Fullford v Pearson

[2004] NSWSC 150

CITATION:	Fullford v Pearson & Anor [2004] NSWSC 150
HEARING DATE(S):	29/08/02, 24/10/02, 09/04/03
JUDGMENT DATE:	13 April 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	Defendants' motion dismissed; plaintiff's motion for amendment granted.
CATCHWORDS:	PRACTICE AND PROCEDURE: "long-arm" jurisdiction - action for damages for personal injury sustained in England - English defendants - whether this Court has jurisdiction - prospects of success in this Court because of expiry of limitation period - whether this Court an inappropriate forum - whether amendment of names of defendants should be allowed.
LEGISLATION CITED:	Limitation Act, 1969 (NSW) Limitation Act, 1980 (UK) NSW Supreme Court Act 1970 Supreme Court Rules - Parts 10, 11 & 20
CASES CITED:	Regie National de Usines Renault SA v Zhang (2002) 76 ALJR 551 Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Qantas Airways Ltd v Dillingham Corporation [1985] 4 NSWLR 113 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Oceanic Sun Line Special Shipping Company Inc v Fay (1987-8) 165 CLR 197 Agar v Hyde (2000) 201 CLR 552
PARTIES :	Scott Raymond Fullford - Plaintiff Kevin Pearson and Ian Aitken t/as Ellis Building - First Defendants EPA Development Partnerships Limited - Second Defendant
FILE NUMBER(S):	SC 20641/2001
COUNSEL:	M J Cranitch SC & H Marshall - plaintiff B Walker SC and G Nell - defendants
SOLICITORS:	Robert Foggo Lawyers - plaintiff Blake Dawson Waldron - defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Tuesday, 13 April 2004

20641/2001 – Scott Raymond FULLFORD v Kevin PEARSON and Ian AITKEN t/as ELLIS BUILDING & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff, Scott Raymond Fullford, is an Australian who was living in England in July 1998. He was employed there as a builder’s labourer and on 28 July 1998, while working at a building site, he fell from scaffolding and was seriously injured. He underwent hospital treatment in England and returned to this country in November 1998. He now resides at Glendale, New South Wales.

2 On 17 July 2001 the plaintiff’s Newcastle solicitor filed a statement of claim in this Court, seeking damages for personal injury. The defendants were named as Ellis Building Limited, said to be the building contractor which employed the plaintiff, and Dowdell Construction Management Services Limited, said to be the site manager for the construction. Both defendants were misnamed, and on 18 September 2001 the solicitors forwarded to the Sydney registry an amended statement of claim naming the current defendants: Kevin Pearson and Ian Aitken trading as Ellis Building and EPA Limited, as the building contractor, and EPA Development Partnerships Limited, as the site manager. Subject to the qualification that Mr Pearson and Mr Aitken have no interest in “EPA Limited” and do not trade under that name, upon which nothing turns for present purposes, these are the correct defendants. The amended statement of claim was filed on 21 September 2001.

3 In the meantime, on 26 July 2001 solicitors in England, on the instructions of the plaintiff’s Newcastle solicitor, filed a claim form in the Queen’s Bench Division of the High Court, also seeking damages as a result of the accident. That document was directed to the first named defendants in the amended statement of claim in this Court, that is, Kevin Pearson and Ian Aitken trading as Ellis Building (and EPA Limited). However, the claim form was not served and the time limited for doing so under the relevant rules of court has expired, as has the period during which an application for extension of that time might have been made. It would seem, accordingly, that that claim is defunct. By s11 of the Limitation Act, 1980 (UK) the time limit for bringing such a claim in England is three years from the date of the accident, although s33 of the Act gives the Court a discretion to extend that period in certain circumstances. The three year period, of course, has long since expired and no application to extend it has been made.

