McGregor v Potts

[2005] NSWSC 1098

CITATION:	McGregor v Potts & ors [2005] NSWSC 1098
HEARING DATE(S):	21 September 2005
JUDGMENT DATE :	31 October 2005
JUDGMENT OF:	Brereton J

CATCHWORDS:	PRIVATE INTERNATIONAL LAW - Stay of Proceedings - Forum non conveniens - appeal from Master - whether proof of actual vexation or oppression required - whether vexation or oppression presumed where connecting factors show forum to be "clearly inappropriate" - whether in stay application court should discount potential vexation and oppression as conjecture - relevance of expiry of foreign limitation period - relevance of foreign defendants being insured in natural forum but not in local forum - appeal allowed and stay granted on condition that extension of foreign limitation period not opposed.
LEGISLATION CITED:	Limitation Act 1980 (UK), ss 11, 33 Supreme Court Act 1970, s 75A Supreme Court Rules, Pt 10 rr 1A(1)(e), 2, 6A, Pt 11 r 8, Pt 33 r 8, Pt 60 r 15(3) Uniform Civil Procedure Rules 2005, rr 11.4, 11.7, 12.11, Sch 6 par (e)
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Asian Investments Corporation Limited v Symons (NSWSC, Young J, 10 April 1996) BHP Billiton Limited v Schultz (2004) 211 ALR 523 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cordoba Shipping Co Limited v National State Bank; "The Albaforth" [1984] 2 Lloyd's Rep 91 Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 Hartigan v International Krishna Consciousness [1999] NSWSC 139 (Bryson J) Henry v Henry (1996) 185 CLR 571 House v The King (1936) 55 CLR 499 Hyde v Agar (1998) 45 NSWLR 487 James Hardie Industries Limited v Grigor (1998) 45 NSWLR 20 Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 McGregor v Three Counties Equine Hospital [2004] NSWSC 1203 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 Rosenberg v Percival (2001) 205 CLR 434 State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) (1999) 160 ALR 588 The Atlantic Star [1974] AC 436 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Warren v Coombes (1979) 142 CLR 531 Wickstead v Browne (1992) 30 NSWLR 1
PARTIES:	Jacqueline Thea McGregor (plaintiff) Graham Potts & ors T/A Three Counties Equine Hospital (first defendant) Worcestershire Acute Hospital National Health Service Trust (second defendant) Dr T J Hall (third defendant)
FILE NUMBER(S):	SC 20117/03
COUNSEL:	I Wales SC (plaintiff) S Donaldson SC (first defendant) A Bell (second & third defendants)
SOLICITORS:	Lough Wells Duncan (plaintiff) Ebsworth & Ebsworth (first defendant) Deacons (second & third defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRERETON J

Monday 31 October 2005

20117/03 Jacqueline Thea McGregor v Graham Potts & Ors

JUDGMENT

1 HIS HONOUR: The plaintiff Jacqueline Thea McGregor, who is a resident of the State of Victoria, is a veterinary surgeon. During 2000 she was working in England for the first defendants who were veterinary surgeons carrying on practice in partnership as the “Three Counties Equine Hospital” at Tewkesbury. On 21 May 2000, when manoeuvring a horse with colic into the hospital barn, the horse kicked her in the face. For her injuries she was treated at the Worcester Royal Infirmary, which is operated by the second defendant Worcestershire Acute Hospitals National Health Service Trust, where she underwent surgery by the third defendant Dr T J Hall.

2 In these proceedings, Ms McGregor sues the veterinarians, the NHS Trust, and Dr Hall, for damages for personal injuries. She alleges that those injuries were caused by the veterinarians’ unsafe system of work, and by negligent medical treatment provided by Dr Hall and (through him and perhaps others) the NHS Trust.

3 All the defendants moved, pursuant to former Supreme Court Rules, Pt 10 r 6A and Pt 11 r 8, for an order staying the proceedings on forum non conveniens grounds. Master Malpass (as his Honour then was) found that while the case had a significant jurisdictional nexus with the United Kingdom and only a relatively slender one with the State of New South Wales, the defendants had not sufficiently demonstrated that New South Wales was a “clearly inappropriate” forum [McGregor v Three Counties Equine Hospital [2004] NSWSC 1203].

4 From that decision, the defendants appeal. For the appellant defendants, Mr Donaldson SC and Dr Bell argue that while the Master apparently stated the correct test, the result shows that it was not in fact applied, and that upon application of the correct principles, the court must find that New South Wales is a clearly inappropriate forum. For the reasons which follow, I accept these submissions. In particular, insofar as the Master apparently required proof of actual prejudice to the defendants from the continuation of the proceedings in Australia, and discounted, as “conjecture”, evidence of potential prejudice which the defendants adduced, he imposed a more stringent test than is authorised by Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 and Henry v Henry (1996) 185 CLR 571.

5 In order to understand why this is so, it is necessary first to appreciate the jurisdictional context of the litigation.

Background

6 Ms McGregor, who was born on 17 May 1971, is a veterinary surgeon who, at least now, resides in Victoria.

7 In 2000, Ms McGregor was employed in England by the veterinarians at the Three Counties Equine Hospital. The evidence does not disclose for how long she had been in England, nor how long she had been in the employ of the veterinarians, but it is to be inferred that at some time prior to May 2000 she travelled from Australia to England and obtained employment there.

8 On 21 May 2000, at approximately 3.30pm, Ms McGregor was manoeuvring a horse with colic into the hospital barn of the equine hospital, when the horse kicked her in the face. She claims that as a result she suffered “serious injury including brain damage, multiple facial fractures, injury to her left eye, and shock”.

9 Following the accident, and on the same day, Ms McGregor was admitted to the Worcester Royal Infirmary, which is operated by the NHS Trust. There she underwent an open reduction and internal fixation of facial fractures by Dr Hall. Following that operation she continued to suffer pain in the left side of her face, profound infra-orbital nerve paraesthesia, enophthalmos, and flashes on left lateral eye movements.

10 Ms McGregor returned to Australia. Dr Bowler first saw her on 2 August 2000, as a result of referral by the John Hunter Hospital (Newcastle, New South Wales), after investigations which were performed by Dr O’Dell on 1 August 2000 (at Broadmeadow, near Newcastle, New South Wales). Dr Bowler operated on Ms McGregor, in Lingard Hospital (Newcastle, New South Wales), on 6 August 2000. He realigned the fragments into a better position, and aligned and plated the comminuted zygomatic arch fractures.

