Morgan v Union Shipping (NZ) Ltd

[2001] NSWSC 325

CITATION:	Morgan v Union Shipping (NZ) Ltd [2001] NSWSC 325
FILE NUMBER(S):	SC 20273/00
HEARING DATE(S):	22, 23, 26 & 28 March 2001
JUDGMENT DATE:	4 May 2001
PARTIES :	Sean Morgan Union Shipping (New Zealand) Limited
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Mr Larry King SC with Mr Kernick for the Plaintiff (Respondent) Dr Andrew Bell for the Defendant (Applicant)
SOLICITORS:	Carroll & O'Dea Solicitors for the Plaintiff (Respondent) Norton White Lawyers & Notaries for the Defendant (Applicant)
CATCHWORDS:	Private International Law - choice of law - injury occurring within foreign flagged vessel in New South Wales territorial waters - whether law of the flag or law of New South Wales applies - inappropriate forum - whether correct test in New South Wales is "clearly inappropriate" or "inappropriate"
LEGISLATION CITED:	Accident Insurance Act 1998 (NZ) Accident Rehabilitation and Compensation Insurance Act 1992 (NZ) Accident Rehabilitation and Compensation Insurance (Ordinary Residence Definition) Regulations 1992 (NZ) Supreme Court Act 1970 (NSW)
CASES CITED:	Breavington v Godleman (1988) 169 CLR 41 C E Heath Underwriting & Insurance (Australia) Pty Ltd v Barden (Supreme Court, 19 October 1994, unreported) Eastern Petroleum Australia Ltd v Horseshoe Lights Gold Pty Ltd (1985) 9 ACLR 980 Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Goddard v Polar Cream Pty Ltd (1946) 47 SR (NSW) 154 Hellenic Lines Ltd v Rhoditis 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731 (1970) Hospitals Contribution Fund of Australia Ltd v Hunt (1982) 44 ALR 365 Lauritzen v Larsen 345 US 571, 97 L Ed 1254, 73 S Ct 921 (1952) McKinnon v Iberian Shipping Co Ltd [1955] SLT 49 Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197 Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group (Supreme Court, 6 May 1980, unreported) Phillips v Eyre (1870) LR 6 QB 1 Romero v International Terminal Operating Co 358 US 354, 3 L Ed 2d 368, 79 S Ct 468 (1959) Silverton Ltd v Harvey [1975] 1 NSWLR 659 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 St Pierre v South American Stores [1936] 1 KB 382 The Mary Moxham [1876] 1 PD 107 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 W F Motors Pty Ltd v Maydwell (Supreme Court, 23 April 1993, unreported) Wickstead v Browne (1992) 30 NSWLR 1 Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188
DECISION:	1. The defendant's notice of motion filed on 11 December 2000 is dismissed; 2. The defendant is to pay the plaintiff's costs of the notice of motion.

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THE SUPREME COURT
OF NEW SOUTH WALES

COMMON LAW DIVISION

Friday 4 May 2001

SPERLING J

20273 / 00 Sean Morgan v Union Shipping (New Zealand) Ltd

Proceedings in this Court

1    The plaintiff, Sean Morgan instituted proceedings against the defendant, Union Shipping New Zealand Ltd, by statement of claim filed in this court on 8 June 2000. It is alleged that on 5 October 1998 the plaintiff was employed by the defendant as a seaman and was working on a coal barge at Port Kembla Coal Terminal while coal was being unloaded from the barge by means of a mechanical conveyor belt. He alleges that, while so employed, he received injury in the course of his employment. It is further alleged that the accident occurred when the conveyor belt malfunctioned and when, as he was attempting to fix the roller of the conveyor belt, his arm became caught in the conveyor belt rollers causing severe injury.

2    It is alleged that the defendant was negligent and in breach of statutory duty in a number of ways including failure to fence dangerous parts of the equipment and failure to devise and maintain a safe system of work. These allegations in the statement of claim are supplemented by the narrative of facts in the plaintiff’s DCM documents, filed on 8 June 2000, where it is asserted that a protective guard on the main roller had been removed and had not been replaced.

3    The plaintiff’s DCM documents also includes an assertion that the plaintiff and the defendant resided in New Zealand.

4    A statement pursuant to Pt 33 r 8A, also filed on 8 June 2000, asserts that the plaintiff was born on 21 April 1969, that the injury to the right arm required internal fixation with residual disabilities, including restriction of movement. It is stated that all out of pocket expenses have been paid to date by the New Zealand Accident Compensation Corporation. It is alleged that the plaintiff required ongoing treatment, and has been totally incapacitated for all work since 5 October 1998. It is mentioned that he has received weekly compensation payments.