4 It is unnecessary to recite the somewhat convoluted history of the interlocutory proceedings which are before me. It is sufficient to say that the defendants seek orders that the amended statement of claim or its service upon them be set aside, or that the proceedings in this Court be dismissed or permanently stayed; while the plaintiff seeks orders remedying any irregularity attending the filing and service of the amended statement of claim, or granting leave to substitute the defendants named in that document for those in the original statement of claim. The defendants’ primary contention is that the plaintiff’s claim should be litigated in England rather than in this Court, and their notice of motion raises three issues:

a) whether this Court has jurisdiction to entertain the plaintiff’s claim;
b) if there be jurisdiction, whether the proceedings should nevertheless be stayed upon the basis that this Court is an inappropriate forum in which to determine them; and
c) if the proceedings were not to be stayed on that basis, whether the plaintiff’s claim in this Court has insufficient prospect of success to warrant putting the defendants to the trouble and expense of defending it here.

Amendment

5 The last of those issues raises the question whether the plaintiff’s claim is statute barred. Even if it were to be pursued in this Court, the relevant limitation period is that set by the Limitation Act (UK), that is, three years from the date of the accident. This is because in this Court the law to be applied would be the lex loci delicti: Regie National de Usines Renault SA v Zhang (2002) 76 ALJR 551, in the joint judgment at [61] ff. The English Limitation Act is a substantive, not a procedural, provision. (As it happens, the limitation period in New South Wales would be the same: s18A of the Limitation Act 1979.) That period expired on 28 July 2001, after the original statement of claim was filed but before the filing of the amended document. It is this question which gives rise to the applications concerning the amended statement of claim. It is convenient to deal with that issue first and it is necessary to examine the circumstances in which that document came to be filed.

6 As I have said, the amended statement of claim was filed in the Sydney registry after it was forwarded by the plaintiff’s solicitor under cover of a letter of 18 September 2001. That letter asserted that there had been “a slight mistake in the name of the parties” and sought amendment of the original statement of claim pursuant to a number of rules to be found in Pt 20 of the Supreme Court Rules.

7 The rules relied upon are as follows:

1. (1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
…
2. (1) A party pleading may, without leave, amend the pleading once at any time before the pleadings are closed.
…
4. (1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.
…
(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.

8 It will be seen that, apart from the provision for amendment without leave in r2(1), the other provisions envisage an order of the Court. In particular, r4(3) empowers the Court to order amendment of the name of a party even though at the time of the amendment the relevant limitation period had expired. If such an amendment is made it relates back to the date of filing the statement of claim, unless the Court otherwise orders: r4(5A). In the present case, the amended statement of claim was filed upon its receipt at the registry without any such order having been made.

9 The difficulty which the plaintiff faces arises from Pt 8 r11(3). It is necessary to set out only so much of that subrule as is relevant for present purposes:

11(3) Where in any proceedings a party is added otherwise than pursuant to an order under … Part 20 rule 4(3), the date of commencement of the proceedings so far as concerns him shall be -
(a) where he is added as a defendant – the date on which the amendment adding him as a defendant is made …

10 Accordingly, an amendment to a statement of claim which has the effect of adding a party, as opposed to the correction of a mistake in the name of a party in circumstances envisaged by Pt 20 r4(3), does not relate back to the date of filing of the statement of claim. The significance, for the purpose of limitation periods, of the distinction between the addition of a party and amendments of other kinds was examined by Clarke JA in Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 731-3. It was that case which led to the insertion of r4(5A) into Pt 20 (and, I take it, an amendment to Pt 8 r11(3), to which it is not necessary now to refer.) If the plaintiff’s amended statement of claim achieved the addition of the present defendants as parties within the meaning of Pt 8 r11(3), that would have been effective only from 21 September 2001, when that document was filed, by which time the limitation period had expired.

11 Hence, the plaintiff relies upon s81(1) of the Supreme Court Act, which provides:

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect -
(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings; and
(b) subject to subsections (2) and (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its powers under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.

Subsections (2) and (3) of that section are not material for present purposes.

12 Reliance is also placed upon the Court’s power to remedy defects nunc pro tunc reflected in Pt 1 r12, which provides:

The Court may dispense with compliance with any of the requirements of the rules, either before or after the occasion for compliance arises.

