadowed a summons in support of the conditional appearance, to be filed by 12 March 2024.[44]
[44]Exhibit “JME-1” to the Edmeades affidavit, 29.
On 12 March 2024, Simberi’s summons was filed.
On 21 May 2024, St Barbara’s summons was filed, and is substantially similar to Simberi’s summons. The summonses were heard together on 18 October 2024.
Amended statement of claim
By his amended statement of claim (‘ASOC’), Mr Eade makes the following allegations.
St Barbara and Simberi owned and occupied the Simberi Gold Mine and held mining leases. St Barbara is incorporated in Australia, Simberi in PNG.
St Barbara exercised direction, management and control over Simberi’s operations, the operation of the mine, and the work performed by Simberi’s employees at and in relation to the mine.
Mr Eade was employed by Simberi on a FIFO basis. On 14 August 2018, he was injured after falling from a pylon.
St Barbara owed Mr Eade a duty of care. Specifically, they were to take reasonable care to prescribe and provide a safe system and place of work at the mine by reason of its direction, management and control over Simberi and the work of Simberi’s employees.
The incident was caused by St Barbara’s negligence and breach of duty. These allegations are particularised and refer, among other things, to the failure to properly train and instruct Mr Eade in relation to his work duties, including hazard assessment and working at heights, failure to adequately train others in relation to the supervision of Mr Eade, and failure to approve appropriate expenditure on safety at the mine.
St Barbara and Simberi each owed Mr Eade a duty as occupier of the mine and breached their duties.
Simberi owed a duty of care to Mr Eade to take reasonable care for his safety by providing him with a safe place to work, proper and safe access for his work, and a proper and safe system for conducting his work. It breached that duty.
Mr Eade has suffered injury, loss and damage including compound fractures of the tibia and fibula, post-traumatic left ankle arthritis, psychiatric injury, pain and suffering and loss of amenity of life.
Evidence regarding the relationship between St Barbara and Simberi
The following findings are made on the limited material before me and only for this ruling. There was no direct evidence from Mr Eade and the hearsay evidence of his beliefs is only admissible because this is an interlocutory application.[45]
[45]Evidence Act 2008 (Vic) s 75.
St Barbara is an ASX-listed company headquartered in Perth, Western Australia. At the time of the commencement of Mr Eade’s employment, it was headquartered in Melbourne, Victoria. It is the ultimate holding company of Simberi.[46] Simberi is a wholly owned subsidiary of St Barbara.[47] Simberi is incorporated in PNG and has neither business nor assets in Australia.[48] As at 6 March 2024, there was no record of Simberi on the ASIC registers.[49]
[46]Edmeades affidavit, [7].
[47]Block affidavit, [9].
[48]Edmeades affidavit, [5], [7]; Exhibit “JME-1” to the Edmeades affidavit, 6 – 15.
[49]Edmeades affidavit, [6].
Both companies operate chiefly in the mining industry. The mining lease is under the name Simberi.[50]
[50]Affidavit of Jessica May Edmeades affirmed on 19 July 2024 (‘Third Edmeades affidavit’), [6](a).
St Barbara’s website contains 2018 Annual Mineral Resources and Ore Reserves Report as at 30 June 2018. It refers to the Simberi mine. It says the mine was acquired by St Barbara on 7 September 2012; that St Barbara is the 100% owner of the mine and holder of the relevant leases; and that Simberi is the operator of the mine with use of those leases.[51] A 2012 report on St Barbara’s website says that it assumed control of Simberi operations on 7 September 2012.[52]
[51]Second Block affidavit, [5] – [6].
[52]Second Block affidavit, [7].
Mr Eade was subject to group-wide policies and procedures, and PNG-specific site policies and procedures.[53] His employment contract states that these do not form part of his employment contract.[54]
[53]Second Block affidavit, [9](f); Third Edmeades affidavit, [21](a).
[54]Exhibit “JME-1” to the Edmeades affidavit, 19.
St Barbara was involved in the administration, management, and operation of the mine and the persons working there. Mr Eade believed that St Barbara organised his employment contract and conditions out of their Melbourne head office.[55] The management of the Simberi operations in PNG set Mr Eade’s role description and salary.[56] Salaries of FIFO workers required approval by the St Barbara board.[57]
[55]Second Block affidavit, [9].
[56]Third Edmeades affidavit, [21].
[57]Second Block affidavit, [9](b).
Mr Eade believes that capital expenditure at Simberi mine over a certain amount required approval by St Barbara management, that management-level positions at the mine were all held by expatriate FIFO workers, including his supervisor, Tim Richards (the general manager of the mine) and Daan van Pletzen (the OHS manager).[58]
[58]Second Block affidavit, [10].
Mr Eade attended annual management courses in Australia organised by St Barbara’s General Manager of Human Resources.[59] Mr Eade also deposed to working from home on his “off” days. During this time, he would answer emails, consult with vendors and employees in PNG, and complete other similar work tasks. He deposed to these being “expected duties” undertaken in the off period.[60]
[59]Ibid, [9](g).
[60]Exhibit “LFB-1” to the Block affidavit, 26.
Is the Supreme Court of Victoria an inappropriate forum?
Applicable principles
The applicable principles are not in dispute. I gratefully adopt the summary of principles given by John Dixon J in Kvist v GippsAero Pty Ltd[61] (‘Kvist’) at paragraphs [42] – [45] and [52] – [70].
[61](2023) 72 VR 226 (‘Kvist’).
I will address some other authorities relied upon by the parties.