Notice of motion

5    On 11 December 2000, the defendant filed a notice of motion in these proceedings claiming the following orders:

1. That service in the proceedings be set aside on the ground that New South Wales is an inappropriate forum;

2. In the alternative, that the proceedings between the parties be permanently stayed or that the Court decline to exercise its jurisdiction in the proceedings on the basis that the plaintiff’s claim is governed by New Zealand law and that, under New Zealand law, the Plaintiff is not entitled to damages at common law.

6    In relation to para 1 of the notice of motion, the defendant moved under Pt 10 r 6A and, alternatively, Pt 11 r 8. By the combined operation of those rules, a defendant who has been served with originating process outside Australia may apply for an order setting the process aside on the ground that this court is an inappropriate forum for the trial of the proceedings.

7    In relation to para 2 of the notice of motion, the defendant asserts that New Zealand law would apply here and that the plaintiff is not entitled to damages under that law. The gist of para 2 is that the proceedings cannot succeed for that reason.

8    The claim under this paragraph is akin to an application for summary judgment on the ground that no reasonable cause of action is disclosed. As such, it is governed by the same principles. In the circumstances of the present case, the defendant must satisfy the court that the plaintiff’s case is, by reason of the issues raised, so weak that to permit the proceedings to go to trial would be futile: Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group (Supreme Court, 6 May 1980, unreported, per Hunt J).

9    There is a close analogy with the “triable issue” concept discussed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Where a point of law is involved, summary judgment is generally not ordered if the point of law is arguable from the standpoint of the respondent: Hospitals Contribution Fund of Australia Ltd v Hunt (1982) 44 ALR 365, Eastern Petroleum Australia Ltd v Horseshoe Lights Gold Pty Ltd (1985) 9 ACLR 980. The court may, however, decide a question of law on an application of this kind if it forms the view that it is appropriate to do so; Silverton Ltd v Harvey [1975] 1 NSWLR 659; Goddard v Polar Cream Pty Ltd (1946) 47 SR (NSW) 154; Wickstead v Browne (1992) 30 NSWLR 1; Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241. The court is not bound to decide complex questions of law on a motion of this kind where the competing positions are both arguable.

10    As will appear, an issue arises as to whether New South Wales or New Zealand law would apply to the liability issue on a hearing of the plaintiff’s claim for damages in this Court.

11    The following affidavits were read in support of the motion: by Mr T Lloyd sworn 15 August 2000, by Mr J R Gresson sworn 8 December 2000 and by Mr T Llyod sworn 26 March 2001. Various documents were annexed to the affidavits. An affidavit sworn by the plaintiff on 22 March 2001 was also read. Further documents were tendered, including a statement of agreed facts, extracts from the New Zealand accident compensation legislation and documents extracted from the file of the New Zealand Accident Compensation Corporation.

The evidence

12    A report dated 7 October 1998, called a “Report of Mishap to Seafarer or Passenger” was made by the master of the vessel on which the plaintiff was injured. The report identified the plaintiff’s immediate supervisor as second officer, William McDonald. It also stated that the accident happened at Port Kembla and that the location of the accident on board was the conveyor belt tunnel. The accident was described in the report in the following terms:

“Whilst discharging coal at Port Kembla, Mr Morgan was gearman. The conveyor belt slowed down and nearly stopped. Whilst he was checking the main drive roller for slipping, the belt sped up and Mr Morgan’s glove and overalls became caught dragging his arm into contact with the drive roller and conveyor belt.”

13    The report answered “Yes” to whether human factors and / or technical conditions were relevant. Working on moving or dangerous equipment was specified as a human factor and inadequate guarding or absence of guard was specified as a “technical condition”. Later in the document, the report specified that the roller was not guarded at all. Further as to “technical conditions”, the report specified that the roller was not guarded. As the explanation for the plaintiff working on moving or dangerous equipment, the report stated that the plaintiff was investigating why the conveyor belt had slowed down. In response to a question as to what was being done to prevent similar accidents, the report answered, “Fitting proper guard over and around the drive roller”.

14    This evidence establishes that the events relating to the plaintiff’s injury and to any liability on the part of the defendant occurred wholly within the vessel.

15    The documentary evidence shows that the vessel was owned by the defendant, a New Zealand corporation, and registered in New Zealand.