13 Counsel for the plaintiff submitted that, if an order for amendment had been sought at the time the amended statement of claim was filed, it would almost certainly have been granted, and the failure to obtain such an order is the type of irregularity capable of being remedied by s81. Counsel for the defendants submitted that there was no irregularity because the plaintiff was entitled to file the amended statement of claim without leave by virtue of Pt 20 r2(1), it having been filed before the close of pleadings and there having been no prior amendment. He added that, in any event, unless the case could be brought within the terms of Pt 20 r4(3), any order for amendment which might then have been made would still have been subject to Part 8 r11(3) and would have taken effect only when the amended statement of claim was filed. Plenary as the power conferred upon the Court by s81 of the Act might appear to be, no exercise of that power could override the mandatory terms of Pt 8 r11(3): Fernance, per Gleeson CJ at 724.

14 The analysis of counsel for the defendants is clearly correct. What is significant for present purposes is whether the plaintiff can substitute the present defendants for those named in the original statement of claim without falling foul of the Limitation Act. The only avenue by which that could be achieved is Pt 20 r4(3), whether the matter is approached as the invocation of the Court’s jurisdiction under s81 or as a fresh application for amendment. That subrule requires a finding of a mistake in the name of a party which is neither misleading nor such as to cause a reasonable doubt about the identity of the person intended to be made a party, and leaves a discretion in the Court even if those prerequisites are met. The expression “a mistake in the name of a party” has been afforded an expansive interpretation by the High Court in Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231, per McHugh J at 259-61. Let me turn, then, to the evidence.

15 The names of the defendants in the original statement of claim, Ellis Building Limited and Dowdell Construction Management Services Limited, were derived from information supplied by the plaintiff to his Newcastle solicitor. The solicitor wrote to his agents in England, the solicitors to whom I have earlier referred who filed the claim form in that country, asking them to make appropriate enquiries about those companies. On 29 June 2001, before he had received a reply, the plaintiff’s solicitor filed a statement of claim against them in the Newcastle registry of the Court. As it happens, later that day he received a fax from the agents informing him that neither company was listed in the United Kingdom. He asked the agents to enquire whether the insurer’s solicitors would accept service of a statement of claim.

16 On 6 July 2001 the solicitor received a notification from the Sydney registry that the statement of claim had been rejected because it needed to be verified. This was in error. Nevertheless, the solicitor had the document verified and on the same day forwarded it back to the registry. On 13 July he received a further notification from the registry, rejecting the statement of claim because the filing fee had increased. That same day he prepared a further letter to the Sydney registry (expressed, understandably, in somewhat testy language) enclosing the statement of claim with the balance of the filing fee. He arranged for agents in Sydney to file the document, and they did so successfully on 17 July.

17 On 19 July the solicitor was informed by his English agents that the insurer’s solicitors were not instructed to accept service or to waive any defect in the naming of the defendants. It was on 25 July that he received a further communication from those agents informing him of the correct names of the defendants (subject to the erroneous reference to “EPA Limited”), and it is those names which appear in the amended statement of claim forwarded to the registry on 18 September. As I have said, the limitation period expired on 28 July. The delay between 25 July and 18 September is not explained other than that the solicitor consulted senior counsel about the matter.

18 For the purpose of Pt 20 r4(3), the first question to be determined is whether there has been “a mistake in the name of a party”. As I have said, guidance about the scope of that expression is to be found in the judgment of McHugh J, with whom Brennan, Deane and Toohey JJ agreed on this point, in Bridge Shipping v Grand Shipping. What his Honour said is succinctly expressed in the headnote, that is, that the expression “covers not only cases of misnomer, clerical error and misdescription but also those where the plaintiff, intending to sue a person identified by a particular description, was mistaken as to the name of the person who answered that description”. In the present case, it is clear that the plaintiff intended to sue his employer and the site manager but was mistaken about the name of each of them. That mistake appears to me to be of the kind envisaged by the subrule. It would be necessary also to be satisfied that the mistake was not “misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party”, but I can see no reason why that requirement would not be met and, indeed, no argument was addressed to it. The real question is whether, nevertheless, the proper exercise of discretion would militate against allowing the amendment.

19 Counsel for the defendants pointed out that the plaintiff’s solicitor twice resubmitted the original statement of claim for filing after it had been rejected, at a time when he knew that neither of the defendants named in it was a listed company. More importantly, he became aware of the correct names of the defendants three days before the expiration of the limitation period but took no action to file the amended statement of claim until several weeks later, a fact for which no satisfactory explanation has been advanced. It is clear from the solicitor’s affidavit that he was well aware of the limitation period and, as I have said, the claim form in England was filed within time, immediately after the true identity of the defendants had been ascertained.

