Isaacman v King (No.2)

[2025] NSWSC 381

Supreme Court

New South Wales

Medium Neutral Citation:

Isaacman v King (No.2) [2025] NSWSC 381

Hearing dates:

21 February 2025; Last written submissions received 13 March 2025

Date of orders:

30 April 2025

Decision date:

30 April 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   The whole of these proceedings, Isaacman v King (2024/0004060), except for Order 3 below, be, with effect from seven days from the date of the publication of this judgment, stayed.

(2)   Order 1 will become effective provided that, within seven days of the publication of this judgment, the defendant by her solicitors is to file and serve a written undertaking to the Court to the effect that, in the event that the plaintiff brings civil proceedings in the State of New York concerning the subject matter of these proceedings, the defendant will not plead any defence based upon any statute or other law applicable in the State of New York relating to the limitation of actions provided:

(a)   the plaintiff commences his proceeding in New York within three months of the date upon which the stay of these proceedings comes into effect; and

(b)   the claims were not statute barred at the time the plaintiff commenced this proceeding in this Court.

(3)   The plaintiff is to pay the costs of the defendant’s forum non conveniens Motion.

Catchwords:

PRIVATE INTERNATIONAL LAW – Jurisdiction – Non-exercise of jurisdiction – Forum non conveniens – Connecting factors – Application of the principles in Voth v Manildra Flour Mills – Whether the Supreme Court of New South Wales is a clearly inappropriate forum – Where neither plaintiff nor defendant has any real or substantive connection with the forum – Where the facts giving rise to the cause of action occurred outside the jurisdiction of the forum – Where the cost of litigating a claim in an inappropriate forum will be unduly excessive

PRIVATE INTERNATIONAL LAW – Applicable law – Pleading of foreign law – Pleading of New York Public Health Law

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 s 7

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5(2)

New York Public Health Law s 2307

Uniform Civil Procedure Rules 2005 (NSW) r 6.43

Cases Cited:

Isaacman v King [2024] NSWSC 1291

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Steven Isaacman (Plaintiff / Respondent)
Meaghan King (Defendant / Applicant)

Representation:

Counsel:
J Glissan KC / J Charlton (Plaintiff / Respondent)
Dr N Petrie (Defendant / Applicant)

Solicitors:
Glissan & Associates (Plaintiff / Respondent)
Robinson Gill Lawyers (Defendant / Applicant)

File Number(s):

2024/40601

Publication restriction:

Not Applicable

JUDGMENT

1. The plaintiff, Steven Isaacman, brings proceedings against the defendant, Meaghan King, for damages arising by reason of various causes of action in accordance with the law of New York. The claims are based upon the fundamental assertion of fact that the defendant was responsible for transmission to the plaintiff of the Herpes Simplex Virus Type 2 (“HSV-2 virus”) with which the plaintiff claims that he is now infected.

2. The proceedings were initially irregularly constituted and pleaded. The details of the irregularity in the commencement of proceedings, and the orders which I made to correct those irregularities can be found in my reasons in Isaacman v King [2024] NSWSC 1291 (“the first judgment”).

3. Much of the background detail, and contextual information, is contained in the first judgment and does not need to be repeated here. Consequent upon the orders which were made in the first judgment, the plaintiff has filed and served a Statement of Claim.

Defendant’s Motion for a Stay

4. The defendant has instructed Robinson Gill Lawyers in the State of Victoria. Without filing a Notice of Appearance, the defendant has brought a Motion seeking orders to the following effect:

“The proceeding be stayed on condition that the defendant in any civil proceedings which the plaintiff brings in New York concerning the subject-matter of these proceedings, the defendant undertakes not to plead any defence based upon any statute or other law relating to the limitation of actions, provided:

(a)   the plaintiff commences his proceeding in New York within three months of the Supreme Court of New South Wales ordering a stay; and

(b)    the claims were not statute barred at the time the plaintiff commenced this proceeding in the Supreme Court of New South Wales.”

