Miller v Jones

[2017] NSWSC 1096

Supreme Court

New South Wales

Medium Neutral Citation:	Miller v Jones [2017] NSWSC 1096
Hearing dates:	20 April 2017; 17 May 2017; 19 July 2017
Date of orders:	24 August 2017
Decision date:	24 August 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)   The notice of motion is dismissed. (2)   The defendant is to pay the plaintiff’s costs of the notice of motion. (3)   The proceedings are listed for further directions before me on 31 August 2017 at 10.00am.
Catchwords:	PRACTICE AND PROCEDURE – Where the defendant was a medical practitioner practicing in France – Where the plaintiff brought proceedings for damages against the defendant arising from alleged negligence in performing surgery – Where surgery was undertaken in France – Consequent necessity to apply French law – Where the plaintiff and the entirety of the witnesses he proposed to call were in Australia – Limited documentary evidence located in France – Defendant a French national who was fluent in English – Plaintiff a resident of NSW who was not fluent in French – Where the defendant sought a stay of proceedings on the basis that the Supreme Court of NSW was a clearly inappropriate forum – Where defendant failed to discharge the onus – Notice of Motion dismissed
Cases Cited:	BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 Hargood v OHTL Public Company Limited [2015] NSWSC 446 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 McGregor v Potts and ors (2005) 68 NSWLR 109; [2005] NSWSC 1098 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1998] HCA 32 Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538; [1990] HCA 55
Category:	Principal judgment
Parties:	Lucas Anthony Miller – Plaintiff David Jones - Defendant
Representation:	Counsel: B Dooley SC – Plaintiff A Bartley SC & J Ellis – Defendant   Solicitors: Carroll O’Dea Lawyers – Plaintiff Ken Cush & Associates – Defendant
File Number(s):	2015/124172
Publication restriction:	Nil

Judgment

INTRODUCTION

1. On 27 April 2015 the plaintiff, Lucas Anthony Miller, commenced proceedings in this court against the defendant, David Jones. The plaintiff alleges that on 3 January 2011, whilst carrying out a surgical procedure at Medipole Clinique Du Sport, in Toulouse, France, the defendant (inter alia) negligently failed to afford him proper medical, surgical and specialist treatment.

2. By notice of motion filed on 22 June 2016 the defendant seeks an order that the proceedings brought against him in this court be stayed, on the basis that this court is a clearly inappropriate forum in which to hear and determine them. That order is opposed by the plaintiff.

3. A joint court book of three volumes was tendered by consent at the hearing of the motion containing all relevant evidence.

THE FACTS

4. The underlying facts are not in dispute and may be summarised as follows.

5. In December 2010 the plaintiff was playing professional rugby league football in France when he suffered an injury to the Anterior Cruciate Ligament (“ACL”) of his right knee.

6. The defendant is a French national who speaks fluent English. In 2011 he practiced as an Orthopaedic Surgeon at a clinic in Toulouse, France. The plaintiff attended upon the defendant for treatment following his injury. On 3 January 2011, the defendant performed surgery on the plaintiff in the course of which he reconstructed the plaintiff’s left ACL. The plaintiff alleges that on 19 July 2011 he attended the defendant for a follow-up consultation, and was advised that his knee had recovered, and that he was fit to return to playing professional rugby league. The plaintiff then returned to Australia to further his career.

7. It is the plaintiff’s case that upon returning to Australia he commenced training with a view to returning to play rugby league. When he did so, he noticed pain and discomfort in his right knee. He received treatment from a Dr Halpin, an Orthopaedic Surgeon, following which he was referred to a Dr Caldwell, also an Orthopaedic Surgeon. The plaintiff had instability in his knee and was diagnosed with a tear of the left medial meniscus. He asserts that these symptoms were a consequence of the negligence of the defendant in carrying out the surgery in January 2011.

8. The plaintiff thereafter underwent various surgical procedures. Ultimately on 17 July 2012 he underwent revision of the previous ACL re-construction performed by the defendant. He asserts (inter alia) that as a consequence of the defendant’s negligence he has never been able to resume his career as a professional rugby league footballer.