20 Notwithstanding these matters, I would consider it appropriate to allow the amendment, effective from the date on which the original statement of claim was filed. I would not conclude that the plaintiff should have visited upon him any fault on the part of his solicitor. Given that the amended statement of claim was filed within weeks of the expiry of the limitation period, it has not been suggested that the defendants would suffer any prejudice other than the loss of a limitation defence which is commonly the result of an amendment under r4(3).

21 However, whether any order should be made giving effect to the amendment depends upon the fate of the defendants’ application that the proceedings be terminated because the plaintiff’s claim should not be adjudicated in this Court. At this stage, my view that the plaintiff would be entitled to the amendment is relevant only to the defendants’ argument that the claim in this Court would be likely to fail because it is statute barred. Whether a claim has insufficient prospect of success to warrant putting overseas defendants to the trouble and expense of defending it is a matter properly to be considered in determining whether relief of the kind sought by the present defendants should be granted: Agar v Hyde (2000) 201 CLR 552, in the joint judgment at [55]. This is not such a case.

Jurisdiction

22 The plaintiff invokes the Court’s “long arm” jurisdiction, for which provision is made in Pt 10 of the Rules. Rule 1A of that Part sets out the circumstances in which originating process of this Court may be served outside Australia, as was done with the amended statement of claim in the present case. Apart from the Court’s inherent jurisdiction to stay proceedings before it, the source of the defendants’ claim for relief is to be found in Pt 11 r8(1), the relevant parts of which are as follows:-

8(1) The Court may, on application made by a defendant to any originating process …, by order -
(a) set aside the originating process;
(b) set aside the service of the originating process on the defendant;
…
(g) declare that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings;

(h) decline in its discretion to exercise its jurisdiction in the proceedings;
…

23 Part 10 r6A enables the present defendants, having been served outside Australia, to seek an order under Pt 11 r8. By r6A(2), the Court may make such an order:

… on the ground -

(a) that the service of the originating process is not authorised by these rules; or

(b) that this Court is an inappropriate forum for the trial of the proceedings.

Neither defendant has entered an appearance, as is permitted by Pt 11 r8(2).

24 Part 10 r1A sets out the circumstances in which a statement of claim may be served outside Australia, by reference to the nature of the proceedings and the extent of their connection with the State of New South Wales. If, as in this case, the defendant has not entered an appearance, a plaintiff requires the Court’s leave to proceed: Pt 10 r2. It is for the plaintiff to demonstrate that the case falls within one of the paragraphs of r1A: Agar v Hyde at [48]. In the present case the plaintiff relies upon para (e), which provides:

(e) where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring …

25 The amended statement of claim pleads causes of action in negligence and breach of statutory duty, the latter based upon various English regulatory provisions. A question arose whether it also pleaded breach of contract against the first named defendants, because of one paragraph in which reference is made to the plaintiff’s contract of employment. However, counsel for the plaintiff disavowed any such claim, and I take it that that paragraph was intended merely to allege the relevant duty of care. The allegations of negligence and breach of statutory duty are embraced by the expression “a tortious act” in r1A(e). Clearly, any tortious act alleged occurred in England. The issue is whether, nevertheless, the proceedings relate to “damage suffered in this State”, within the meaning of that paragraph.

26 Paragraph 8 of the amended statement of claim asserts that the plaintiff returned to this country on 12 November 1998 “and has been suffering loss and damage in New South Wales since that time”. Paragraph 7 specifies a number of injuries said to have been sustained as a result of the accident. However, neither in para 8 nor in any subsequent paragraph is the loss or damage said to have been suffered in this State particularised, nor have any such particulars since been furnished in a Part 33 statement or a DCM document. However, for the purpose of deciding whether the case falls within the relevant paragraph of r1A, the statement of claim may be supplemented by evidence: Agar v Hyde at [52].

27 Before me is an affidavit by the plaintiff, together with a bundle of medical reports. Parts of the plaintiff’s affidavit were objected to, but for present purposes it is not necessary to go beyond those parts to which no objection was taken. It is sufficient to say that it appears from this material that the plaintiff has significant continuing disabilities as a result of the accident, and has undergone a considerable amount of treatment since his return to New South Wales. That being so, I am satisfied that the case falls within r1A(e), that the defendants were validly served, and that this Court has jurisdiction in the matter.