In Puttick v Tenon,[62] the High Court held that even if the applicable law was New Zealand, it did not establish Victoria was a clearly inappropriate forum. The case concerned a proceeding issued by Russell Puttick seeking damages for asbestos-related injuries. He alleged asbestos exposure at factories in Belgium and Malaysia during the course of his employment. Mr Puttick died; his widow was substituted as the plaintiff. Mr Puttick believed the defendant, a New Zealand company, had employed him. However, it later materialised that its subsidiary had employed him. His widow alleged that the parent company owed Mr Puttick a duty of care and had breached that duty. The duty was allegedly owed by the direction, management, and control it exercised over the subsidiary company and the work of its employees.
[62](2008) 238 CLR 265.
Initially, the defendant successfully sought a permanent stay of the proceedings. The primary judge had ordered a stay, finding that Victoria was a clearly inappropriate forum because, among other things, New Zealand law applied. The stay was upheld on appeal. It was, however, finally overturned by the High Court. The High Court held that it was only arguable that the applicable law was that of New Zealand. It was not possible to determine the applicable law on the stay application. It was not open to find that the alleged tortious omissions in New Zealand determined the place where, substantively, the tort occurred. The circumstances were that, similar to here, the plaintiff’s amended statement of claim made no express allegation any foreign law governs the claim and no defence had been filed; the plaintiff’s claim only included a few allegations locating the occurrence of any fact or circumstance and said nothing about where he was employed. Unlike here, the claim did not allege where the companies operated at the material time.
In Fleming v Marshall,[63] there was a dispute as to whether New South Wales was a clearly inappropriate forum given the action was against Kreindlers, a law firm in New York. The NSW Court of Appeal dismissed the application to stay the NSW proceeding, finding that NSW was not a clearly inappropriate forum. In doing so, the Court of Appeal highlighted the importance of the alternative forum being unavailable:
[74]Of prime importance in this regard is the fact that the alternative forum in which Kreindlers allege that the dispute should be (or at least should have been) resolved, namely New York, is not now and has not for some years been available as an alternative forum in which the Marshalls could sue Kreindlers. As indicated in [45] above, the parties accepted that under New York law (which the parties implicitly accept would be applied in any New York proceedings) a 3-year time bar is applicable to the causes of action upon which the Marshalls rely. That period expired in 2006 without the Marshalls having commenced proceedings in New York (or indeed in New South Wales).
[75]The relevance of the unavailability to the plaintiff of the alternative forum that the defendant contends was the appropriate forum for the proceedings was considered in Garsec. That decision of this court confirmed that while this factor is not conclusive as to the grant of a stay, it is a significant factor favouring the plaintiff: Spigelman CJ at [12]–[22], Hodgson JA at [31] and Campbell JA at [138]–[149].
[76]The significance of this factor may be lessened, at least where the court’s discretion comes to be exercised (see [59] above), if the plaintiff has rendered the alternative forum unavailable by failing for unexplained reasons or through carelessness to sue before the limitation period expired. That is not the case here. Although the Marshalls did not commence proceedings in or prior to 2006, that is explicable on the basis that it was not until well after 2006 that a significant part of the Marshalls’ damages crystallised as a result of the completion of their proceedings against Ms Carruthers. They were of course proceedings that Kreindlers had required the Marshalls to take.[64]
[63][2011] NSWCA 86 (‘Fleming’).
[64]Fleming [74] – [76].
In McGregor v Potts (‘McGregor’),[65] Brereton J addressed the question of prejudice, and the evidence required. His Honour held that ‘it is inevitable that actual prejudice to a foreign defendant will often be conjectural’ and that the court considering the stay application must assume all issues will go to trial and evaluate the convenience of each forum on that assumption.[66]
[65][2005] NSWSC 1098.
[66]McGregor v Potts [2005] NSWSC 1098 (‘McGregor’) [51].
In Regie Nationale des Usines Renault SA v Zhang[67] the High Court accepted the submission that:
the reasoning and conclusion in Pfeiffer that the substantive law for the determination of the rights and liabilities in respect of intra-Australian torts is the lex loci delicti should be extended to foreign torts[68]
However, the High Court reserved for future consideration whether questions as to the application of limitation periods and the kinds of damages recoverable should be governed by the lex loci delicti.
[67](2002) 210 CLR 491.
[68]Ibid [75].
Whether a view of the site of an injury is required depends on the circumstances of each case. I will refer to two examples. In Hargood v OHTL Public Company Ltd (‘Hargood’), Davies J held that, given there was nothing complex about the site at which the accident occurred, photographs would suffice; no site visit was required.[69] The plaintiff had been injured when she was at a hotel in Thailand attending a cooking class and floorboards gave way beneath her. Meanwhile, in Kvist, John Dixon J was not satisfied that a view of the air crash scene would assist in the resolution of the pleaded issues.[70]
[69][2015] NSWSC 446 (‘Hargood’) [47].
[70]Kvist and Others v GippsAero Pty Ltd and Another (2023) 72 VR 226 [101](d) (‘Kvist’).
Defendants’ submissions
Applicable law
The place of law is PNG. Mr Eade fell from a pylon while working there.
The governing law is PNG, as stated in the employment contract. The contract provides that workers’ compensation payments will be in accordance with the applicable law. The employment contract excludes Australian law.
Mr Eade was employed by Simberi, not St Barbara, and was therefore employed by a company registered and operating exclusively in PNG. Naturally, therefore, Mr Eade should seek any claim for workers’ compensation under relevant PNG law. The 31 January 2020 letter from St Barbara and the 13 March 2020 letter from Gallagher Bassett support this submission.
