Miller v Jones (No 2) - [2019] NSWSC 992

Supreme Court

New South Wales

Medium Neutral Citation: Miller v Jones (No 2) [2019] NSWSC 992
Hearing dates: 2 August 2019
Date of orders: 08 August 2019
Decision date: 08 August 2019
Jurisdiction: Common Law
Before: Bellew J
Decision:
1.   The notice of motion filed by the defendant seeking a stay of proceedings is dismissed.
2.   The defendant is to pay the plaintiff’s costs of the motion as agreed or assessed.
3.   The hearing date of 21 October 2019 is confirmed.
4.   The proceedings are listed for further directions before me on 22 August 2019 at 9.30 am.

Catchwords: PRACTICE AND PROCEDURE – Application for stay of proceedings – Where plaintiff commenced proceedings in this Court for negligence arising out of surgical procedures conducted by the defendant in France – Where there was a previous determination that this Court was not an inappropriate forum – Where the defendant commenced proceedings in France subsequent to that determination – Where proceedings now pending in both jurisdictions – Whether the proceedings in this Court should be stayed pending the determination of the proceedings in France – Where the relevant discretionary factors leading to the previous determination remained essentially the same – Where cause of action arose in 2011 and proceedings were commenced in 2015 – Where proceedings listed for hearing in a short time – Application for a stay of proceedings dismissed
Legislation Cited: Civil Procedure Code (Fr)
Cases Cited: Miller v Jones [2017] NSWSC 1096
Oceanic Sun Line Special Shipping Co Inc. v Fay [1998] HCA 32; (1988) 165 CLR 197
Rocklea Spinning Mills Pty Limited v Consolidated Trading Corporation [1995] 2 VR 181
Voth v Manildra Flour Mills Pty Limited [1990] HCA 55; (1990) 171 CLR 538.
Category: Procedural and other rulings
Parties: Lucas Anthony Miller – Plaintiff
Dr David Jones - Defendant
Representation:
Counsel:
B Dooley SC and J Lee – Plaintiff
A Bartley SC & J Layani-Ellis – Defendant
Solicitors:
Carroll O’Dea Lawyers – Plaintiff
Ken Kush & Associates – Defendant

File Number(s): 2015/124172
Publication restriction: Nil

Judgment

INTRODUCTION

Before the Court is a notice of motion filed by the defendant seeking an order which has been pleaded in the following terms:

Pursuant to s 67 of the Court Procedure Act 2005 (NSW) (sic) this proceeding, case number 2015/124172, be stayed pending the outcome of proceedings before the Tribunal De Grande Instance of Toulouse in France.

The order sought has been opposed by the plaintiff.

FACTUAL BACKGROUND

The plaintiff is a former professional rugby league footballer. The defendant is a French national who, at the material time, practiced as an Orthopaedic Surgeon at a clinic in Toulouse, France.
The plaintiff’s case may be summarised as follows.
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. He consulted the defendant who, on 3 January 2011, performed a reconstruction of his ACL. On 19 July 2011 the plaintiff attended…

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 (No 2)

Details

AGLC: Miller v Jones (No 2) [2019] NSWSC 992
Case: [2019] NSWSC 992
Decision Date: 08 August 2019

CaseChat Overview and Summary

In Miller v Jones (No 2), the plaintiff, Miller, sought damages for negligence in the performance of surgical procedures by the defendant, Jones, in France. Miller commenced proceedings in the Federal Court of Australia in 2015, despite an earlier decision that this Court was not an inappropriate forum for the case. Subsequently, Jones initiated proceedings in France. The Court was tasked with determining whether the Australian proceedings should be stayed pending the outcome of the French litigation. The central legal issue was whether the Court should exercise its discretion to stay the Australian proceedings, given that similar proceedings were already underway in France.

The Court examined the relevant discretionary factors previously considered in determining that the Australian Court was not an inappropriate forum. It noted that these factors remained largely unchanged since the earlier decision. The Court also took into account the length of time since the cause of action arose and the commencement of proceedings, as well as the relatively short time before the Australian proceedings were scheduled to be heard. The Court held that the factors favouring the continuation of the Australian proceedings were strong enough to warrant a refusal to stay them. The plaintiff's access to justice in the Australian jurisdiction, along with the timing of the proceedings, played a significant role in this decision.

Ultimately, the Court dismissed the application for a stay of proceedings. The Court found that the balance of convenience and the interests of justice favoured proceeding with the Australian litigation. The Court concluded that it was appropriate to allow the Australian proceedings to continue, as the factors leading to the initial decision that this Court was not an inappropriate forum remained valid and the plaintiff's right to access justice in Australia was an important consideration.

Orders