Inappropriate forum?

28 The final question to be determined, then, is whether the proceedings should be stayed upon the basis that this Court is not the appropriate forum to entertain them. The defendants undertake, should they be successful, not to rely upon a limitation defence in proceedings in England. They bear the burden of demonstrating that this Court is a “clearly inappropriate forum”, that is, that “a trial in New South Wales would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment” to them: Renault v Zhang (supra) at [78], citing Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564-5.

29 The defendants rely upon a number of matters established by the evidence before me. The accident occurred in England and any acts or omissions said to amount to negligence or breach of statutory duty were done or omitted in that country. As I have said, the applicable law is that of England and the claim for breach of statutory duty is founded upon English provisions. The first named defendants, Mr Pearson and Mr Aitkin, reside in England and the second named defendant, EPA Development and Partnerships Limited, is incorporated there. All the defendants carry on business in England and none of them has any connection with New South Wales.

30 Apart from the plaintiff himself, all witnesses bearing on the question of liability, including a health and safety inspector who investigated the accident, reside in England. One of them, the site manager at the relevant time, would have great difficulty travelling to Australia because of work and family commitments. As I have said, the plaintiff was initially treated for his injuries in England and the doctors who cared for him still reside there.

31 From the affidavit of an English barrister retained to provide evidence about the relevant law and procedure in that country, it appears that there is no provision in England whereby any of these witnesses could be compelled to give evidence in New South Wales proceedings, whether by personal attendance or by video-link. On the other hand, the evidence of witnesses in the plaintiff’s case resident in Australia (principally, I gather, doctors and other health professionals engaged in his care here) could be given by video-link in England. There is provision in England for obtaining evidence from witnesses there for use in foreign courts, but this would be in deposition form and would lack the cogency of oral evidence. In addition, counsel for the defendants would not have those witnesses immediately available for conference in preparation for the cross-examination of the plaintiff.

32 In addition, the defendants may wish to bring cross-claims seeking contribution or indemnity from other parties: in particular, the company which erected the scaffolding from which the plaintiff fell and another company which provided a hoist for use at the site. These are also English companies, and their joinder in proceedings in New South Wales could well give rise to applications to stay the proceedings against them upon the basis that this Court is not the appropriate forum. Obviously, it would be preferable that the plaintiff ‘s claim and any cross-claims be dealt with at the same time in the same jurisdiction: cf Qantas Airways Ltd v Dillingham Corporation (1985) 4 NSWLR 113 at 117-8 (Rogers J).

33 In response, the plaintiff relies upon his own affidavit and three affidavits of his Newcastle solicitor. I have already mentioned that parts of the plaintiff’s affidavit were objected to, and objection was also taken to a number of passages in the solicitor’s affidavits. With a couple of exceptions to which I shall turn in a moment, it is again possible to deal with this aspect of the matter without reference to the evidence the subject of objection.

34 Since returning to Australia the plaintiff has had a relatively modest income, derived from his employment and a disability pension. Although working only about twenty-nine hours per week, he has found it difficult to work for that long because of the state of his health. He and his wife separated in January 2002. The marital home has been subject to a mortgage which secures consolidated debts, and since the separation he has met the mortgage repayments, the rates and other expenses associated with the home. He has been caring for the children of the marriage for several days each week and has found this to be a difficult task.

35 The plaintiff’s wife would be required to give evidence of his pre-accident health and the effect of the accident upon him. He has deposed that he would be unable to afford to travel with her to England. He has also deposed that he would have difficulty undertaking the journey because of his physical disabilities. Objection was taken to the form of this evidence, but both those propositions appear to me to be reasonable inferences from other evidence the admissibility of which was not questioned.

36 It does appear that most of the plaintiff’s case on damages will relate to his treatment since his return to Australia and the principal witnesses would be those who have treated him here. No doubt, the evidence of those witnesses and, indeed, of his wife could be received in England by video-link. On the other hand, it would obviously be desirable that the plaintiff himself be present at the hearing. The evidence of witnesses resident in England could be received by video-link at a hearing in New South Wales, and counsel for the plaintiff argued that there is nothing to suggest that any of them would be unwilling to give evidence. (I put to one side a worker on the site who may be the only eyewitness to the accident, and whose present whereabouts are unknown.)