The owner of Simberi Mine, where the injury occurred, is Simberi and not St Barbara, contrary to the assertion in paragraph 3 of Mr Eade’s ASOC. Accordingly, it cannot be seriously contended that St Barbara owed a duty of care to Mr Eade. Nor can a reasonable case be made based on St Barbara exercising direction, management and control over the operations of Simberi, contrary to paragraph 3A of the ASOC. In this regard, the highest inference Mr Eade’s evidence may reach is that St Barbara, being the parent company, was required to approve capital expenditure at Simberi Mine when that expenditure exceeded a certain amount. The public statements made by St Barbara about the ownership of Simberi mine do not support the notion that it occupied the mine on a daily basis. None of these assertions can act as a reasonable basis for a claim against St Barbara; they are nothing more than vain attempts to knot the loose ties connecting this proceeding with Victorian law. A reasonable basis wanting, the case against St Barbara must be dismissed.
On 13 March 2024, Mr Eade proposed removing St Barbara as a party by consent minutes. St Barbara’s solicitors signed the consent minute which was later provided to the Court. However, Mr Eade’s solicitors later stated that they no longer sought to remove St Barbara as a party.[71]
[71]Third Edmeades affidavit, [13] – [15]; Exhibit “JME-2” to the Third Edmeades affidavit, 19 – 27.
An application to strike out St Barbara has not yet been brought because their position is currently a conditional one. They will consider whether to file an application for strike out upon the resolution of the current application. This is also the reason they have yet to follow up on the current location of certain witnesses.
Prejudice
The defendants will suffer specific prejudice for litigating in the Supreme Court of Victoria. Namely, they will not be covered for the first PGK K5,000,000 (approx. AUD $1.9 million) of liabilities that they will be ordered to meet for proceedings commenced outside PNG. They will not be covered because their “master policy” (i.e., global insurance coverage outside of PNG) will only activate when above that value. Further, the PNG workers’ compensation scheme referred to in the 31 January 2020 letter only applies to proceedings commenced in PNG.
Further, the limitation period for the PNG proceeding has now expired; that is due to the forensic decisions made by Mr Eade as to when and where to bring the proceedings. And, in any case, it is unlikely, given the evidence, that Mr Eade will be statute-barred from bringing his claim in PNG with respect to any claims against St Barbara or contract claims against Simberi.
The essential witnesses – the two people who witnessed the fall – are located in PNG. Further, most other key witnesses reside in Australia but outside of Victoria. These other witnesses, likely to appear by audio-video, are no more connected to the Victorian jurisdiction than that of PNG.
In response to the plaintiff’s submission regarding confirmation of coverage, the defendants maintain that it is highly likely that their coverage would apply in the PNG proceeding if it were to continue.
Plaintiff’s submissions
Supreme Court of Victoria not an inappropriate forum
The complexity of this case gives rise to several forums that may qualify as natural forums.
The test for forum non conveniens does not centre on absolute or comparative appropriateness. The test, rather, centres upon whether this forum is clearly inappropriate. This immediately renders mute any submissions made by the defendants that suggest measuring competing forums and declaring which is best.
Addressing the factors, there are allegations about the role of St Barbara in Victoria, and that some preliminary evidence has been provided which speaks to those allegations. They include that Mr Eade’s employment contract, conditions of employment, and other like items that were organised and managed by St Barbara, operating in its headquarters which, at the time, was located in Melbourne, Victoria. They also include the requirement to adhere to policies orchestrated and enforced by St Barbara, to perform work from home in Victora, and that Simberi’s safety audits were finally reported to St Barbara. Further to the point, schedule A to the employment contract identifies the employee’s address and Point of Hire as being in Victoria. These are important connecting factors which tie the proceeding to this forum; they will be ventilated at trial.
The evidence from Mr Eade’s solicitor is that he resided in Yarrawonga, Victoria, at all relevant times. He worked from home, and from St Barbara’s offices in Melbourne and Perth. He travelled both domestically and internationally to conduct inspections. His payslips include St Barbara’s letterhead. He was paid in Australian dollars into an Australian bank account.[72] St Barbara is and was listed as an ASX company, with Simberi as its wholly owned subsidiary. At the time of the incident, St Barbara was registered in Victoria. St Barbara’s directors are all located in Western Australia, New South Wales, and Victoria. Simberi has three directors, one in Victoria, one in Western Australia, and one in PNG. The orchestration of FIFO employees, and the policies they were to follow, were all managed and organised by St Barbara.
[72]First Block affidavit, [24] – [25].
Whilst there are certainly Victorian witnesses, it is not confirmed whether non-Victorian witnesses will be required. In any case, the presence of interstate or PNG witnesses will not create an undue burden upon this Court. Regarding the certain Victorian witnesses: Mr Eade and the medical team which performed his nine surgeries reside in Victoria. The defendants have not given evidence verifying the current location of the two PNG locals who witnessed the incident, nor to whether they have made any effort to ascertain that information. As to the other potential non-Victorian witnesses flagged by the defendants, the Court cannot, at this early stage, determine with certainty as to whether those witnesses will be required.
Concerning relevant documents, Mr Eade’s medical, financial, and subsequent employment records are all in Australia. And, there is strong reason to suspect that a large part of the documents relating to Mr Eade’s employment with the defendants, and the operation of the mine, are held in Australia.[73] This is a surmise which the defendants have not provided evidence to contradict. There would, in addition, be no impediment to the defendants producing those relevant documents in this Court.
[73]Third Block affidavit, [17] – [18].
The need to view the site beyond any photographic or other contemporaneous evidence is speculative. Evidence as to the state of the pylon and the worksite as they were six years ago (i.e., at the time of the incident) may be adduced through contemporaneous photographs, evidence, and reports.