11 Following that surgery, Ms McGregor was discharged on 9 August. Dr Bowler saw her for post-operative reviews on 17 August, 7 and 28 September and 9 November 2000. Further investigations were performed by Dr Lees (also at Broadmeadow) on 7 September 2000.

12 Dr Bowler’s report suggests that Ms McGregor was at that time living at Blandford, in New South Wales.

13 Dr Bowler has expressed the opinion that performance of the original surgery through the facial laceration did not allow the operator to access the full extent of the injury, with the result that the zygomatic arch remained untreated, allowing telescoping of the zygomaticomaxillary complex fractures in a posterior direction; that the orbital fractures had also not been treated, allowing an increase in orbital volume; that there was an unsatisfactory reduction at the infra-orbital margin and a palpable step defect which was painful; that the placement of the plates was somewhat haphazard; that the selected plates were too large; and that two hours (being the duration of the operation, according to the records) was “a rather brief operating time to treat a complex maxillofacial injury which took me six hours to treat as a revision”. He concludes that the surgery fell below the standard to be expected of a reasonably competent and skilful specialist consultant maxillofacial surgeon (but, it appears, at least inferentially, not that which would be expected from a registrar). However, Dr Bowler’s report does not comply with the requirements of Supreme Court Rules, Schedule K, which were applicable when it was served.

14 Ms McGregor instituted these proceedings by statement of claim filed on 13 May 2003. She sues the veterinarians as the owners and operators of the Three Counties Equine Hospital, in which they employed her, alleging that her injuries were occasioned by that hospital’s unsafe system of work. She sues Dr Hall as the surgeon who performed the first operation, alleging that he failed properly and fully to investigate, ascertain and treat her injuries, and that his negligence occasioned further injury to her. And she sues the NHS Trust as the body responsible for the Worcester Royal Infirmary and its provision of medical services, alleging that her further injuries resulted from the negligence of its employees, servants or agents.

15 In her Pt 33 r 8A statement, Ms McGregor’s injuries are particularised as “multiple facial fractures, injury to left eye, brain damage, depression, shock and sequelae”; and her disabilities as “constant facial pain, severe headaches, profound infra-orbital nerve paraesthesia, need for facial reconstruction surgery, photopsia in left eye, scarring to left side of face, depression, anxiety, difficulty concentrating, impaired memory, emotional lability, anger and irritability, difficulty with anger control”. She also claims for past and future out-of-pocket expenses, and for past and future loss of earning capacity, “full particulars of which will be provided in due course”.

16 The solicitor acting for Ms McGregor in these proceedings is a partner in a firm which carries on practice in Wollongong, New South Wales.

17 He was of the view, rightly, that Ms McGregor was, as a matter of jurisdiction, entitled to sue in New South Wales. But before commencing the proceedings, he made enquiries as to what was the applicable limitation period in England. His enquiries led him to think that it would be more difficult to obtain an extension of time in England than in Australia, although it would not be absolutely out of the question. In any event, when Ms McGregor commenced proceedings, she was within time to do so, both in New South Wales and in England.

18 The veterinarians are insured for employer’s liability for any incident occurring within Great Britain, Northern Ireland, the Isle of Mann or the Channel Islands, but only if the action is brought in a court of law within one of those countries. As the proceeding has been brought in Australia, the veterinarians are not insured in respect of it.

19 In about mid 2003, the initiating process was served ex juris, in reliance on (then) SCR Pt 10 r 1A(1)(e), which authorised service of originating process outside Australia where the proceedings, wholly or partly, were founded on, or were for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring [see now UCPR, Sch 6, par (e)]. None of the defendants has entered an appearance, and Ms McGregor has not yet sought leave to proceed under SCR Pt 10 r 2 [see now UCPR, r 11.4].

20 The defendants do not contest jurisdiction: for present purposes, they concede that this is a case to which SCR Pt 10 r 1A(1)(e) applied, by reason of, at least, the plaintiff undergoing remedial surgery in Newcastle, New South Wales. But pursuant to SCR Pt 10 r 6A [see now UCPR r 11.7], and Pt 11 r 8 [see now UCPR r 12.11], the defendants, without entering an appearance moved, albeit belatedly, for an order staying the proceedings, on the ground that this court is an inappropriate forum for the trial of the proceedings.

21 The hearing before the Master took place on 15 December 2004.

22 One of the principal matters raised on behalf of Ms McGregor before the Master was that, should the proceedings be stayed, proceedings in England would now be barred by the Limitation Act 1980 (UK), which imposes a limitation period of three years from the date on which the cause of action accrued (or, if later, the date of knowledge of the person injured) [s 11], but permits an extension of time by “disapplying” the section where it would be equitable to allow an action to proceed having regard to the balance of prejudice [s 33].

23 As I have said, when Ms McGregor commenced proceedings in New South Wales, she was within time to do so, both here and in England. Before the Master, the NHS Trust and Dr Hall indicated that they would consent to an extension of time, were Ms McGregor now to bring proceedings in England, consequent upon a stay being granted in New South Wales.

24 The veterinarians, however, did not consent, at least until a very late stage. Prior to the hearing before the Master, they had been told by their insurer that, were they to consent to a waiver of the limitation period in the United Kingdom, and were Ms McGregor then to issue proceedings in the United Kingdom, the insurer would treat that as a breach of their obligations under the policy, and would decline indemnity. This was confirmed to the solicitors acting for the veterinarians in the Australian proceedings on 13 December 2004.

25 Upon completion of the evidence and submissions on 15 December, the Master announced that judgment would be delivered on 17 December. Ms Chambers, the solicitor who has the conduct of the matter for the veterinarians in Australia as agent for English principals, reported to her principals and again requested confirmation that the insurer’s position was unchanged. Only on the morning of 17 December did Ms Chambers receive instructions that the insurer would now consent to a waiver of the limitation period in the United Kingdom.

26 On the morning of 17 December, counsel for Ms McGregor, upon arriving in chambers, received a message asking him urgently to call counsel for the defendants, which he did. Counsel for the defendants said: “I now have instructions that Potts, Rea and Harrison [the veterinarians] will consent to an extension of time for your client to bring proceedings in the UK. Do you consent to me informing the Master of this”. Counsel for Ms McGregor replied: “I don’t consent”. Counsel for the defendants said: “Well I intend to do so”. Counsel for Ms McGregor said: “Well, you’ll have to take your own course, but I repeat that I don’t consent”.

