Lopez v HBS (PNG) Limited
[2018] ACTSC 190
•29 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lopez v HBS (PNG) Limited |
Citation: | [2018] ACTSC 190 |
Hearing Date: | 11 April 2018 |
DecisionDate: | 29 June 2018 |
Before: | McWilliam AsJ |
Decision: | See [27] |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedure Rules 2006 r 6504(1) – application to set aside originating process – whether leave required – whether Australian Capital Territory is an inappropriate forum – where incident occurred in Papua New Guinea and no connecting factors to the Territory – originating process set aside |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 6502, 6503 and 6504 |
Cases Cited: | Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 Bradley v Placements (PNG) Ltd [2014] QSC 016 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
Parties: | Gary Francis Lopez (Plaintiff) HBS (PNG) Limited (Defendant) |
Representation: | Counsel Mr TJ Lambert (Plaintiff) Mr D Barnett (Defendant) |
| Solicitors Baker Deane & Nutt (Plaintiff) Ashurst (Defendant) | |
File Number: | SC 381 of 2017 |
Introduction
On 11 November 2015, the plaintiff arrived in Papua New Guinea (PNG) to commence an assignment as an estimator with the defendant, a company alleged to have been in the business of providing heavy plant equipment and construction services.
The allegations in the substantive proceedings, if ultimately proven, are disturbing in that on 20 November 2015, at about 1.00 am, the block of residential units in which the plaintiff was sleeping (described as the HBS Compound) was attacked by a local gang of more than 20 people, including an attack upon the security guard stationed there, which the plaintiff witnessed. During the attack, members of the gang assaulted the plaintiff with club-like weapons, and shot him in the left side of his chest with an arrow, which remained lodged there.
The plaintiff has commenced proceedings in this Court by originating claim filed 29 September 2017 (Claim), claiming breach of contract and negligence on the part of his employer, as a result of which he suffered personal injury.
The present application
The employer has brought an application, filed on 20 February 2018, to set aside the originating process. The basis for the application is r 6504(1) of the Court Procedure Rules 2006 (ACT) (Rules), which provides relevantly as follows:
R 6504 Court’s discretion whether to assume jurisdiction
(1)On application by a person on whom an originating process has been served out of Australia, the court may dismiss or stay the proceeding or set aside service of the originating process.
(2)Without limiting subrule (1), the court may make an order under this rule if satisfied that –
(a) service of the originating process is not authorised by these rules; or
(b) the court is an inappropriate forum for the trial of the proceeding; or
(c) the proceeding has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the proceeding.
[Emphasis added]
The defendant raises an issue of leave being required to serve the Claim (and not yet obtained), on the basis of rr 6502 and 6503 of the Rules, because it says the alleged tortious act happened outside the Australian Capital Territory (ACT), the damage was sustained outside the ACT, the contract was entered into in PNG, and the law governing the contract, including the forum for resolving any disputes, was agreed to be that of PNG.
Under r 6503(5) of the Rules, the Court may give leave to serve an originating process out of Australia if satisfied that:
(a) the proceeding has a real and substantial connection with the ACT; and
(b) the ACT is an appropriate forum for the trial; and
(c) in all the circumstances the court should assume jurisdiction.
[Emphasis added]
There was an interesting argument between the plaintiff and the defendant as to whether the contract between them was formed in the ACT where emails were received and sent by the plaintiff, or whether it was created by a signed document once the plaintiff arrived in PNG. In short, if the contract was formed in the ACT, then leave was not required to serve the Claim. If the position were found to be otherwise, then leave was required.
However, it is unnecessary to determine that issue separately because, as can be seen from the words emphasised in rr 6503 and 6504 above, if the ACT is not “an appropriate forum” for the trial, then the Court is not empowered to grant leave. Similarly, if the Court is “an inappropriate forum” for the trial, then the Court may set aside the Claim.
The language used distinguishes between the “ACT” and the “court”, and in the case of r 6504 there remains a residual discretion not to assume jurisdiction: see Esanda Finance Corporation Ltd v Wordplex Information Systems Ltd (1990) 19 NSWLR 146 at 154 – 155, which dealt with similar procedural rules. However, for the purposes of this application, I consider that they are distinctions without a difference.
Further, if leave was required, there is an additional hurdle for the plaintiff of establishing a real and substantial connection with the ACT. Again, on the considerations relevant to this case, if the plaintiff cannot establish any real and substantial connection with the ACT, then I do not think the ACT is an appropriate forum for the trial.
Evidence on the applications
The plaintiff relied on an affidavit sworn by him on 7 April 2018. The defendant relied on an affidavit affirmed on 19 February 2018 by Mr Jason Zoller, its Chief Executive Officer, and of Mr Paul Vane-Tempest sworn on 20 February 2018, the solicitor on the record for the defendant.
None of the deponents were cross-examined and I have accepted their evidence for the purposes of resolving this application. I have not found it necessary to resolve any factual controversy given the approach taken to the application, outlined above.
Considerations relevant to whether the Court is an inappropriate forum
The defendant contends that the consulting agreement between the parties contains an exclusive jurisdiction clause. It is in very specific terms:
8 Governing law
This agreement shall be construed in accordance with and governed for all purposes by the laws of PNG applicable to contracts executed and performed within such jurisdiction even if some of the duties may be performed outside of Papua New Guinea.