16    Contemporaneous documents are to the effect that the plaintiff was resident in New Zealand at the time of the accident. The plaintiff’s engagement document for service on the vessel, dated 30 June 1998, so states. Claim documents signed by the plaintiff on 11 April 2000 specify the same New Zealand residential address. The uncontested evidence is that, following his engagement, the plaintiff was paid his wages in New Zealand, after deduction of New Zealand income tax. However, in his affidavit sworn on 22 March 2001, the plaintiff states that he has been permanently resident in Brisbane since 28 April 1998, having resided with his family in New Zealand prior to that date. Conformably, the agreed statement of facts, tendered in evidence, states that, between April and October 1998 - a period of some six months immediately prior to the accident - the plaintiff lived for 7 to 8 weeks at a time with his family in Brisbane; took 2 or 3 days at a time to make his way from Brisbane to New Zealand to start voyages in the course of his employment, staying overnight with his parents or with friends in New Zealand; worked at sea for 7 to 8 weeks; and then took a day or two to travel back from New Zealand to Brisbane, sometimes staying overnight with his parents in New Zealand. The agreed statement of facts goes on to record that, immediately following the accident and until December 1998, the plaintiff remained in Australia, receiving medical treatment in Wollongong and Brisbane. Between December 1998 and March 1999, the plaintiff was continuously in New Zealand for the purposes of medical treatment, except for a couple of short periods in Brisbane. Between March 1999 and March 2000, the plaintiff lived in Australia with his family on the Gold Coast (having sold his house in Brisbane in January 1999), with the exception of three or four trips to New Zealand for medical treatment, each of a few weeks’ duration. Between March 2000 and July 2000, the plaintiff lived in New Zealand with his parents because of the need for surgery to remove a plate from his arm and because of marital difficulties (his partner remaining in the house on the Gold Coast with the children). Since July 2000, the plaintiff has resided exclusively on the Gold Coast with his family.

17    The uncontested evidence is that, as at the date of the plaintiff’s injury, the relevant legislation in force in New Zealand was the Accident Rehabilitation and Compensation Insurance Act 1992. The “no fault” scheme under this legislation provides for weekly compensation and cover for medical and hospital treatment. In a letter dated 21 December 1998, the Accident Rehabilitation and Compensation Insurance Corporation formally accepted that the accident was a work injury under the scheme. Compensation payments have since been made and medical expenses have been covered.

18    It appears that residence of some kind is a condition of entitlement for benefits under the New Zealand scheme. Section 9 of the 1992 statute provides that the Act applies in respect of personal injury suffered outside New Zealand by any person who is “ordinarily resident in New Zealand” for which there would be cover if the injury had occurred in New Zealand. The Accident Rehabilitation and Compensation Insurance (Ordinary Residents Definition) Regulations, 1992, include a definition of the term “ordinarily resident in New Zealand”. The definition is an extended one. It would appear that, in the plaintiff’s case, entitlement depended upon having a permanent place of abode in New Zealand. However, clause 21(f) of the collective employment contract, which covered the plaintiff’s engagement, provides that, where an employee has an accident in the service of a vessel whilst on articles they shall be entitled to any benefits provided by the Accident Rehabilitation and Compensation Insurance Act 1992. That provision is not expressly limited by a condition as to residence.

19    Whether there is some special regulation or arrangement with the Corporation in relation to seafarers I do not know. The clause raises the possibility that there may be a contractual entitlement on the part of the defendant’s seagoing employees of the defendant to the equivalent of benefits equivalent to those payable under the scheme in the event that an employee does not satisfy the residence requirement of the scheme.

20    No expert evidence was led as to the plaintiff’s legal entitlement to benefits under the scheme or to the equivalent of such benefits under New Zealand law in the circumstances of the present case. In the absence of expert evidence, I am not satisfied one way or the other as to whether the plaintiff was and / or is now a person entitled to benefits under the New Zealand legislation or to the equivalent of such benefits. If the plaintiff has been paid benefits on a false basis, he might be liable to refund whatever has been paid and he might not be entitled to receive further benefits. That is a matter of New Zealand law.

21    A statutory bar against actions for compensatory damages for personal injury is incorporated in the 1992 New Zealand statute and is maintained in later legislation. It prohibits any proceedings independently of the code being brought in any court in New Zealand. (The relevant provision is s 14 of the 1992 statute. A provision in the same terms appears as s 394 in the 1998 statute.) No expert evidence has been called as to the proper construction of that part of the code. I am unable to say that New Zealand law, if applicable, would bar the recovery of damages in a New South Wales court but, for the purpose of the argument, I assume that it would.

Facts found or assumed

(1) On 5 October 1998, the plaintiff received injury on a vessel in Australian territorial waters.

(2) The vessel was owned by the defendant, a New Zealand corporation, and was registered in New Zealand.

(3) The events relating to the plaintiff’s injury and to any liability on the part of the defendant occurred wholly within the vessel.

(4) At the time of his engagement, in June 1998, the plaintiff gave a New Zealand address as his place of residence. His wages were paid in New Zealand and New Zealand income tax was deducted. However, the plaintiff had, in the ordinary sense, been permanently resident in Queensland since 28 April 1998.