27 Ms Chambers then caused a letter to be forwarded to the Master by email, relevantly as follows:-

We have received instructions, somewhat late, and overnight, that the first defendant is prepared to give an undertaking that were the plaintiff to commence proceedings in the United Kingdom they will consent to a waiver of the limitation period that applies.
We apologise for the lateness of these instructions. The tyrannies of having to obtain instructions in a different time zone have been the cause of this delay.
We confirm a copy of this letter has been sent to those acting for the plaintiff and the second and third defendants.

28 The matter was listed for judgment at 10.00 am on 17 December 2004. The Master announced: “I received a letter this morning indicating that the first defendant now consents to an extension of time in the UK. That was an irregular course. It is not the appropriate way of putting evidence before me”. Counsel for Ms McGregor said: “What you say does not come as a surprise to me”, and he then reiterated the conversation which he had had with counsel for the defendants, as set out above. The Master said: “Very well, I propose to give judgment”. No application of any kind was made to the Master, who proceeded to deliver judgment and publish the written reasons which had been prepared.

The Master’s Judgment

29 The Master (at [25]-[26]) held that the power conferred by the rules to decline to exercise jurisdiction called for application of the test expressed by the High Court in Voth, and thus that the applicant for a stay bore the onus of showing that New South Wales was a clearly inappropriate forum, in that it would be productive of injustice, because it would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of being productive of serious and unjustified trouble and harassment, for which he cited Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491.

30 The Master reasoned as follows:-

· There was no dispute that the applicable law was that of the United Kingdom, and the substantive law is a very significant factor in the exercise of a discretion to grant a stay: [14];

· While material raised by the defendants as to oppression and/or vexation was largely uncontradicted and unchallenged, much of it was conjecture. The proceedings being at an early stage, the parties were not really in a position to speak reliably as to the length of any trial (which the defendants estimated at two weeks at least) and the witnesses that would have to be called (the defendants asserting that there would be a need for many United Kingdom lay and expert witnesses), and it was a matter of conjecture as to whether or not the veterinarians would wish to call a former employee who was an eye witness: [30]-[34];

· The plaintiff’s claim “may be a relatively modest one”: [35];

· There was a significant jurisdictional nexus with the United Kingdom, where all the defendants - all of whom may be regarded as employed in the conduct of a profession - resided and conducted their affairs, where the incident and subsequent medical treatment took place, and where it could be expected “that there may be relevant witnesses who reside there”: [36];

· The evidence that would be required may well depend on matters of case management, the utilisation of interlocutory processes, reliance on witness statements and video link: [37];

· The circumstance that the veterinarians would be uninsured in Australia was “a state of affairs that arises because the first defendants have chosen to take out such limited cover”: [38];

· Although it had been argued that there was a possibility of cross-claims, that seemed unlikely since “what is alleged by the plaintiff involves separate torts”: [39];

· A view was unlikely to be necessary: [40];

· While there was a significant nexus with the United Kingdom and a relatively slender nexus with New South Wales, the question was not what was the more appropriate forum, but whether the defendants had shown that New South Wales was “clearly inappropriate”: [41];

· If a stay were granted, the plaintiff would be barred from prosecuting her case in the United Kingdom, and although the NHS Trust and the doctor were prepared to consent to an extension, the veterinarians did not offer such consent and it could be expected that their insurer would oppose any application for an extension: [42]-[43];

· While it had been submitted that a temporary stay should be granted pending the making of an extension application in the United Kingdom, this was inappropriate as “it would see the plaintiff being put to expense and delay” and “at least … as against the first defendants may not be successful”: [44]-[45].

31 For those reasons, the Master was not satisfied that the defendants had discharged the onus which they bore, adding his impression “that this relatively modest case is one in which the interests of all parties may be best served by immediate attention to the prospects of settlement”: [47]

The Appeal

32 An appeal from a Master to a Judge is an appeal by way of rehearing under Supreme Court Act, s 75A, to which the same principles apply as those which govern an appeal from a judge to the Court of Appeal. An appellant must show error in the judgment of the Master [Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409; Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430].

33 Thus, where findings of fact turn on the credibility of witnesses or the position of advantage enjoyed by a judge who has heard the evidence, all due allowance must be made for the advantages available to the primary judge [Fox v Percy (2003) 214 CLR 118], and the appellate court will not interfere unless satisfied that the trial judge “palpably misused that advantage”, or that such advantage “could not be sufficient to explain the trial judge’s conclusion” [Abalos v Australian Postal Commission (1990) 171 CLR 167, 178-9; Rosenberg v Percival (2001) 205 CLR 434, 447-8], or that the findings are inconsistent with, or glaringly improbable having regard to, incontrovertible evidence [State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) (1999) 160 ALR 588]; but where the findings are conclusions or inferences which do not depend on credibility or demeanour, the appellate court is in as good a position as the primary judge to decide the question and is bound to discharge its duty and give effect to its own judgment [Warren v Coombes (1971) 142 CLR 531, 551-2].

34 Where the appeal challenges the exercise of a discretion, an appellate court will be entitled to interfere with the primary judge’s decision only if the primary judge has acted on an incorrect principle, or has mistaken the facts or law, or has failed to take into account a relevant consideration or had taken into account an irrelevant one, or has reached a result that is plainly unreasonable or unjust [House v The King (1936) 55 CLR 499, 504-505; Gronow v Gronow (1979) 144 CLR 513].

35 Although some short oral evidence was given, nothing in the Master’s judgment depends on demeanour or the credibility of witnesses. Insofar as factual conclusions are in issue, I am in as good a position as the Master to draw relevant inferences. However, the Master’s ultimate conclusion involved the exercise of a discretionary power, and that can be upset on appeal only in the limited circumstances in which it will be found that a judicial discretion has miscarried – of which error of principle is one.

Application to Adduce Further Evidence

36 Before me, the appellant sought to rely upon an affidavit of Ms Chambers sworn 8 March 2005 which (self-evidently) had not been before the Master. By that affidavit, it was sought to adduce evidence of:-

· the fact (which was already established before the Master, but in less precise form) that the veterinarians would be uninsured if the proceedings continue in New South Wales;

· the circumstances leading to the eleventh hour communication to the Master’s chambers of the consent of the veterinarians to the extension of the limitation period in the United Kingdom;

· the basis on which damages would be assessed under UK law and the potential size of the claim; and

· the potential for cross-claims.

