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

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

THE FACTS

The underlying facts are not in dispute and may be summarised as follows.
In December 2010 the plaintiff…

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.

Continue reading Miller v Jones

Details

AGLC: Miller v Jones [2017] NSWSC 1096
Case: [2017] NSWSC 1096
Decision Date: 24 August 2017

CaseChat Overview and Summary

In the matter of Miller v Jones, the plaintiff brought proceedings against the defendant, a medical practitioner practicing in France, for damages arising from alleged negligence in performing surgery. The surgery in question took place in France, necessitating the application of French law to the proceedings. All proposed witnesses for the plaintiff were located in Australia, with limited documentary evidence available in France. The defendant, a French national fluent in English, was opposed to the proceedings being heard in the Supreme Court of NSW, arguing that it was a clearly inappropriate forum. The plaintiff, a resident of New South Wales, was not fluent in French.

The primary legal issue before the court was whether the Supreme Court of NSW was an appropriate forum to hear the matter, considering the geographical and linguistic challenges. The court needed to assess whether the defendant had discharged the onus of establishing that the proceedings should be stayed. This involved weighing the convenience of the parties, the location of the witnesses, and the availability of evidence against the principle of forum non conveniens.

The court found that the defendant had not successfully demonstrated that the Supreme Court of NSW was a clearly inappropriate forum. Factors considered included the defendant's fluency in English, the plaintiff's residency in New South Wales, and the limited documentary evidence available in France. The court held that the defendant's failure to discharge the onus meant that the proceedings should continue in the Supreme Court of NSW. Consequently, the notice of motion to stay the proceedings was dismissed.

Orders