5. The defendant also sought her costs.

6. The defendant made plain that in filing such Motion (to which I will refer as the “forum non conveniens Motion”), she did not accept that this Court was the appropriate forum for the determination of the plaintiff’s claim.

Other Notices of Motion

7. In addition, there are two other Motions on foot. The first of these other Motions has been filed by the defendant seeking an order that the proceeding be transferred to the Supreme Court of Victoria in accordance with s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). I will refer to this Motion as the “Cross-Vesting Motion”.

8. The plaintiff, after the hearing concluded and whilst the judgment was reserved, filed a Notice of Motion on 13 March 2025 seeking orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), or pursuant to the inherent jurisdiction of the Court, restraining publication of any information which would tend to reveal the identities of the parties to the proceedings in either New South Wales or Victoria. He also sought orders that the Court substitute pseudonyms for the names of the parties. I will refer to this as the “Non-Publication Motion”.

9. It is appropriate, as the parties agreed, for the Court to determine the form non conveniens Motion first.

10. This judgment deals with that forum non conveniens Motion.

Factual Background

11. The underlying facts and proposed causes of action are largely to be found in the first judgment from [5] through to [13].

12. Evidence filed for the purpose of the forum non-conveniens Motion establishes that the plaintiff is a citizen and resident of the United States of America. It establishes that the defendant is an Australian citizen who travels extensively throughout the world. She grew up in Victoria and her family live in Victoria. When in Australia, she would ordinarily be resident in Victoria. It is not said that either party resides in New South Wales.

13. The relationship giving rise to the causes of action upon which the plaintiff has sued for damages was commenced in the State of New York in the USA in about January 2019 and continued for about three and a half years. The relationship broke down in or around mid-2022. By that time, the plaintiff claims that he had been infected with the HSV-2 virus.

14. As is plain from the plaintiff’s pleading, the causes of action upon which he relies arose under the law of the State of New York. The plaintiff has provided a Foreign Law Notice pursuant to r 6.43 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) which records that he relies upon the law of New York and, in particular, s 2307 of the Public Law of the State of New York, being a criminal statute. He claims common law actions available to him under the law of New York arising from that criminal statute.

15. The plaintiff’s evidence is that he is the founder and Chief Executive Officer of a company called PHD BioSciences and another company called PHD Skin Care. PHD BioSciences is a “commercial stage company developing products to treat and prevent disease”. The company is currently focused predominantly on the treatment and prevention of skin cancer. It holds a number of patents in the United States, Australia and several other jurisdictions for a particular drug which is available on prescription and is sold globally, including in Australia.

16. PHD Skin Care also sells non-prescription suncare products globally. Neither PHD company has an established business in Australia, but both sell products in the Australian market amongst other countries.

17. On 21 December 2021, the plaintiff was granted a Temporary Work (Sub-Class 400) Visa for a maximum period of six months stay in Australia from the date of first arrival. The activity relevant for the visa was said to be “highly specialised work”. The proposer of the visa was “Specialised Therapeutics Pty Ltd”.

18. The visa was subject to conditions. The relevant condition was a work limitation which required the plaintiff, in the position of the visa holder, to continue to undertake the identified activities, not undertake any activities or any work for another person which were inconsistent with the purpose of the visa and not be self-employed.

19. The application for the visa was supported by the Chief Executive Officer of Specialised Therapeutics, which was described as a “international bio‑pharmaceutical company with strategic focus and expertise in Australia, New Zealand and South-East Asia with offices in Kew, Victoria”. It was also supported by the Victorian Government.

20. The plaintiff’s evidence is that, whilst he held the Visa, he resided in Australia for approximately four months in both Sydney and Melbourne. He visited Queensland. He seems to have been engaged with a range of people promoting PHD products, engaging in business development activities, organising domestic clinical trials and “laying foundations for future expansion of my business into Australia”.