37 At the hearing, I indicated that I would reject parts of Ms Chambers’ affidavit on formal grounds, and reserved the admissibility of the remainder to be dealt with in this judgment.

38 On a s 75A appeal, the court may receive further evidence [Supreme Court Act, s 75A(7)], except where the appeal is from a judgment after a hearing on the merits, in which case further evidence may be received only on special grounds, except in respect of matters occurring after the trial or hearing: s 75A(8), (9). In an interlocutory appeal such as the present, there is no requirement to establish special grounds under s 75A(8) for the reception of further evidence, whether or not it has occurred after the hearing; this is because the interlocutory hearing is not a “hearing on the merits” [Wickstead v Browne (1992) 30 NSWLR 1, 11; Hartigan v International Krishna Consciousness [1999] NSWSC 139 (Bryson J); Asian Investments Corporation Limited v Symons (NSWSC, Young J, 10 April 1996); cf Martin v Abbott Australasia, 435-436 (which can no longer be regarded as correctly stating the law on this question)]. And while it remains necessary for an appellant who wishes to rely on further evidence to obtain a favourable exercise of discretion under s 75A(7), a more liberal approach is taken in interlocutory appeals [Martin v Abbott Australasia; Hartigan v International Krishna Consciousness, [8]-[9]].

39 As to that part of Ms Chambers’ affidavit which addresses the first point above – the terms of the insurance policy – so much as remains after rejection of the formally defective part does no more than put in better form an assertion of fact that was already before the Master and which the Master appears to have accepted. It occasions no prejudice, and accordingly I will admit the second sentence of paragraph 2, the first sentence of paragraph 3, and paragraph 7 (including annexures A, B, C and D).

40 As to so much of the affidavit as deals with the circumstances relating to the veterinarians’ consent to waiver of the limitation period, the matters in question occurred, in substance, after the hearing before the Master, though before judgment. They effected a change, in a relevant way, of the factual matrix upon which the Master gave judgment. The absence of the consent of the veterinarians to an extension of the limitation period in England may well have been material, if not decisive, to the ultimate outcome before the Master. Ample notice has been given of the intention to adduce the evidence (much more than the seven days required by (former) SCR Pt 60 r 15(3), which was applicable at the time the affidavit was filed). I allow paragraphs 9, 11, 12, and 15-21 inclusive (including annexures F and G).

41 As to the matters addressed in the third and fourth points, these add little, but might marginally affect the decision if, being satisfied that the Master erred, I come to re-exercise the discretion. I admit paragraphs 22-26 (including annexure H).

The principles of forum non conveniens

42 As the Master rightly held, SCR Pt 10 r 6A and Pt 11 r 8 require application of the principles of forum non conveniens as established in Australian law, and not some other, less rigorous, test [Hyde v Agar (1998) 45 NSWLR 487, 510]. These principles, as authoritatively stated by the High Court of Australia in Voth, were summarised in Henry [at 586-587], as follows:-

In Voth , this court adopted for Australia the test propounded by Deane J in Oceanic Sun , namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court 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”. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant `connecting factors’ and `a legitimate personal or juridical advantage’ provides valuable assistance”.

43 In his judgment, the learned Master correctly stated these principles. But in my respectful opinion, in acceding to the submissions made on behalf of Ms McGregor to the effect that the vexation and oppression claimed by the defendants was largely conjecture, and thus discounting it, he was led into error in the application of those principles. The Voth principles do not require proof of actual vexation or oppression; what they require is proof of a sufficient imbalance of the “connecting factors” that it can be said that the local forum is a “clearly inappropriate”, as distinct from “less appropriate”, one. Once that is established, the law presumes vexation and oppression will be occasioned to the foreign party by requiring it to litigate in a clearly inappropriate forum, without requiring proof of actual vexation or oppression.

44 In Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, Deane J [at 247] agreed with the caution uttered by Lord Wilberforce in The Atlantic Star [1974] AC 436 (at 477) against construing “oppressive” and “vexatious” too rigidly in the context of dismissing or staying an action on inappropriate forum grounds, saying that “oppressive” should be understood as meaning seriously and unfairly burdensome, prejudicial or damaging, while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment. His Honour explained that those words should be read as describing and characterising the objective effect, on balance, of the continuation of a particular forum as the venue of the proceedings, rather than as describing the conduct of the plaintiff in selecting or persisting with that forum. Subject to a presently immaterial qualification, Gaudron J [at 266] agreed with Deane J.

45 It was that test stated by Deane J, including that reading of “oppressive” and “vexatious”, which was adopted in Voth [at 564]. It calls for a conclusion, on balance, as to the overall effect which continuation of proceedings in the local forum may have on the foreign defendant, judged objectively. The emphasis on the objective effect directs attention to the obvious and natural consequences for a foreign defendant of the continuation of proceedings in the local forum, rather than to specific subjective prejudice which the particular defendant might raise; as such it does not require proof of actual, subjective, prejudice.

46 The effect of the High Court’s endorsement, in Voth, of the value of Lord Goff’s analysis of connecting factors, is that, in deciding whether the continuation of proceedings in the local forum is vexatious or oppressive, if an analysis of the connecting factors shows that the question of connexion is not finely balanced but very clearly one way, then it can be presumed that compelling the foreign party to litigate in the local forum will occasion vexation and oppression in the relevant sense – much as it can be presumed that there is prejudice from delay [as to which see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551, 555 (McHugh J)]. If proof of actual vexation or oppression were essential, examination of the various connecting factors would be a sterile exercise.

47 Consistently with this approach, the High Court pointed out that the “clearly inappropriate forum” test was similar to, and for that reason likely to yield the same result as, the “more appropriate forum” test in the majority of cases, the difference between the two being of critical significance only in those probably rare cases in which it is held that an available foreign tribunal is the natural or more appropriate forum, but in which it cannot be said that the local tribunal is a “clearly inappropriate” one. Allowing that the question that the “clearly inappropriate forum” test presents is slightly different – in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum, rather than on the need to make a comparative judgment between the two forums – their Honours said that considerations relating to the suitability of the alternative forum were still relevant to examination of the appropriateness or inappropriateness of the selected forum: “The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may readily conclude that it is not a clearly inappropriate forum” [Voth, 558]. This indicates that the fundamental issue is the degree of connexion which the proceedings have with the local forum: while a conclusion that they have a greater connexion with a foreign forum will not justify a conclusion that their continuation in the local forum is vexatious or oppressive, one that they have so clearly a stronger connexion with a foreign forum that the local court can be said to be “clearly inappropriate” will do so.