Applicable law
There is no basis for the Court to find that the possible applicability of PNG law to this case is a relevant factor in determining whether the proceeding should be stayed.
Firstly, this application does not require the Court to determine which law is applicable (that is, PNG or Australian law).
Secondly, the Court is not able to make a finding about the law applicable to Mr Eade’s claims. In this application, the Court needs only to ascertain the place of the act on behalf of the defendant, and not its consequences. The incident occurred in PNG. However, Victoria is where St Barbara’s tortious acts and omissions in relation to the management and control of Simberi and its mine took place. They give rise to Mr Eade’s primary claim. Further, most of Mr Eade’s subsequent treatment and recovery occurred in Victoria. He underwent nine surgeries in Victoria. Therefore, Victoria is where Mr Eade has continued to suffer the loss and damages.
There is an open question as to whether PNG law should be applied to the kinds or amount of damages recoverable, if it applies at all. This is a complex case of the kind which the High Court has indicated could only be resolved at trial following the receipt of all relevant evidence.
The “governing law” clause in the contract of employment is not an “exclusive forum” clause. There is no forum limitation to be found anywhere in the contract. Therefore, Mr Eade did not agree by his employment contract that he would only litigate in PNG.
Thirdly, even if the applicable law is PNG law, this is not a reason to stay the proceeding. This Court can apply foreign law.
Fourthly, there is no evidence to delineate the differences between the laws of PNG and Victoria, nor whether complex or controversial issues under the common law of PNG would arise, nor whether there would be any significant difficulty or expense in proving the common law of PNG. The defendants, bearing the onus of this application, must submit this evidence; they have not.
Juridical advantage
As to juridical advantage, the plaintiff relies on the exhibited expert report of Mr Molloy. There is a three-year limitation period under PNG law. As expounded in Voth v Manildra Flour Mills Pty Ltd,[74] avoiding a limitation bar imposed by a foreign jurisdiction presents a legitimate jurisdictional advantage. If the proceeding were to be held in PNG, there is a real prospect of Mr Eade being disadvantaged by that foreign limitation period. Further, the parties find themselves in such a position because the defendants, unusually, have not undertaken to waive the limitation period if the matter were heard in a foreign forum. They have refrained from doing so on account of the protestations of one of their insurers. Therefore, if the case was litigated in PNG, the limitation period would apply.
[74](1990) 171 CLR 538.
There are, in addition, key procedural differences between Victoria and PNG. Notably, in PNG, there is no discovery for proceedings for damages in personal injury matters, no provision for third-party discovery, and more stringent regulations on the use of summons for the production of documents.
Additionally, there is no provision for remote evidence, and though technically feasible, PNG Courts prefer that in-person evidence be given; evidence is rarely given remotely. There are no transcript services and no compulsory attendance requirement for witnesses outside of the jurisdiction.
Further, Mr Eade would need to find new legal representation if the matter were adjudicated in PNG. He cannot shoulder the financial burdens and risks of adjudicating a trial in PNG. Conversely, there is no evidence tendered by the defendants which suggests that they would be unable to undertake proceedings here.
In response to the defendants’ submission that Mr Eade failed to issue in PNG on time: there can be no suggestion that Mr Eade has sat on his hands and thereby allowed his rights to pass away. He commenced a proceeding in this Court, which has jurisdiction over his claims, as he is entitled to do, and no further explanation is required.
Taken together, these factors speak to the juridical advantage Mr Eade gains by having the proceeding take place in this Court, and the prejudice he would face litigating in PNG.
The defendants’ insurance
The defendants cannot rely on their decisions about insurance as a relevant factor in a forum non conveniens application. Previous authority makes clear the following distinctions.
Firstly, that the relevance of insurance depends largely on the characteristics of the defendants and the nature of the interaction between the defendants and the plaintiff.
Secondly and more specifically, their distinction is on the basis of prior connection. There are cases where the defendants had no prior connection to the plaintiff and could therefore not have reasonably anticipated civil litigation being brought against them in a proceeding. On the other hand, there are cases where the defendants’ business invites or involves persons from other jurisdictions coming into the foreign forum. This latter class of defendants can reasonably anticipate that any incident may be litigated in the plaintiff’s home forum. Mr Eade submits that the defendants, as employers of FIFO employees, belong to the latter class. It is expected, therefore, that employees of Simberi and St Barbara will, if injured, seek to litigate their claims in their local jurisdiction. Far from having “off the rack” insurance, the defendants, large and sophisticated mining businesses, made choices about the extent of their insurance coverage.
The defendants have submitted that the insurer will only confirm coverage if and once the PNG matter proceeds. Ergo, there is no confirmed position as to whether the defendant’s insurance will apply if the case were litigated in PNG. Therefore, whether there is any prejudice on this account is uncertain.
Case Against St Barbara
The pleading complaints made by the defendants regarding the claims made against the first defendant are not to be raised in this application. This application, being neither a strike out nor summary dismissal, is not the appropriate place to voice such grievances. And, in any case, there is currently insufficient material to determine the factual questions relating to the extent of St Barbara’s management and control of Simberi. They are matters for a strike out application, or perhaps for trial. This application, rather, is only to be determined with reference to what the Court would anticipate is the ordinary running of the trial.
Analysis – forum
The defendants have not established that Victoria is a clearly inappropriate forum. I am not satisfied that a trial in Victoria will be oppressive or vexatious for them. My reasons follow.