Submissions of the defendant

9. The defendant submits that in all of the circumstances, this court is a wholly inappropriate forum in which to deal with the matter. Senior counsel for the defendant submitted that the only connecting factors between the proceedings and this State were that:

1. the plaintiff lived in Australia;

2. the plaintiff’s case is that his injury was discovered upon his return to Australia; and

3. his current treating doctors are in Australia.

10. It was submitted that these factors were significantly outweighed by a number of countervailing factors which connected the proceedings to France, and which rendered this court a clearly inappropriate forum.

11. Firstly, it was submitted that the conduct of proceedings in France would ensure substantially less inconvenience and expense. It was submitted that in light of what appeared to be the principle issues in the proceedings, there would necessarily be a requirement for evidence to be given by:

1. French experts, about French law;

2. French medical experts; and

3. French infectious diseases experts.

12. Secondly, it was submitted that in light of the fact that liability is in issue, it was anticipated that the defendant would be required to call witnesses from the clinic at which the surgery was carried out. It should be noted that there is no actual evidence before the court as to how many witnesses would fall into that category, or who they might be.

13. Thirdly, it was submitted that the fact that some of the evidence would be given in a different language, and what was said to be the associated risk of a lack of proper understanding of applicable French law, would present major hurdles to any Australian court, and for the parties, in understanding the complexities of the French legal system, the technicality of legal terms and the substantive law to be applied. In this regard it was pointed out, in particular, that if the proceedings were to remain in this court there would be an attendant necessity for medical terms and descriptions of surgical procedures to be translated. It was submitted that there were subtleties and nuances which could be “lost” in any translation. Senior counsel for the defendant accepted that there were facilities available to this court for evidence to be given via audio visual link. However, he submitted that in light of the time difference between Australia and France, the “unpredictability/unreliability of any AVL system”, the difficulty of cross-examining witnesses through an interpreter via AVL, and the anticipated difficulty of convening a panel of experts who speak both French and English, would give rise to considerable inconvenience.

14. Fourthly, it was submitted that France was the “natural forum” because it was the forum with which the proceedings had the most real and substantial connection. Such a connection was said to arise from the fact that:

1. the substantive law which would apply to the proceedings would be the law of France;

2. the defendant’s place of residence, and his place of professional practice, were both in France;

3. the surgery was performed in France;

4. it would be French professional standards which would have a bearing on the ultimate issues in the case; and

5. the relevant evidence (or at least that going to liability) would be predominately located in France.

15. It was submitted that there was, as a consequence, an imbalance between the factors connecting the proceedings with New South Wales and those connecting the proceedings with France.

16. Finally, it was submitted that the plaintiff has available to him, and is at liberty to pursue, benefits under a national compensation scheme which operates in France.

17. In all of these circumstances it was submitted that the continuation of the proceedings in this court would be oppressive, in the sense that they would cause a serious and unfair burden upon the defendant, and would be prejudicial to him.

Submissions of the plaintiff

18. Senior counsel for the plaintiff accepted that the alleged negligence of the defendant occurred in France, and that the applicable law was the law of that country. However, he submitted that nothing advanced on behalf of the defendant established that if a trial were to be held in New South Wales it would be oppressive or prejudicial to the defendant.

19. Senior counsel submitted that the plaintiff would be likely to call evidence from:

1. himself;

2. Dr Halpin, who originally treated him following his return to Australia;

3. Dr Caldwell who performed the revisionary surgery;

4. a medico-legal expert, Dr Millons, in relation to (inter alia) the need for future treatment; and

5. experts in respect of his career as a professional footballer, and his consequent loss of earnings.