48 In some situations, the continuation of an action in a selected (local) forum, though not amounting to vexation or oppression or an abuse of process in the strict sense, will amount to an injustice to the defendant when the bringing of the action in some other available and competent forum would not occasion an injustice to the plaintiff [Voth, 556]. The local forum would be a “clearly inappropriate” one where “the subject matter of the action and the parties had little connection with that forum and the defendant may be put to great expense and inconvenience in contesting the action in that forum” [Voth, 557]. There is no hint in their Honours’ reasoning that, in addition, proof of actual vexation or oppression was required: in effect, continuation of proceedings is presumed to be vexatious or oppressive where the forum is shown to be “clearly inappropriate”.

49 In Voth, the submission (and conclusion) that New South Wales was a clearly inappropriate forum was largely based on the proposition that the cause of action sued on was a foreign tort, so that the respondents had to show, in order to succeed in New South Wales, that there would be a civil liability in Missouri. The High Court examined the strength and significance of the various “connecting factors” [at 570-571]. The factors which favoured a stay included that the action had a substantial connection with the law of Missouri; that the relevant acts and omissions took place predominantly in Missouri; that the appellant resided and worked in Missouri and the professional standards of accountants in Missouri would be relevant; that, in large part, the damage which the appellant was alleged to have caused was referrable to United States taxation law; and that the greater part of the evidence in any trial of the action would be found in Missouri. The competing considerations included that the plaintiffs were residents of New South Wales and may therefore reasonably point to the advantages to them in practical terms of bringing an action in the local courts; that the transactions concerned had some connection with New South Wales and Australian revenue laws; and, to a large extent at least, the damage was suffered in New South Wales. But as to these, the court said:-

However, these last considerations are natural consequences and incidents of residence in a particular jurisdiction and, as such, are merely different aspects of the right of any plaintiff to bring an action in the courts of the jurisdiction wherein he or she resides. That is a legitimate personal or juridical advantage which is acknowledged by the prima facie right of a plaintiff to insist upon the exercise of a jurisdiction which he or she has regularly invoked, but beyond that it has little weight.

50 Having identified the legitimate juridical advantages which the plaintiff enjoyed in New South Wales, their Honours concluded that they were insufficient to resist the conclusion to which the other considerations irresistibly pointed, namely that New South Wales was a clearly inappropriate forum [Voth, 571]. The court did not identify actual prejudice (in terms of additional costs, disruption, unavailability of specific witnesses, or an inferior juridical position) to the applicants for a stay if the matter were to remain in New South Wales; sufficient vexation was apparently presumed where analysis of the relevant “connecting factors” showed that one forum was manifestly inappropriate.

51 In this context, it is inevitable that actual prejudice to a foreign defendant will often be conjectural. At the early stage of proceedings at which such questions must be determined, it will often not be possible to say with accuracy how long the trial might take, nor precisely what witnesses will be called, nor what issues might go to trial and which might fall away, nor whether the case will even go to trial. All this is beside the point: if the local forum would be a “clearly inappropriate” one for a trial of all issues, it does not cease to be so just because there is a prospect that some of those issues may fall away, or even that the whole case might be settled. The “clearly inappropriate” forum test contemplates a trial on all issues extant at the time that the forum question is determined, and does not speculate that the case may narrow as it progresses. In an application of this type, the court proceeds on the assumption that the case will run to trial on all issues, and evaluates the relative convenience of each forum on that assumption. It is, therefore, erroneous to discount as “conjecture” the difficulties which, on that assumption, may be occasioned to the foreign party, just because the extent of the vexation might be reduced if issues fall away or the case settles. In short, the possibility that some or even all of the issues may be resolved does not affect the appropriateness of the forum. Accordingly, in my opinion, in discounting matters of potential vexation and oppression as “conjecture” because it was too early to say whether they would in fact arise, the Master fell into error.

The relevant connecting factors

52 Against this background, it is now appropriate to review the relevant “connecting factors”, in order to evaluate whether their balance is such that it can be said that New South Wales is a clearly inappropriate forum.

53 The locus of the relevant incidents was in England. It is there that the alleged negligent acts occurred. Ms McGregor’s injuries, and a substantial amount of her damages, were suffered in England.

54 It is common ground that the applicable law in determining at least questions of liability is the law of England. It is likely, though not concluded [see Regie v Zhang, 520], that, if the matter were litigated in New South Wales, questions of limitation and quantum of damages would also be governed by English law. The circumstance that the governing law is that of England is a very significant factor, partly because the court of the forum whose law is to be applied is prima facie the best qualified to apply it, and partly because if foreign law is to be applied in a local forum there is immediate prejudice and additional cost in having to prove that foreign law [Voth, 566; BHP Billiton Limited v Schultz (2004) 211 ALR 523, [259]; Cordoba Shipping Co Limited v National State Bank; “The Albaforth” [1984] 2 Lloyd’s Rep 91, 96 (Goff LJ); James Hardie Industries Limited v Grigor (1998) 45 NSWLR 20, 37].

55 At the heart of the case will be what are safe employment practices and appropriate professional standards in England. The circumstance that professional standards of Missouri were “in play” was regarded as of significance in Voth [at 570.8].

56 Virtually all the evidence is to be found in England. This has at least the following four aspects.

57 First, all of the defendants are located in England, where in one way or another they carry on a professional practice.

58 Secondly, the only known eye witness to the incident with the horse – Ms Tonkin - is located in England. The Master treated the potential difficulties in securing the attendance to give evidence in New South Wales of Ms Tonkin as a matter of conjecture, in the sense that it was not clear whether Ms Tonkin would give evidence helpful to the defendants or not, and thus unclear whether she would be called by them at all. Since an application such as the present has to be made early in proceedings and before an appearance is filed, which witnesses will ultimately be called will often be, at least to some extent, a matter of conjecture. While it is not entirely correct, as was suggested for the defendants, that Ms Tonkin could not be compelled to give evidence were the proceedings to continue in Australia - her evidence could be taken on commission in England, and compulsory process issued from the English courts to secure her attendance for examination there – that is plainly less desirable than her availability to give oral evidence. The difficulty occasioned by it being impossible to compel Ms Tonkin to come to Australia to give evidence is not relevantly diminished by the circumstance that ultimately it may turn out that her evidence is not helpful to the defendants: looked at objectively from the perspective of the court doing justice, justice will best be served if Ms Tonkin is available to give evidence, viva voce, regardless of whose case she will help. The relevance of her evidence, whichever case it might advance, weighs firmly in favour of England and against New South Wales as an appropriate forum.