Applicable law
It is strongly arguable that the law applicable to the proceeding is the law of PNG. The incident occurred there, and the action is based on tort. However, this is not a complete certainty. There is a residue of uncertainty about whether Victorian or PNG law applies for the following reasons. The pleadings are silent on the location of St Barbara’s breaches of duty. Evidently, some alleged breaches occurred in PNG. I refer to the allegations about the pylon. The particulars describe breaches that relate to the Simberi mine. However, it is unclear from the pleadings where it is alleged that the failures to provide adequate training or approve adequate expenditure arise. The evidence from Mr Eade’s solicitor is that he received some training in Melbourne but there is no evidence it concerned safety. Mr Eade alleges that St Barbara exercised discretion, management and control of Simberi. It is not alleged, but I presume Mr Eade will argue that St Barbara exercised management and control over Simberi from its Melbourne headquarters. (This is in line with Mr Eade ‘s beliefs discussed above.)
It will be a matter for the trial judge to determine the applicable law.
The defendants made much of the fact that the governing law of the employment contract is PNG. However, the claim against the defendants is based on tort, not contract. Employers have a duty to provide a safe system of work that arises both in contract (implied by law) and tort.[75] Mr Eade has elected to proceed in tort. Correctly, it was not suggested that Mr Eade was barred from making this tortious claim by the employment contract.
[75]Lister v Romford Ice and Cold Storage Co Limited [1956] AC 555, 587 per Lord Radcliffe; this is well-established law in Australia: see Goldman Sachs JBWere Services Pty Ltd v Nikolich [325]-[326] per Jessup J.
The real relevance of the employment contract is to the insurance arrangements agreed between Mr Eade and Simberi. (St Barbara is not a party to the employment contract.) Insurance arrangements will be discussed further below.
Whether St Barbara owes Mr Eade a duty of care is a matter for trial. It is not appropriate to determine on a stay application, particularly when there is evidence that St Barbara regards the mine as its asset even if Simberi has the mining lease: see St Barbara’s reports on its website as described above. I decline to assess this application on the basis that this claim falls away.
Although it is strongly arguable that the applicable law is PNG, I find that this should not be a determinative factor. A Victorian court may apply PNG law. In Hargood, which similarly considered the application of foreign tort law (in that case, those of Thailand), Davies J observed that the defendant:
has led no evidence, and the onus is on the Defendant in seeking the stay, to show there is any particularly complicated aspect to Thai law in relation to negligence or that it differs in a significant way from the law of Australia or that there are concepts novel to Australian law in relation to it.[76]
Analogously, there is no evidence supplied from the defendants to suggest that there is anything particularly complex about the application of PNG negligence law.
[76]Hargood [51].
Turning now to insurance arrangements.
Defendants’ insurance coverage
I accept the evidence of the defendants regarding insurance coverage.[77] There is a real prospect that their insurance arrangements will not cover some of the costs of this proceeding, as will be explained. Workers’ compensation insurance provided by CGI applies only to injuries sustained by an employee in the course of their employment, and to amounts awarded by a court in PNG and to litigation costs regarding the same. The limit is PGK K5,000,000. No determination has yet been made on coverage. The prejudice to the defendants of the claim continuing in Victoria is a loss of up to PGK K5,000,000 that this coverage would otherwise provide. At the time of the hearing this was quantified as approximately AUD $1.9 million.
[77]See: Appendix A of the proposed defendants’ reply submissions, filed on 12 September 2024, 10 – 18.
The defendants have excess insurance to cover for claims beyond PGK K5,000,000. That insurance is provided by Chubb and covers up to PGK K50,000,000. No determination has yet been made on coverage. The defendants say, and I accept, that this policy is likely to apply.
The defendants have insurance provided by MMI for PNG. No determination is made on coverage. This insurance is likely to apply to the PNG proceeding but not this proceeding.
The defendants have three other insurance policies, however they do not provide coverage for common law claims: QBE Insurance (PNG) Limited for salary continuance (claim settled for PGK K126,000 on 15 November 2019), QBE medical and repatriation expenses insurance (covered the cost of Mr Eade’s evacuation to Australia after the incident) and CGU and Accident and Health International Underwriting Pty Ltd death and permanent disability insurance.
In conclusion, if this proceeding continues, the prejudice to the defendants is that they lose the opportunity to claim about AUD $1.9 million of insurance coverage that they may have availed themselves of if the claim proceeded in PNG. There is a question as to what extent this prejudice is determinative of the application. The parties referred to authorities on the impact of insurance coverage. I now address the key authorities relied upon.
McGregor was concerned with a personal injury claim made by a Victorian veterinary surgeon who had sustained an injury whilst working for a veterinary hospital in England. In the course of her work, a horse kicked her in the face; she suffered facial, brain, and eye injuries. She sued, amongst others, the veterinary doctors who owned and operated the English veterinary clinic. The plaintiff claimed that her injury arose due to the hospital’s unsafe system of work. The veterinarians who owned and operated the clinic sought a stay of the proceeding on the ground of forum non conveniens. Notably, their insurance would not cover claims issued in an Australian Court. In his reasons, Brereton J stated that:
Where an employer has prudently obtained insurance cover in respect of potential liability, it is a matter of great prejudice that, because a former employee chooses to sue in a forum convenient to her but with very little connection with the dispute, and which the parties would not have contemplated as the forum in which a potential dispute might be litigated, the employer is deprived of that cover.[78]
[78]McGregor [65].
I readily accept the existence of insurance and the extent of cover is relevant.[79] Brereton J’s statement is not of general application to all employment-related claims. A distinguishing feature here is that Mr Eade was a FIFO worker. As the following cases demonstrate, each case will turn on its facts.
[79]See: Fleming [93] – [95].