21. Since that time, it appears that the plaintiff has only infrequently visited Australia. The dates and periods of those trips are not before the Court. During the course of their relationship, Dr Isaacman would spend time with the defendant and stay at her home in Victoria.

22. The plaintiff says that he has several close friends who currently live in or around beachside suburbs in Sydney and he says that the last time he visited these friends “… I became a member of the North Bondi RSL Club”.

23. The evidence is silent as to whether he has obtained any further visa since that which he obtained in 2021, which would permit him to work in Australia.

24. There is no evidence before the Court as to whether the products sold by PHD BioSciences in Australia are a substantial part of the company’s sales or what proportion of sales they represent. Clearly, if the sales deposed to by Dr Isaacman have taken place, they have not required his presence in Australia to affect the supply of those products to retail distributors.

Expert Evidence

25. In an affidavit sworn 3 February 2025, Mr Shaun Murphy, an Attorney in California who is a member of the firm Slovak, Baron, Empey, Murphy & Pinkney LLP, informs the Court that he is the plaintiff’s American lawyer. Amongst other things, he informs the Court that, subject to any limitation periods which may be pleaded against him by the defendant, the plaintiff has available causes of action based on the law of the State of New York arising from the transmission of the HSV-2 virus in:

1. battery;

2. negligence;

3. negligence per se (violation of statute);

4. intentional misrepresentation;

5. intentional concealment;

6. intentional infliction of emotional distress; and

7. negligent infliction of emotional distress.

26. He says that in his opinion, in all likelihood, a court in the State of New York would be able to exercise personal jurisdiction over the defendant. That exercise of personal jurisdiction would require commencing proceedings and personally serving the defendant.

27. Insofar as he represents the plaintiff, Mr Murphy informs the Court that at no time has Dr Isaacman filed any lawsuit in the State of New York or any other State in the United States of America against the defendant with respect to the HSV-2 infection.

28. He says that there has been correspondence sent to the defendant for the purpose of attempting a pre-litigation resolution of the matter. That correspondence was sent on a without prejudice basis. Mr Murphy has been careful not to include the contents of any such correspondence. The letter of “demand” was not responded to by the defendant.

29. A letter was sent to the defendant’s mother on 27 September 2022, which demanded in respect of “… claims by Dr Isaacman against the defendant” that the defendant’s mother preserve all documents or electronically stored information in her care, custody or control, that may be relevant to the claim by the plaintiff against the defendant:

“… including without limitation, documents and [electronically stored information] … regarding Ms King’s statements about Dr Isaacman, her medical records, and any other matters that may effect the resolution of the Claim.”

30. Unsurprisingly, Mr Murphy did not receive a response to that letter of demand.

31. About two weeks after that letter, Mr Murphy sent a letter to Lander & Rogers, Lawyers, apparently based upon an understanding that Lander & Rogers represented a King family-owned company and members of the King family. That letter included a “draft complaint that we intend to file on Dr Isaacman’s behalf if we are unable to resolve this matter”.

32. The letter also noted that court proceedings in the United States “… are public and information regarding pending cases is generally available to anyone”. It also noted that, if there was no response by the defendant to the proposed civil lawsuit, that there would be a default judgment for Dr Isaacman:

“… allowing us to recover against Ms King through a variety of court orders that include wage garnishment; asset liens; and other mechanisms that are standard in the United States.”

33. It is clear on the evidence of Mr Murphy that the letters of demand and threat to commence litigation, were not responded to. The absence of any responses did not result in the commencement of any proceedings in the State of New York, or in any other State in America.

34. The defendant obtained and read an affidavit of Mr Christopher Paparella, an attorney who practices in the State of New York as a partner of the firm Steptoe LLP. Mr Paparella notes that with respect to the tort claims identified by Mr Murphy, there is no requirement under New York law for any exchange of pre-suit correspondence before a lawsuit can be commenced on the claims. He notes that a claim is commenced by the filing of a complaint and the service of a summons upon a defendant. He notes that, in his experience, in many cases the summons is the first document that a defendant receives about a lawsuit having been commenced. He does note that some parties choose to send pre-suit demand letters. He also says that, in his experience, it is common for a prospective defendant to let a pre-suit letter go unanswered.