37 Put shortly, the plaintiff’s case is that the accident occurred while he was standing on planks secured by the scaffolding, attempting to grasp the end of an electric lead which was being thrown up to him by the fellow worker to whom I have just referred. The surface of the planks contained small particles of brick which had been dropped from barrows lifted by the hoist. This caused him to lose his footing as he reached out to catch the electric lead. Counsel for the plaintiff questions how any cross-claim against the suppliers of the scaffolding and the hoist could arise because the plaintiff’s claim does not call into question the erection of the scaffolding, the operation of the hoist, or the maintenance of either of them by their suppliers. Rather, the plaintiff alleges that the defendants failed to institute a safe system for the provision of electrical lead to the relevant part of the site and to keep the planks free of rubble. The evidence before me establishes no more than that cross-claims against those suppliers are under consideration and inquiries about them are continuing, and counsel for the defendants did not explain how any such cross-claim might be framed.

38 The High Court has recognised that, in applying the test referred to in para 28 of these reasons, guidance is to be found in the discussion by Lord Goff of relevant “connecting factors” and “legitimate personal or juridical advantage” in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 477-8, 482-4: see the joint judgments in Voth v Manildra Flour Mills (supra) at 564-5 and Henry v Henry (1995-6) 185 CLR 571 at 587. In the latter case the Court embraced Lord Goff’s observation in Spiliada (at 482) that the fundamental question is where the case may be tried “suitably for the interests of all the parties and for the ends of justice”. To answer that question in the present case involves a discretionary exercise, considering the competing interests of the parties in the light of the persuasive burden born by the defendants, and recognising that a stay should be granted only in a “clear case”: Oceanic Sun Line Special Shipping Company Inc v Fay (1987-88) 165 CLR 197, per Deane J at 247-8.

39 None of the factors relied upon by the parties is decisive of itself. On the limited evidence before me, it does seem that there is a real issue about liability. On the other hand, while there may well be cross-claims between the first and second named defendants, I find the prospect of cross-claims against the suppliers of the scaffolding and the hoist to be little more than speculative. Even if those claims were to be pursued, I cannot say to what extent that would add to the evidence which would have been called in any event. It may transpire that some of the evidence on the question of damages will not be in contest, but at this stage no assumption can be made about that.

40 Clearly, a number of factors favour the hearing of the case in England: that the accident occurred there, that the defendants reside and carry on business there, that the witnesses as to liability (except the plaintiff) and some of the witnesses as to damages also reside there, and that the applicable law is that of England. On the other hand, the plaintiff himself and most of the witnesses on damages reside in New South Wales. Wherever the case is heard, some witnesses will have to travel overseas or give their evidence by video-link or deposition. No doubt, it would be advantageous for the first named defendants and a representative of the second named defendant to be present at the hearing, as it would be for the plaintiff. No doubt also, it would be expensive and inconvenient for the defendants, or any of them, to travel to this country. However, there is no evidence before me about their capacity to do so, whereas I am satisfied that the plaintiff faces real difficulty, both financial and physical, in travelling to England. In all these circumstances, I am not satisfied that this Court is an inappropriate forum for the hearing of these proceedings.

41 Accordingly, the defendants’ motion is dismissed. I grant the plaintiff leave to amend the original statement of claim by substituting the names of the present defendants, that is, Kevin Pearson and Ian Aitken trading as Ellis Building, as the first named defendants, and EPA Development Partnerships Limited, as the second named defendant. I think it preferable to treat this as a fresh order for amendment, effective from the date of filing of the original statement of claim, rather than an exercise of the Court’s jurisdiction under s81(1) of the Supreme Court Act. Particularly is this so because it appears that the inclusion of the words “and EPA Limited” in the description of the first named defendants was in error. A further statement of claim, amended accordingly, should be filed within 14 days.

42 The parties have liberty to apply and, if necessary, I shall hear argument on costs.

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Last Modified: 04/14/2004