Laccona v Beyer (‘Laccona’)[80] concerned a claim of damages arising from a motor vehicle collision in Fiji. The plaintiff lived in Sydney. The two defendants against whom the proceeding was stayed were the driver of the other vehicle involved in the collision (the second defendant), and the driver’s employer (the third defendant). They were resident in Fiji. (Other defendants did not reside in Fiji and did not take part in the application.) Daly AsJ held that Victoria was a clearly inappropriate forum. The second and third defendants had established actual prejudice if forced to defend in Victoria, and the plaintiff had demonstrated some actual prejudice if forced to litigate in Fiji. However, the preponderance of connecting factors was overwhelmingly in favour of the claim being dealt with by the courts of Fiji. Fijian law applied, the second and third defendants resided in Fiji, expert witnesses regarding traffic matters were likely to reside in Fiji, as did most lay witnesses, and the plaintiff was initially treated in Fiji. On the other hand, the only real connection with Victoria was that the plaintiff was treated in Victoria for some months, and the first defendant (driver of the vehicle in which the plaintiff was travelling) resided in Victoria. Her Honour held that it would be oppressive and vexatious to require the second and third defendants to defend the claim in Victoria in circumstances where their insurer had denied liability to indemnify them for any judgment in Victoria and refused to fund their defence costs. The third defendant had purchased ‘off the rack’ insurance. Her Honour contrasted this with circumstances where insurance coverage was negotiated. Laccona is distinguished from circumstances here, where sophisticated multi-layered insurance arrangements are in place.
[80][2013] VSC 403 (‘Laccona’).
Hardaker v Manu Island Resort (Fiji) Ltd[81] concerned tragic circumstances. The plaintiff’s husband and father had been killed in a boating collision during a family holiday in Fiji. The defendant holiday resort applied to stay the proceeding in New South Wales on the basis it was a clearly inappropriate forum. Johnson J refused the application, making the following findings with respect to the applicable law and insurance arrangements. Fijian law would apply to the tort claim, and as to the contract claim, there was a factual issue to be determined at trial that would affect which law applied. The resort was a substantial international one and involved global travellers so it could,
be expected readily that if a person staying at the resort is killed or injured, then any civil action arising from that will be likely litigated in the usual place of residence of the family of the deceased guest or injured guest.[82]
[81][2018] NSWSC 1863 (‘Hardaker’).
[82]Hardaker [105].
The insurance policy provided a territorial limit that would exclude New South Wales. Still, there was no evidence of the resort’s financial position that would assist in an assessment of actual prejudice if the proceedings were litigated without insurance cover. That is also the case here.
Wilson v Addu Investments Private Ltd[83] was concerned with a claim in the Supreme Court of New South Wales for damages arising from a boating accident. The Australian plaintiffs were holidaying at a resort in the Maldives and had taken a sunset cruise from the resort. They sued two companies: the resort and the resort’s water activity centre operator. Neither company had a presence in Australia. The defendant companies applied to stay the claim. Garling J dismissed their applications, making the following findings regarding applicable law, legal representation, and insurance arrangements. The law of the Maldives would apply regarding the determination of the claim based in negligence. There was no evident reason that applying Maldivian tort law would provide any complexity to the facts found relating to liability. As to the contractual claim, the facts determined at trial would affect the determination of the proper law of the contract. Garling J did not consider there to be any particular complexity with the application of contract law in the event that the law of the Maldives was applied. The plaintiffs’ lawyers were acting on a ‘no-win, no-fee’ basis and would not act (or fund an action) in the Maldives so there would be significantly more difficulties for the plaintiffs to access justice in the Maldives whereas the defendant had lawyers both there and in Australia.
[83][2014] NSWSC 381 (‘Wilson).
Garling J held that it was part of the resort’s business to encourage international guests to visit. As the resort’s guests were international, it must have been obvious to the officers of the resort that these guests would return home for treatment if they were injured. The resort could not then legitimately complain that the local court of an international visitor is clearly inappropriate.[84]
[84]Wilson [122] – [125].
Returning now to the circumstances here. It must have been obvious to the officers of Simberi that notwithstanding the governing law and insurance provisions, it was likely that an Australian FIFO worker would make any claim based on tort in Australia. Their own insurance provided for workers to return to Australia for treatment, if seriously injured, which is what occurred here. Mr Eade’s home remained in Australia. It was likely that he would make any tortious claim here, where he could rely upon the support of his family, medical providers, and easily access local lawyers. The employer was a subsidiary of St Barbara headquartered in Melbourne. Their complex insurance arrangements show that they carefully considered the insurance coverage. I rejected their submissions that Victoria is a clearly inappropriate forum because of the prejudice occasioned by their insurance arrangements.
Significant connecting factors between Victoria, the subject matter and parties
Witnesses
Mr Eade and his wife reside in Victoria.
Four medical witnesses reside in Victoria: Dr Anita Boecksteiner (orthopaedic surgeon, treating doctor), Mr William Edwards (foot and ankle surgeon, treating doctor), Dr Tin Zar Aung Thein (General Practitioner, treating doctor) and Dr Anthony Merz (orthopaedic surgeon who examined the plaintiff at the request of the Victorian WorkCover Authority).
Other medical witnesses reside outside Victoria, being: Thomas Gareet (the onsite medic who attended the scene of the incident), and Ludwig Bongis (first responder), Dr Kepas Kapeo (doctor who assessed and treated the plaintiff in PNG), Dr Karl Samuel (also in PNG, relevance unclear) and Dr Laken Mcgarvey (presumably at Cairns Base Hospital).
Other witnesses outside Victoria include David Kniter (supervisor), Johan ‘Daan’ van Pletzen (Manager of Security & OHS), Tim Richards (General Manager Simberi Operations), Bob Vassie (CEO and Managing Director of St Barbara), Ernest Esi and Brighton Ikupu (working with Mr Eade at the pylon when the incident occurred), Mr Molloy and Michael J Lee (forensic accountant).