20. It was pointed out that all of these witnesses were located in New South Wales.

21. Senior counsel for the plaintiff took specific issue with the proposition that there would be a need, in the event that the proceedings were to remain in New South Wales, for this court to apply “French medical standards”. He pointed out that the practice of orthopaedics is a worldwide one, and that there was no evidence before the court that the standards of orthopaedic surgery in France were in any way different from those in Australia. Whilst senior counsel accepted that the law of France was the substantive law to be applied, he submitted such a factor was not, of itself, a basis for determining that this court was an inappropriate forum. It was submitted that this court regularly applies foreign law, and does so without any difficulty.

22. Senior counsel submitted that the fact that the plaintiff may have benefits available to him under a compensation scheme in France was largely irrelevant to the question of whether the defendant had discharged the onus of establishing that this court was a clearly inappropriate forum. He pointed out that the plaintiff had made it clear in his affidavit that he did not wish to pursue any such rights. It was also submitted that even if the plaintiff did wish to pursue them, he would suffer significant prejudice. Senior counsel pointed out that the plaintiff does not speak French, such that there would be a need for any proceedings in France, and any evidence, to be interpreted for him. This, it was submitted, would inevitably lead to further costs being incurred.

23. Senior counsel further submitted that even if the plaintiff did pursue such rights as might be available to him in France he would necessarily have to instruct French lawyers. Apart from the associated cost, it was submitted that in circumstances where he does not speak French, the plaintiff would necessarily have substantial difficulties communicating with any French lawyers he might retain. It was submitted that these difficulties would be exacerbated by the fact that there would be limitations placed on such communications because of the likely need to conduct them, to a large extent, by telephone or by some other medium such as Skype. It was further submitted that in that in any event, even if he were to pursue such rights as may be available to him in France, the plaintiff would necessarily have to retain lawyers in Australia as well, leading to yet further costs being incurred.

24. In highlighting these matters, senior counsel pointed out that the evidence established that the defendant, although a French national, speaks fluent English, as do all of the medical practitioners who will be called to give evidence in the plaintiff’s case. It was submitted that in circumstances where the entirety of this evidence goes to the issue of liability, justice was best served by the proceedings being conducted in this Court, in English, so as to eliminate any prospect of misunderstanding important issues as a consequence of misinterpretations.

25. Finally, it was submitted that the defence of these proceedings would necessarily be conducted by an insurer, and that the defendant would suffer no prejudice, and incur no additional costs, if the matter were to remain in this court.

CONSIDERATION

The relevant principles

26. The defendant bears the onus of demonstrating that a trial of the proceedings in New South Wales would be productive of injustice to him, and would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial, damaging or vexatious: Hargood v OHTL Public Company Limited [2015] NSWSC 446 at [37] per Davies J, citing Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491.

27. In Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538; [1990] HCA 55, it was observed that the principles to be applied in an application for a stay on the grounds of the forum being an inappropriate one were those stated by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1998] HCA 32. Those principles were summarised by the plurality (Dawson, Gaudron, McHugh and Gummow JJ) in Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 at 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". In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice’”.

28. In McGregor v Potts and ors (2005) 68 NSWLR 109; [2005] NSWSC 1098 Brereton J, having set out part of the passage of the plurality in Henry above, said (at [43]):

… 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.

29. His Honour then observed (at [51]):

… 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.

Consideration

30. The acts and omissions of the defendant which form the basis of the plaintiff’s cause of action against him occurred, in their entirety, in France. That is a fact which may weigh in favour of a conclusion that the proceedings should be stayed: BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 per Callinan J at [259].

31. However, that is not determinative, nor is it the only relevant factor.

32. It is apparent that the entirety of the witnesses whom the plaintiff is likely to call in his case on the issues of both liability and damages are resident in this country. Those witnesses will include expert witnesses as to the plaintiff’s prowess as a footballer, and the earnings which might have been available to him but for his injury. In paragraph 9 of his affidavit of 12 October 2016, the plaintiff said:

One of the claims for compensation which I make is claims (sic) for loss of income due to the shortening of my Rugby League career. I believe that there are experts within the New South Wales jurisdiction who can give opinions as to what my likely earnings would have been in respect of potential involvement in the National rugby league, English super league or French league.