Applicable Legal Principles

35. There is little difference between the parties with respect to the applicable legal principles.

36. The parties have accepted that the relevant law was as set out by the plurality judgment (Mason CJ, Deane, Dawson and Gaudron JJ of the High Court of Australia) as contained in the judgment of the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 (“Voth”). The following principles emerge from Voth which are relevant to the determination of these proceedings:

1. the onus is on the defendant to persuade the Court that a stay should be granted;

2. the question is one of whether this Court is a “clearly inappropriate forum” and not that an alternative forum may be more convenient or appropriate;

3. it is relevant to consider whether there is another forum which can provide relief to a plaintiff, or put differently, whether the plaintiff can obtain justice in another forum; and

4. the fact that the law of the forum is not the applicable law to resolving the rights and liabilities of the parties, but a foreign law is applicable, does not of itself establish that the local court is clearly inappropriate, but is a significant factor for the local court to consider.

37. Both parties drew attention to a passage in the judgment of Voth at p 565, where it was said by the plurality in respect of applications to stay proceedings at common law, that:

“We respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada (at 465), namely that the primary judge should ‘be allowed to study the evidence and refresh’ his or her memory of the relevant law ‘in the quiet (of his or her Chambers) without expense to the parties’; that he or she should not be burdened by unhelpful reference to other decisions on other facts; and ‘that submissions will be measured in hours and not days’. The qualification is that we think that, in the ordinary case, counsel should be able to furnish the primary judge with any necessary assistance by a short, written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (ie ‘clearly inappropriate forum’) grounds.” (footnotes omitted)

38. In this case it was not possible to deliver an ex tempore judgment having regard to an issue raised during the course of submissions upon which the parties were granted leave to file further submissions. However, the brevity of this judgment reflects the identified approach.

Discernment

39. Having regard to all of the submissions by both parties, I have reached the view that the Supreme Court of NSW is a clearly inappropriate forum to hear and decide the plaintiff’s claim against the defendant for damages.

40. I note that the fact that, pursuant to the UCPR, the plaintiff, having commenced proceedings, had an entitlement to serve those proceedings on the defendant in the State of Victoria, does not carry with it any presumption that the Supreme Court of NSW is an appropriate forum to hear and determine the proceedings. The determination of whether this Court is a clearly inappropriate forum has regard to a broader range of factors. Necessarily, the fact that the plaintiff has chosen to commence proceedings in this jurisdiction is an inherent part of that assessment.

41. In coming to my conclusion, I have considered and given weight to the following factors.

42. Neither party has any real or substantive connection with this forum. Leaving aside visits of a short period of time; the evidence does not demonstrate that the defendant has any connection at all with the State of New South Wales. The evidence demonstrates that, for a period of about four months in 2022, the plaintiff resided in both Sydney and Melbourne and engaged with a range of people to see if his business could be expanded into Australia. During that time, he also visited Queensland. The evidence does not establish that during this period the plaintiff laid down any substantial connections with the State of New South Wales. The evidence does not establish that the plaintiff has any substantial business based in New South Wales, nor that he has continued to visit New South Wales on any identified occasion. I do not regard the fact that the plaintiff has friends who currently live in Sydney and that, on one occasion when he visited those friends, he became a member of a licensed club, as establishing any connection at all with the forum.

43. The relationship between the parties and their conduct to each other, together with the facts giving rise to the cause of action, all occurred outside of this jurisdiction and have no direct or indirect link or connection with New South Wales. I am satisfied that all of the relevant facts and conduct occurred in the State of New York, and some evidence relevant to that conduct may be of interactions in the State of Victoria.

39. The plaintiff does not plead or allege that he has suffered any injury or damage in the State of New South Wales. It is not claimed that he has suffered any loss in the State of New South Wales. He does not claim that the businesses with which he is associated will suffer loss in this State.