Mr Eade lists current and former directors of St Barbara and Simberi. It is unclear if he intends to call all as witnesses. Whilst some reside in Victoria, most do not.[85] At the time of the accident, St Barbara was headquartered in Melbourne, Victoria. However, they have since relocated to Perth, Western Australia.[86]
[85]See: First Block affidavit [28] - [30].
[86]See: Ibid [28] – [29].
Witnesses outside Victoria can give evidence by audio-visual link, should that be necessary and appropriate.
Site view
There are photographs available of the immediate aftermath of the incident and an incident report. Witnesses are also available. If an expert witness wished to view the site, then that could be arranged between the parties, and their report could include photographs. However, it appears that work has been undertaken on the site following the incident. I doubt whether a site view of the incident will be necessary.
Documentary evidence
The defendants provided no evidence to contradict Mr Eade’s assertion that the relevant documents are located in Australia.
Juridical advantage
Ian Molloy is a barrister admitted to the Supreme Court of Queensland, and specialising in PNG law. Mr Molloy has provided an expert report, which is uncontradicted. The evidence of Mr Molloy demonstrates the following.
The limitation period for a claim in tort in PNG is six years per s 16 of the Frauds and Limitations Act 1988 (PNG). However, there is a more restricted three-year limitation period for personal injury claims arising out of a workplace accident per s 84(2) of the Workers’ Compensation Act 1978 (PNG).
The time to trial in PNG is generally about 12 months from issue. The National Court of Justice of PNG (where the claim would be heard) has a policy of judgment delivery within three months. Mr Molley anticipates a decision within a further three to twelve months. There are however cases that are outstanding for many years, some as long as eight years.
Per the applicable procedural rules, discovery does not apply to proceedings on a claim for damages arising out of bodily injury to any person. There is no provision for third party discovery.
Witnesses in PNG must generally give evidence in person. There are no compulsory means to require attendance of a witness located outside of the jurisdiction. It is likely the hearing would occur in Port Moresby where facilities are better than the regions. However, there is only one courtroom with a video facility, and it cannot be assumed that witnesses will be permitted to give evidence other than in person.
Under the Reciprocal Enforcement of Judgments Act Ch 50 (PNG), the Supreme Courts in Australia are prescribed courts whose money judgments may be enforced in PNG.
I find Mr Eade has a juridical advantage in issuing in Victoria. In PNG, Mr Eade will be barred from negligence claims against his employer. The defendants do not contradict this but say not all claims are barred. They say the claims against them as occupiers of the mine have been brought within time. So much may be accepted, however it is a significant prejudice to Mr Eade not to be able to proceed with the injury claim against his employer.
The discovery procedures and the availability of video-link facilities also give Mr Eade an advantage litigating in this Court.
There is an issue as to Mr Eade’s access to justice if the claim is litigated in PNG. Whilst he has initiated the claim in PNG with legal assistance, the solicitors who assisted in PNG were town agents of Mr Eade’s lawyers, not PNG lawyers. He would not have legal representation if the matter proceeded to trial in PNG. On the other hand, he has legal representation in this proceeding.
Is the proceeding an abuse of process?
Defendants’ submissions
This proceeding should be permanently stayed pending resolution of the County Court proceeding. It is prima facie vexatious and oppressive to commence a second action if an action is already pending with respect to the matter in issue. It is improper for Mr Eade to maintain parallel proceedings to protect his interests in the following circumstances.
The allegations made by Mr Eade in the County Court proceeding arise from the same factual matrix and put in issue some identical factual matters such as the identity of Mr Eade’s employer and degree of connection with Victoria.
The positions in the two proceedings are inconsistent for two reasons.
First, in this proceeding, it is alleged that Simberi is the employer whereas in the County Court it is alleged that St Barbara is the employer. The evidence shows Simberi is the employer.
Second, this proceeding has commenced without leave being obtained per s 335 of the WIRC Act to proceed against the defendants. Mr Eade has asserted he is not required to do so.[87] Notwithstanding this, leave is sought per s 335 in the County Court proceeding. Section 335 requires leave before issuing substantive common law claims. Mr Eade still needs to present his position regarding this question.
[87]Exhibit “JME-1” to the Edmeades affidavit, 35.
Alternatively, the proceeding should be temporarily stayed pending final determination of the County Court proceeding. That proceeding is more advanced and has not been stayed. It is listed to return in December 2024. The very premise of that proceeding is that leave is required to proceed against both St Barbara and Simberi, as discussed above.
Court resources ought to be taken into account. Multiplicity of proceedings on similar issues is undesirable and causes a waste of time and effort.
Plaintiff’s submissions
The County Court proceeding has remained on foot with no steps being taken. This is simply to preserve Mr Eade’s position concerning the s 335 WIRC Act gateway. Whether that will be required will not be known until the defendants file a defence in this proceeding.
The Victorian WorkCover Authority, now the defendant to the County Court proceeding, maintain that Mr Eade is not a worker.[88] If the defendants in this proceeding rely on s 335 of the WIRC Act, Mr Eade will be substantively prejudiced if the County Court proceeding is prematurely dismissed. He will be precluded from pursuing his claims for damages per s 338 of the WIRC Act. If the County Court proceeding is found to be unnecessary, then it will be permanently stayed.
[88]Block affidavit [16], [19]; Exhibit “LFB-1” to the Block affidavit, 31, 37 – 39.