33. The essence of that paragraph, which was not challenged, is that the expert evidence he wishes to call is more readily available in New South Wales than it would be in France.

34. Whilst the defendant himself is a resident of France, and whilst he would obviously be required to travel to Australia for any hearing, there is no evidence before the court that this would cause undue disruption to him. In particular, there is no evidence as to whether it would cause any disruption to his professional practice. Moreover, there is a dearth of evidence as to the identity of those persons who are in France and who may be called on the issue of liability in the defendant’s case. Although the written submissions of the defendant made reference (at [10]) to the fact that the defendant “will have to call the French Clinic, French doctors/nurses and an infectious disease expert” there is no affidavit evidence which supports any such conclusion. There is a complete absence of evidence as to the number of such witnesses that the plaintiff anticipates having to call. Given that it is the defendant who bears the onus on the present application, these matters are significant. Even if the defendant does wish to call witnesses from France, there is no reason why that evidence could not be given via Audio Visual Link. In this day and age, that method of facilitating the giving of evidence is not uncommon. The fact that there are often time zone differences is a factor which the court regularly accommodates in such circumstances.

35. Further, and on the basis of the statement of claim, it would appear that the plaintiff consulted the defendant on a limited number of occasions. Any documentary evidence going to the issue of liability would, seemingly, be similarly limited. There is no suggestion that these documents are not available or that, if the proceedings remained in this court, there would be any difficulty in obtaining them.

36. The evidence also establishes that whilst the defendant speaks English, the plaintiff does not speak French. The plaintiff explained in his affidavit:

[3] My native language is English. I spent from 21 September, 2010 to 3 August, 2011 in France whilst I was playing Rugby League. I do not speak French. As a consequence of my exposure of the French language during the time that I was in France I could undertake simple conversations; however, I could not read French and I could not conduct detailed conversations in French.

…

[7] One of the reasons that I chose Dr Jones to treat my injury was that he was fluent in English. All of my consultations that I had with Dr Jones were conducted in English. In one of my consultations with Dr Jones he told me that one of his parents is English. I believe that Dr Jones has a very good understanding of the English language.

37. It follows that if the present proceedings were stayed, and the plaintiff wished to pursue any rights available to him in France, he would be placed at a significant juridical disadvantage. In that event, all relevant material would obviously be in the French language, necessitating the translation of the entirety of it. There would be no corresponding juridical disadvantage to the defendant in travelling to Australia for the hearing, given the fact that he speaks English and the proceedings will otherwise be conducted in English in this court.

38. It is also significant that in his affidavit the plaintiff stated (at [6]):

I am not in a position financially to retain French lawyers. I have retained my current lawyers on the basis of a no win/no fee agreement. Without the benefit of a no win/no fee agreement I could not conduct the proceedings. In addition my solicitors are funding all of the necessary disbursements associated with the conduct of my claim. Without the benefit of this assistance I could not proceed with my claim.

39. I am satisfied on the basis of that evidence that, at least from the point of view of conducting litigation, the plaintiff is of limited means. It would necessarily be an expensive exercise, and impose significant financial hardship upon him, if he were required to travel to instruct lawyers in France for the purposes of pursuing such rights as he might have in this country.

CONCLUSION

40. Having regard to the factors to which I have referred, it is my view that the defendant has failed to discharge the onus of establishing that this court is a clearly inappropriate forum in the sense described in the authorities. The fact that it will be necessary to determine issues according to French law in the event that the matter remains in this court is not a sufficient basis upon which to conclude that this court is an inappropriate forum. In my view, a consideration of the various factors to which I have referred overwhelmingly supports the opposite conclusion.

41. For these reasons I make the following orders:

1. The notice of motion is dismissed.

2. The defendant is to pay the plaintiff’s costs of the notice of motion.

3. The matter is listed for further directions before me on 31 August 2017 at 10.00am.

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Decision last updated: 24 August 2017