40. The causes of action pleaded arise under the law of New York - in particular, s 2307 of the New York Public Health Law which criminalises conduct involving a person who knowingly has sexual intercourse with another person whilst they are infected with a sexually transmitted infection. The section provides that such conduct is a misdemeanour which can be punished by criminal sanctions.

41. For this Court to try this action, it would need to receive expert evidence of the applicable statute and common law of the State of New York, including any law relating to the nature of available damages and their assessment. Whilst the determination of foreign law is a question of fact to be decided by a court hearing the proceedings, the fact is that experts in foreign law will need to be retained and will need to provide reports about that foreign law and to give evidence upon it in this Court if there be any dispute, will lead to significantly greater costs and expense for both parties if the case is tried in this jurisdiction.

42. In this respect, both parties accepted that the courts of the State of New York had jurisdiction to determine the plaintiff’s claims and that such jurisdiction could be exercised in personam against the defendant, whether she chose to appear or not. Otherwise put, there is another forum where the plaintiff can obtain justice. The undertaking proffered by the defendant if a stay is granted ensure that this is so.

43. Neither party has assets in this jurisdiction. The consequence of this would be that, if the plaintiff succeeded in obtaining an award for damages, any judgment reflecting that award would need to be enforced in some other jurisdiction. Equally, if the plaintiff did not succeed in establishing his claims, and the defendant obtained the usual order for costs having been successful, the enforcement of that judgment for costs would need to take place somewhere other than the State of New South Wales. On any view, the costs of enforcing either a judgment for damages, or a judgment for costs outside of this jurisdiction would result in significant costs and expense for the parties.

44. Finally, in looking overall at the proceeding, it is clear that it simply has no connection at all with this jurisdiction. Both parties would be put to significant costs and expense in litigating a claim in a jurisdiction with which neither has any connection.

45. For all of these reasons, and having regard to the facts which I have laid out, I am well satisfied that the Supreme Court of New South Wales is a clearly inappropriate forum for the determination of these proceedings.

46. The plaintiff’s forum non conveniens motion succeeds. A stay of these proceedings will be granted.

Other Notices of Motion

52. In light of my conclusion that the appropriate order is for the stay of these proceedings because this Court is a clearly inappropriate forum for the determination of this suit, it would not be appropriate for this Court to go on and determine any further issue between the parties such as those raised by the cross-vesting motion or the non-publication motion.

53. The cross-vesting motion could have the effect of requiring the plaintiff to litigate in a forum which he may decide, is not where he wishes to litigate this claim. It would impinge upon his choice of jurisdiction. He can choose to litigate in the State of Victoria, if he wishes.

54. As to the non-publication motion, given that the proceedings are to be stayed, no useful purpose is to be served by the making of any non-publication or pseudonym orders.

55. As well, given that the proceedings are to be stayed, in my view it is inappropriate for the Court to make any further interlocutory orders. It would follow from a grant of a stay of the whole of the proceedings, that a stay on the two interlocutory Motions will come into effect.

Orders

56. I make the following orders:

1. The whole of these proceedings, Isaacman v King (2024/0004060), except for Order 3 below, be, with effect from seven days from the date of the publication of this judgment, stayed.

2. Order 1 will become effective provided that, within seven days of the publication of this judgment, the defendant by her solicitors is to file and serve a written undertaking to the Court to the effect that, in the event that the plaintiff brings civil proceedings in the State of New York concerning the subject matter of these proceedings, the defendant will not plead any defence based upon any statute or other law applicable in the State of New York relating to the limitation of actions provided:

1. the plaintiff commences his proceeding in New York within three months of the date upon which the stay of these proceedings comes into effect; and

2. the claims were not statute barred at the time the plaintiff commenced this proceeding in this Court.

3. The plaintiff is to pay the costs of the defendant’s forum non conveniens Motion.

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Decision last updated: 06 May 2025