There is no risk of inconsistent fact findings or the administration of justice being brought into disrepute. If the defendants do not rely on s 335 in this proceeding, then the County Court proceeding can be stayed. Conversely, if they do rely upon it, the County Court proceeding can be joined to this proceeding and the question of whether Mr Eade is required to pass through the serious injury gateway be determined as a preliminary point. The defendant cannot maintain the position that leave is required and the position that there is no entitlement to compensation in Victoria and so leave is not required.
Analysis – abuse of process
At the time of the hearing, the County Court proceeding remained on foot and was listed for administrative mention on 10 December 2024.[89] The question is whether this proceeding constitutes an abuse of process given the County Court proceeding.
[89]Block affidavit [23].
In Tomlinson v Ramsey Food Processing Pty Ltd,[90] the High Court coram stated that:
abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[91]
[90](2015) 256 CLR 507.
[91]Ibid [25].
In GLJ v Roman Catholic Church, the High Court referred to the principles concerning grants of permanent stay to prevent abuse of process:
… the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.[92]
[92]GLJ v The Trustees of the Roman Catholic Church for The Diocese of Lismore [2023] HCA 32 [3].
The defendants relied on Henry v Henry.[93] It concerned family law proceedings issued in Australia and Monaco. In that context, the coram stated it would be:
prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the court of this country if an action is already pending with respect to the matter in issue.[94]
[93](1996) 185 CLR 571.
[94]Ibid 591.
The existence of this proceeding and the County Court proceeding do not constitute exceptional circumstances so as to warrant a stay. They are neither vexatious nor oppressive. It was entirely proper to commence this proceeding in circumstances where the defendants (or the Victorian WorkCover Authority) say that Mr Eade is not covered by the WIRC Act.[95] It is entirely proper for the County Court proceeding to remain on foot when the defendants have reserved their position regarding whether leave is required to proceed per s 335 of that Act. As discussed below, once the defendants’ position is known in this proceeding, a decision can be made regarding case management. Until then, Mr Eade is entitled to protect his position. There is no risk of inconsistent fact findings given this. The proceedings are clearly different. I must add that it is regular and necessary for plaintiffs to make serious injury applications to proceed per s 335 before commencing a common law proceeding.
[95]Exhibit “LFB-1” to the Block affidavit, 31.
There is a distinction between permanent and temporary stays. Here, the defendants make the application in the alternative. I will now turn to the question of a temporary stay, and gratefully adopt the following summary of principles given by Hargrave J in UDP Holdings Pty Ltd v Ironshore Corporate Capital Ltd:
It is first necessary to note that there is a substantial difference between an application for a permanent stay, and an application for a temporary stay or adjournment pending the completion of other proceedings which are likely to impact the outcome of the proceeding in question. In Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd, Lockhart J pointed to the difference between the two forms of stay:
There is obviously a substantial difference between a motion for a permanent stay or dismissal of a proceeding and a notice of motion for a temporary stay or lengthy adjournment of a case. ... The court remains in full control of the proceeding before it when it is stayed only temporarily ...
Earlier, Lockhart J stated:
The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances, including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first ...
Lockhart J then proceeded to list a catalogue of factors to be taken into account by a court in considering whether to grant a temporary stay pending the determination of proceedings in another court involving the same or substantially similar issues:
In my opinion, relevant considerations to be taken into account in the present case include the following:
[1] Which proceeding was commenced first.
[2]Whether the [de]termination of one proceeding is likely to have a material effect on the other.
[3]The public interest.
[4]The undesirability of two courts competing to see which of them determines common facts first.
[5]Consideration of circumstances relating to witnesses.
[6]Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted [if the stay is not granted].
[7]The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
[8]How advanced the proceedings are in each court.
[9]The [application of the principle that the] law should strive against permitting multiplicity of proceedings in relation to similar issues.
[10]Generally balancing the advantages and disadvantages to each party.
In Commonwealth Bank v White (No 3), Warren J (as she then was) expressly approved this list of relevant factors, and described factor [10] as involving ‘weighing up issues of justice and convenience’. Moreover, as Warren J noted, the approach in Sterling Pharmaceuticals was referred to with approval by the High Court of Australia in Henry v Henry, and also in CSR Ltd v Signa Insurance Australia Ltd.[96]
(insertions original; citations omitted).
[96]UDP Holdings Pty Ltd v Ironshore Corporate Capital Ltd (2016) 51 VR 60 [27] – [30].
I decline to order a temporary stay on the ground that there is an abuse of process. This proceeding was issued a day after the County Court proceeding. The County Court proceeding is more advanced with one trial date already vacated.[97] There can be orderly management of the proceedings. Once the defendants clarify their position in this proceeding, and whether they rely upon s 335 of the WIRC Act, there will be clarity regarding whether Mr Eade needs to maintain the protective County Court proceeding. If the defendants rely on s 335, then it would be efficacious and appropriate to determine that issue first. It is premature to state whether that determination is made here or in the County Court. Usually, it would be made in the County Court. The outcome of that issue will affect the future conduct of this proceeding. I otherwise reiterate my analysis concerning the application for a permanent stay.
[97]Affidavit of Jessica May Edmeades, affirmed on 21 May 2024 (‘Second Edmeades affidavit’) [7].
I decline to stay or dismiss this proceeding.
Conclusion
I will make orders dismissing the defendants’ applications.
SCHEDULE OF PARTIES
| S ECI 2021 02316 | |
| BETWEEN: | |
| JASON JOHN EADE | Plaintiff |
| - v - | |
| ST BARBARA LIMITED (ACN 009 165 066) | First Defendant |
| SIMBERI GOLD COMPANY LTD | Second Defendant |
0
6
0