59 Thirdly, other likely witnesses, including potential expert witnesses (both as to veterinary practices and as to medical practices) are located in England. Here, the practices of veterinary hospitals in England will be relevant, as to which English experts will be most appropriate. So will be the practices of surgeons and hospitals in the National Health Service in England will be relevant. Indeed, in cross-examination before the Master, Ms McGregor’s solicitor accepted that “it will be necessary for the plaintiff to adduce evidence of what was reasonable conduct by a surgeon practicing in Worcester in May 2000”. This will necessarily require the evidence of experts in those fields, who, most appropriately, will come from England. The strength of this factor is accentuated in this case by the circumstance that, as the evidence before the Master established, particular practices, financial limitations, resource constraints and standards apply in the context of the National Health Service in the United Kingdom, with the consequence that the most appropriate expert is likely to be a person with familiarity with NHS practice.

60 Fourthly, a view, if one were considered desirable (as evidence adduced by the defendants suggests), would be possible in England, but not in New South Wales. The Master rightly said that views were relatively rare in personal injury cases, and that it was usually sufficient for the court to have photographs. However, while the Master said that the evidence did not make out a need for a view, for the defendants Ms Chambers deposed that a critical aspect of the veterinarians’ defence would involve examination of the method adopted by Ms McGregor to move the horse into the stocks and how the incident occurred, and that they would likely provide a practical demonstration. There was, therefore, evidence, which was uncontradicted and unchallenged, that at least the veterinarians, as presently advised, were likely to seek a view. While the Master was entitled to conclude that the difficulties which would be posed by conducting the proceedings in New South Wales as to a view were in the scheme of things a relatively minor consideration, that does not deny that should the court be persuaded that a view would be beneficial, it would be possible in England, but not in New South Wales. Preserving, rather than precluding, this possibility would serve the interests of the just determination of the case.

61 Against all these connecting factors which point to England as the natural forum, are the circumstances that a portion (but apparently a small one) of Ms McGregor’s damages was suffered in New South Wales (to the extent at least that she had her remedial operation in Newcastle); one potential medical witness (Dr Bowler) is located in New South Wales; and her solicitors are located in New South Wales, while Ms McGregor herself resides in Victoria.

62 In sum, Ms McGregor travelled to England, and obtained employment in England, with English employers. She was injured in England in the course of that employment. She was treated in an English hospital by an English doctor for those injuries and, she alleges, further injured in the course of that treatment. The only eye witness, each of the defendants, and most of the relevant potential experts (indeed, everyone but Ms McGregor and Dr Bowler) are likely to be from England.

63 It is of great significance that all the events giving rise to the claim were at the time subject to and regulated by the law of England where they occurred. As Callinan J said in BHP v Schultz [at [259]], the court of the place where the events took place should be the most experienced and efficient in evaluating those facts: it may be assumed that the parties have organised their affairs with an eye to the laws of England, and “the parties’ reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the courts of that State”.

64 In this case, the significance of the considerations adverted to by Callinan J is emphasised by the circumstance that the veterinarians’ insurance did not respond in the case of proceedings brought against them outside Great Britain, Northern Ireland, the Isle of Mann or the Channel Islands, whereas it did respond in the case of proceedings brought in England. The Master discounted this with the observation that that state of affairs arose because the veterinarians had “chosen” to take out such limited cover. But there is no evidence that the cover was other than standard, nor that any more extensive cover was available.

65 Mr Wales SC, for Ms McGregor, submitted that the first defendants’ insurance position was not a relevant factor at all, that their choice of insurance policy could hardly be significant and that the circumstance that the first defendants wish to cast their burden on someone else – their insurer – was unmeritorious. I am unable to agree. To my mind, the observations of Callinan J in BHP v Schultz [at [259]], which in their application to the present facts are to the effect that insurance policies will have been implemented on the basis of the law of England, with the parties organising their affairs with an eye to the laws of England governing them, and entertaining the reasonable expectation that in the event of a dispute it would be resolved according to those laws as interpreted and applied by the courts of England, are apposite. 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 connexion 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. The circumstance that the veterinary surgeons would be exposed to uninsured liability because Ms McGregor has chosen to sue in a forum with only a very slender connexion with the case, when they would be insured if they were sued in the forum to whose laws all parties were subject at the time of the incidents, is the very type of vexation and inconvenience which the Voth principles contemplate.

66 A corollary is that any cross claim by the NHS and Dr Hall against the veterinarians would, by virtue of Ms McGregor’s choice of forum, be against an uninsured co-defendant. The Master thought that the bringing of cross claims was unlikely, as “what is alleged by the plaintiff involved separate torts”. However, what Ms McGregor alleges is that the negligence of the veterinarians required her to obtain medical treatment from the NHS and the doctor. Damages occasioned by negligent medical treatment, where that treatment is itself necessitated by a prior act of negligence - for example, by an employer - are sufficiently causally connected to the original negligence (of the employer) to be recoverable from the original tortfeasor, unless attributable to such gross negligence as “breaks the chain of causation” or amounts to a “novus actus interveniens”. Accordingly, the hospital and Dr Hall are likely to be entitled to contribution against the veterinarians, in the event that there are judgments against all of them. It matters not that there are separate torts, so long as at least part of the damage is common. I would conclude that cross claims for contribution, far from being unlikely, are practically inevitable, and that the Master fell into error in holding otherwise. If they must be pursued in New South Wales, the cross-claims for contribution will be against uninsured cross-defendants.

67 The Master was right to conclude that the case has a significant nexus with England, and a slender one with New South Wales. Indeed, there is a strong physical and legal connection with England, and practically none with New South Wales. The “natural” forum is plainly England, and this is not a case in which the ascertainment of the “natural” forum is, to borrow the words of the High Court [Voth, 558], “a complex and finely balanced question”; to the contrary, it is manifest. On what the High Court there said, that circumstance takes it outside the class of “those probably rare cases” in which the “clearly inappropriate forum” test will yield a different result to the “more appropriate forum” test, namely those in which, while an available foreign forum is the natural or more appropriate forum, it cannot be said that the local tribunal is a “clearly inappropriate” one. The factors to which I have referred point irresistibly, and even more strongly than similar considerations did in Voth, to the conclusion that New South Wales is a clearly inappropriate forum [cf Voth, 571].