Any dispute arising from this agreement shall be referred to and heard in a court located in Papua New Guinea.
[Emphasis added]
The defendant submits that a contractual agreement as to forum is sufficient to justify the dismissal or stay of proceedings that have been commenced contrary to its terms, relying on Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 424 – 425; Huddart Parker Ltd v Ship Mill Hill (1950) 81 CLR 502 at 508.
It accepts, however, that whether a clause in a given case does in fact justify dismissal will depend upon its proper consideration: Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 224 – 229.
The contractual clause is to be given a wide and generous construction, to ensure that all disputes are determined in a coherent manner in a single jurisdiction: Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 238 ALR 457 at [164]-[165]; Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196 (Global Partners) at [60]-[70].
The defendant further submits that the substance of the action is one against a PNG corporation, for breach of duty occurring in PNG and arising out of the performance of a PNG contract.
The defendant draws the Court’s attention to the emphasised words of Clause 8 of the consulting agreement set out above, and submits that those words extend both to the contractual and tortious formulations of the claim. Again, relying on Global Partners at [60]-[67] and the case cited therein, the defendant contends that the words “arising from” a contract can encompass claims in tort and statute.
Accordingly, the defendant contends that the clause is sufficient to render the ACT an inappropriate forum, and the parties ought to be held to their bargain: FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559 at 569, which was recently cited in Gonzalez v Agoda Co Pte Ltd [2017] NSWSC 1133 at [34].
If the contractual clause is not enough to persuade the Court that the claim ought to be set aside, the defendant points (among other things) to the following factors which I consider to be persuasive:
(a)The defendant is incorporated under PNG laws and carries out its operations and business in PNG.
(b)The contract was entered into in PNG and was to be performed in PNG.
(c)The choice of law for both the tortious and contractual formulation is PNG: as to tort, the choice of law is the lex loci deliciti (place where the tort was committed): Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491. As to contract, the choice of law is the proper law of the contract, identified as Clause 8, set out above.
(d)The security arrangements at the HBS Compound were managed by an external security company, Black Swan, whose personnel are all based in PNG.
(e)The majority of the employees and contractors at the HBS Compound who will be required to give evidence are presently located in PNG, creating additional cost, delay and expense in the resolution of proceedings if they were required to come to Canberra.
The plaintiff’s arguments centred around the well-established discretionary considerations in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564 – 565 and a case said to be similar in fact to the facts presently under consideration, namely Bradley v Placements (PNG) Ltd [2014] QSC 016 (Bradley) at [13] per Daubney J, submitting that even if factors indicate that a court in PNG is the natural forum, that is not the relevant test. It is for the defendant to satisfy the Court that pursuit of the proceedings would be oppressive or vexatious to the defendant.
The difficulty for the plaintiff is that there really is no connection that I can identify at all that would make the ACT an appropriate forum. The plaintiff does not reside in the ACT. The defendant is not incorporated in the ACT or even in Australia. The critical conduct did not occur in the ACT. The applicable law is not that of the ACT. On the affidavit evidence, none of the potential witnesses are located in the ACT. Even taking into account the medical treatment received by the plaintiff over the intervening period that was referred to in the Claim and in the evidence before the Court, the highest the evidence rises is one medical certificate issued by a doctor in the ACT, and that person is not even a treating doctor. In those circumstances, pursuing the proceedings in this forum would be oppressive or vexatious to the defendant.
I accept the defendant’s submissions as providing cogent and persuasive reasons why the ACT is an inappropriate forum for the trial of the proceeding and the originating process will be set aside pursuant to r 6504(1) of the Rules.
However, I wish to make it clear that although I have accepted that Clause 8 of the consulting agreement provides a persuasive reason why the ACT is not the appropriate forum, I have not found it necessary to conclusively determine whether, on its proper construction, Clause 8 of the consulting agreement ousts the jurisdiction of any Australian court. As set out above, there were so many other factors that established no real and substantial connection with the ACT that the case did not require the Court to consider the construction of the clause at that level of generality.
I have consciously refrained from undertaking any detailed construction of Clause 8 because the litigation has only recently been commenced and I would not wish the exercise of the discretion in the ACT to fetter any future consideration of that issue. It may be that different discretionary considerations will arise if the plaintiff seeks to commence proceedings in a different jurisdiction in Australia. For example, the plaintiff may reside in a different State or Territory and his medical treatment may also be in that jurisdiction including, in particular, the relevant doctors required for cross-examination. Once witnesses are known, their ability to travel or satisfactory arrangements for giving evidence by audio visual link might be identified. The complexion of the factors weighing into the balance of a discretionary decision by a different court may result in a different outcome in future, notwithstanding the presence of Clause 8.
Conclusion
For the above reasons, the originating process will be set aside. The defendant has been successful in its application and there is no reason why the plaintiff ought not be required to pay its costs.
The orders of the Court are:
(a)Pursuant to r 6504(1) of the Court Procedure Rules 2006 (ACT) the originating process filed by the plaintiff on 29 September 2017 is set aside.
(b)The plaintiff is to pay the defendant’s costs of the application.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 29 June 2018 |
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