Lopez v HBS (PNG) Limited - [2018] ACTSC 190

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 Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 238 ALR 457 Esanda Finance Corporation Ltd v Wordplex Information Systems Ltd (1990) 19 NSWLR 146 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559 Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196 Gonzalez v Agoda Co Pte Ltd [2017] NSWSC 1133 Huddart Parker Ltd v Ship Mill Hill (1950) 81 CLR 502 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACTSC 190
Decision Date: 29 June 2018

CaseChat Overview and Summary

Lopez filed an application in the Federal Circuit and Family Court of Australia to set aside an originating process served in relation to a dispute with HBS (PNG) Limited. The matter at hand involves an alleged breach of contract and associated damages, with Lopez seeking to recover losses from HBS (PNG) Limited. The court had to determine whether leave was required to set aside the originating process under Court Procedure Rules 2006 r 6504(1). Additionally, the court examined whether the Australian Capital Territory was an appropriate forum for this dispute, considering that the incident in question occurred in Papua New Guinea with no significant connecting factors to the Territory.

The court examined the requirements of the rules and the appropriate forum for the dispute. The legal issue centered on whether the Australian Capital Territory had jurisdiction over a matter that occurred in another country, specifically Papua New Guinea, with no substantial ties to the Territory. The court considered the connecting factors between the parties and the location of the alleged breach of contract, as well as the implications of exercising jurisdiction over a foreign company with no significant presence in Australia. The court concluded that the Australian Capital Territory was not an appropriate forum for this dispute due to the lack of connecting factors.

In reaching its decision, the court found that the Australian Capital Territory did not have jurisdiction over the matter, as the connecting factors between the parties and the location of the alleged breach of contract were insufficient to warrant exercising jurisdiction. The court emphasised the importance of appropriate forum selection in cases involving international elements. Consequently, the court set aside the originating process and dismissed the application. The decision underscores the need for careful consideration of jurisdiction and forum selection in cases involving cross-border disputes.

Orders

Orders of the court

See [27]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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