68 Moreover, in this case, there was evidence that considerable subjective prejudice - personal, institutional and professional - would be imposed on the defendants if the proceedings were to continue in New South Wales.

69 Dr Hall’s evidence was that he had a busy NHS practice, carrying out six clinics in his specialty each working week (including specialist oncology clinics) and seeing in excess of 100 patients in those outpatient clinics each week, and also performing two operative sessions each week, on average on ten patients under general anaesthetic and eight under local anaesthetic, and also two major cancer cases each week. He is the only oral and maxillofacial surgeon in Herefordshire and Worcestershire who specialises in the reconstructive treatment of cancer patients, and if he were not available those procedures would have to be deferred. If he had to travel to Australia for two weeks, then in excess of 200 patients would have their outpatient appointments cancelled and deferred, and while true emergencies would be transferred to other hospitals, all elective surgery would have to be postponed. His private clinical practice, in which he sees about twelve patients a week and runs two private operating lists with up to six patients under general anaesthetic, would also be disrupted. He is married with four young children aged 12, 11, 10 and 8 from whom he would be separated for a fortnight. His income would be affected by his absence from his private practice.

70 Two of the veterinary surgeons, Mr Rea and Mr Potts, are responsible for surgical procedures, specialising in equine surgery and performing approximately 300 general anaesthesia procedures each year. The veterinary hospital would not be able to secure locums of suitable experience if they were absent for a fortnight, and it would be necessary for the practice to close while they were abroad. The practice would be unable to accept any referrals with them unavailable. Their practice is one of the leading equine hospitals in the United Kingdom and is a referral practice for ten other practices in the area. Were they abroad for a fortnight the referring practices would be without an appropriate referral service for that period. It would have difficulty in providing a 24-hour service in compliance with its obligations to the Royal College of Veterinary Surgeons if they were absent.

71 Mr Wales submitted that Ms McGregor should not be taken to have admitted the uncontradicted and unchallenged claims of prejudice made by the defendants matters, asserted as they were on hearsay in the evidence of Ms Chambers and Mr McGrath, just by reason of the deponents not having been required for cross examination before the Master: a person is not to be taken to admit matters not the subject of cross examination when they are inherently improbable, or hearsay, or given by a foreign witness not available for cross examination. However, on an interlocutory application, the hearsay evidence was admissible and was not the subject of objection. Although Mr Wales fairly pointed out that some of the potential witnesses identified by the defendants might ultimately not be required, and that in his statement Dr Hall had not refuted Dr Bowler’s criticism of his technique, the matters of prejudice asserted were not inherently improbable. Although the Master thought that at this early stage of the proceedings, with the issues yet to be defined, the parties were not really in a position to speak reliably as to matters such as the length of any trial and the witnesses that would have to be called, so that these matters of potential vexation and oppression were largely “conjecture”, that will inevitably be the case in most applications of this type, made as they must be at an early stage of the proceedings. This was not the occasion for Dr Hall to proffer his defence to the allegations of negligence against him. And in particular, given that the case will involve an employers’ liability claim against the veterinarians, a professional liability claim against Dr Hall and NHS Trust, questions of vicarious liability as against the NHS Trust, and (as I have concluded) almost inevitably arguments over apportionment, two weeks is a very optimistic estimate of the length of the trial, should it proceed.

72 And although the Master thought that Ms McGregor’s claim may prove to be a relatively modest one, the scale of the litigation does not loom large in this exercise: while it will be the case that, the larger the litigation, the greater will be the prejudice to whichever party has to litigate in a foreign jurisdiction, the focus is on the degree of connexion with the local forum, rather than on the quantum of prejudice. Moreover, Ms McGregor’s claim included “brain damage”, and there was as much conjecture in the speculation that it might prove relatively modest as in the converse view.

73 In my opinion, the balance of the “connecting factors” in this case was such that, without more, New South Wales was a “clearly inappropriate” forum, so that it was to be inferred that it would be seriously and unfairly burdensome and prejudicial to require the defendants to litigate in New South Wales. Superimposed on the presumed vexation and oppression which arises from being compelled to litigate in a clearly inappropriate forum, there was as strong a case as could reasonably be made at an early stage of proceedings of actual prejudice. It is no answer to this to say that, as the issues are defined, some may fall away: the same applies equally if the case proceeds in England as if it proceeds in New South Wales. The early stage of the proceedings at which an application such as this is necessarily made did not warrant discounting the potential prejudice as conjecture.

74 This conclusion does not involve merely a difference from the Master in the weight to be attributed to various of the considerations: it results from a difference in principle as to whether a manifest imbalance of connecting factors such as to show that the local forum is clearly an inappropriate one is sufficient, so that it may be presumed that it will occasion vexation and/or oppression to the foreign party to require it to litigate in the local forum without proof of actual prejudice (which is the approach which, in my respectful opinion, Voth, properly understood, requires); or whether there must be proof of actual vexation or oppression, which may be discounted on account of its being conjecture at an early stage of proceedings (which is the approach which the Master adopted).

Legitimate personal or juridical advantage

75 It remains to consider whether these considerations are outweighed by any legitimate personal or juridical advantage which Ms McGregor may have in New South Wales.

76 Other than the potential limitation problem in England, Ms McGregor adduced no evidence of any significant prejudice to her, should the matter proceed in England rather than in New South Wales. She practices as a veterinary surgeon in Victoria. There is nothing to suggest that she is unable or unwilling to travel. Nor is there any evidence of any dislocation or disruption which would be occasioned to her or others if she were required to travel to England for a trial.

77 Mr Wales submitted that the detriment to Ms McGregor from having to litigate in England was that of increased cost. No doubt it will be more costly for Ms McGregor to litigate in England than in Australia, but conversely it will be more costly for the defendants to litigate in New South Wales than in England. This will be so in virtually every such case, and it cannot be a matter of much significance: the question is which of the parties should have the burden of bearing the additional cost of litigating overseas, and the effect of the Voth principles is that a party should not be required to bear the increased cost burden of litigating in a clearly inappropriate forum, such costs being a type of oppression or vexation contemplated by the Voth test.

78 Accordingly, the only suggestion of prejudice to Ms McGregor is the circumstance that her claim in England would be barred by the Limitation Act (UK), and she would require an extension of time to proceed with it.

79 As to this, even if no extension were available in England, it is doubtful that this would be decisive. Although the unavailability of relief in another forum may often be a significant consideration, the circumstance that relief is not available in the clearly appropriate forum does not prevent the local court from staying proceedings in the local forum. As Callinan J said in BHP v Schultz, [at [258]]:

The party beginning proceedings will always be the party who selects the jurisdiction in which they are to be heard. It is to beg the question to say that because a plaintiff has chosen his or her forum, a defendant cannot ask, or should suffer a disadvantage in asking, that it be changed to a more appropriate one. Furthermore, as I pointed out in Agar v Hyde, one person’s legitimate advantage is another person’s disadvantage. There should be no presumption in litigation in favour of any party. Courts are required to do equal justice. It is wrong to say that proceedings should be conducted in the, or indeed any tribunal because a plaintiff, or for that matter a defendant, is likely to have a better chance of winning or more easily winning there.

80 But in this case, as the position now stands, there is in this respect no longer any legitimate juridical advantage to Ms McGregor in litigating in New South Wales. Although, when the Master reserved judgment, it was the position that the veterinarians had indicated that they would not consent to an extension of time in the United Kingdom, by the time he came to deliver judgment, that position had changed. The indication of such a position on behalf of a party is not a matter for evidence in the ordinary sense: it is not proved by testimony or documents, but established by a statement or undertaking proffered on behalf of a party. While it was irregular to send the letter direct to the Master over the opposition of counsel for the Ms McGregor, and although the preferable course of formally seeking to “re-open” to inform the court of the changed position was not taken, by the time the Master came to deliver judgment the receipt of the information contained in that letter had been acknowledged in court in the presence of representatives of both parties. Thus, although the Master’s statement that the first defendants did not offer consent to an extension of time, and that it could be expected that their insurer may oppose any application for an extension, correctly reflected the position at the end of the hearing when the Master reserved judgment, it did not correctly reflect the position when judgment was actually given.

81 Before me, the veterinarians repeated their offer of consent, in the following terms: “Provided that within three month of any decision in these proceedings staying or dismissing the New South Wales proceedings, an action is brought in England in respect of the claims made in the New South Wales proceedings, the first defendants will consent to and raise no objection to an extension of time for that purpose”. Accordingly, on the material now before me, though not on the material when the Master reserved judgment, the Master’s finding about the attitude of the first defendants to an extension of time in England was erroneous. This may well have been decisive; at the least I cannot say that it did not affect the Master’s decision.

82 Before the Master, the defendants submitted that the court could grant a temporary stay, pending the resolution of an extension application in the United Kingdom. This was the course adopted in Voth [at 571-572]. Such a course would have the result that a stay of the New South Wales proceedings would deprive Ms McGregor of no significant legitimate juridical advantage.

83 As Callinan J said in the passage cited above, one party’s advantage is another’s disadvantage. Of at least equal significance to any limitation problem that Ms McGregor might have faced in England is the detriment in terms of their insurance position that the veterinarians face if the proceedings continue in New South Wales.

Conclusion and Orders

84 The Voth principles do not require proof of actual vexation or oppression; what they require is proof of a sufficient imbalance of the “connecting factors” that it can be said that the local forum is a “clearly inappropriate” - as distinct from “less appropriate” - one; once that is established, the law presumes that vexation and oppression will be occasioned to the foreign party by compelling it to litigate in a clearly inappropriate forum, without requiring proof of actual vexation or oppression. Analysis of the relevant “connecting factors” shows that this case has everything to do with England and practically nothing to do with New South Wales. Even without evidence of actual prejudice, New South Wales is a clearly inappropriate forum. It follows that, once the defendants had established so strong a nexus with the United Kingdom and so slender a nexus with New South Wales as was apparent here, they did not additionally have to establish actual prejudice, and it was erroneous to discount the potential prejudice on the basis that it was largely a matter of conjecture. The approach that the Master took, in effect, was to require clear proof of actual oppression or vexation. That goes beyond what the “clearly inappropriate forum” test in Voth, properly understood, requires.

85 In an application of this type, necessarily brought at an early stage of the proceedings, the significance of the potential prejudice ought not be discounted by the circumstance that it remains to some extent a matter of conjecture. The court proceeds on the assumption that the case will run to trial on all issues, and considers the relative convenience of each forum on that assumption. It is erroneous to discount as “conjecture” the difficulties which may be occasioned to the foreign party should that assumption prove correct, just because the vexation might be reduced if issues fall away or the case settles. Accordingly, in discounting matters of potential vexation and oppression as “conjecture” because it was too early to say whether they would in fact arise, the Master fell into error.

86 Whatever was the position when the matter was before the Master, all the defendants now offer consent to an extension of time for proceedings to be brought in England. As in Voth, a stay can be conditioned upon that extension being granted. In those circumstances, a stay of the New South Wales proceedings will deprive Ms McGregor of no significant legitimate juridical advantage.

87 On the other hand, failure to grant a stay would subject the first defendants to great prejudice from the circumstance that their insurance would not respond to claims outside the United Kingdom, so that they would be uninsured in respect of a liability which all parties would reasonably have expected to be resolved according to the law of and in the courts of England, by reason of Ms McGregor’s choice of a forum convenient to her but essentially unconnected to the case.

88 In the present circumstances, in my opinion, proper application of the Voth principles admits of only conclusion: New South Wales is a clearly inappropriate forum for this litigation.

89 I make the following orders:-

1. Order that the appeal be allowed.

2. Set aside the order of the Master made on 17 December 2004 (that the notices of motion be dismissed and that the costs of the notices of motion are to be borne by the defendants).

3. In lieu thereof, upon the undertaking of each of the defendants by their counsel to the court that in the event that within three months of this date the plaintiff commences an action in England in respect of the causes of action pleaded in these proceedings, they will consent to and not oppose an application by the plaintiff for a direction under Limitation Act 1980 (UK) , s 33, that the provisions of s 11 of that Act shall not apply to that action, order that these proceedings be stayed.

4. Reserve leave to the plaintiff to apply for dissolution of the stay in the event that she does not succeed in obtaining in England an order disapplying the Limitation Act 1980 (UK), s 11.

5. Order that the plaintiff pay the defendants’ costs of the appeal, and of the motions before the Master, and of the proceedings generally.

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