(5) From the date of the accident, in October 1998, until December 1998, the plaintiff remained in Australia, receiving medical treatment in Wollongong and in Brisbane. Between December 1998 and March 1999, he was in New Zealand receiving medical treatment except, for a couple of short periods in Brisbane. Between March 1999 and March 2000, the plaintiff resided in Queensland, with the exception of three or four trips to New Zealand for medical treatment, each of a few weeks duration. Between March 2000 and July 2000, he lived in New Zealand for the purpose of further medical treatment and because of marital difficulties. Since July 2000, the plaintiff has resided in Queensland with his family.

(6) The plaintiff has received weekly compensation and cover for medical treatment under the New Zealand “no fault” accident compensation scheme. Whether he has been entitled to receive such benefits, whether he is liable to refund what has been paid, and whether he is entitled to further benefits under the scheme is unknown.

(7) The plaintiff is not entitled to recover damages in this court if the law applicable to liability for any such damages is New Zealand law.

Does New South Wales law apply in an action for damages for injury received on a vessel in New South Wales territorial waters?

22    The relevant principle is stated by D P O’Connell in The International Law of the Sea Vol. 2 (Clarendon: Oxford, 1984), at 900:

“ Foreign Ships in British Territorial Waters. There seems to be no doubt that any injury occurring on a foreign ship in British territorial or internal waters is governed by English law as the lex loci delicti and no reference is made to the law of the flag. This is certainly the case respecting foreign ships in English ports, and there seems to be no logical basis in English law for distinguishing between foreign ships in ports and in the territorial sea.”

23    This statement of principle is consistent with United Kingdom authorities relating to the applicability of the law of foreign states to casualties occurring within their territorial waters. Historically, the courts of the United Kingdom have decided whether to exercise their jurisdiction in such cases by asking whether the alleged wrong would be actionable in the United Kingdom and not justifiable in the foreign state. That has required a determination in such cases as to whether the law of foreign states applies to wrongs allegedly committed in their territorial waters. It has been held, as a principle of private international law, that it does: The Mary Moxham [1876] 1 PD 107; McKinnon v Iberian Shipping Co Ltd [1955] SLT 49.

24    The principle that the law of the littoral state applies to alleged wrongs committed in the territorial waters of the state applies no less to casualties occurring within the territorial waters of a common law state where the jurisdiction of that state is invoked.

25    Torts committed on board a ship on the high seas are governed by the law of the country where the ship is registered (the law of the flag). The only authority suggesting that this principle may apply to injury received in territorial waters (where the events have occurred wholly within the vessel) - apart from the advocacy of some text writers - is apparently to be found only in three United States decisions to which reference was made in argument: Lauritzen v Larsen 345 US 571, 97 L Ed 1254, 73 S Ct 921 (1952); Romero v International Terminal Operating Co 358 US 354, 3 L Ed 2d 368, 79 S Ct 468 (1959); Hellenic Lines Ltd v Rhoditis 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731 (1970). At my level in the judicial hierarchy, I would not entertain the introduction of such a qualification to well settled common law principle.

26    In the result, I hold that the law to be applied by this Court, in determining the question of liability in the present case, is the law of New South Wales and not the law of New Zealand. It follows that there is no statutory bar to the recovery of damages in this case.

27    Paragraph 2 of the notice of motion should accordingly be dismissed.

28    I would add that the question of applicable law might have been resolved incontrovertibly in the present case by operation of a legal principle not referred to in argument. At common law, the law of the littoral state applies to internal or inland waters (including bays and harbours): Lumb RD, The Law of the Sea and Australian Off-Shore Areas (2nd ed.) (St Lucia: University of Queensland Press, 1978); Churchill RR & Lowe AV, The Law of the Sea (3rd ed.) (Manchester University Press: Manchester, 1999). In the absence of argument, I make no finding as to whether, on the evidence, the vessel in the present case was so located within the meaning of this principle.

Should the court exercise its jurisdiction in the present case?

29    The leading case in Australia concerning the considerations relevant to the exercise of this Court’s discretion is Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

30    In Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197, a resident of Queensland sued in New South Wales for injury sustained on a ship in Greek waters. The ship owner was incorporated in Greece and the ship was registered in Greece. The ports of departure and destination for the journey were in Greece. Notwithstanding these factors, it was held that the primary judge’s refusal to grant a stay or dismiss the action should stand.

31    In Voth, Mason CJ, Deane, Dawson and Gaudron JJ, in their joint judgment, sought to synthesise the opinions of the majority in Oceanic Sun Line Special Shipping Co Inc v Fay (supra) so that there would be a single authoritative statement of principle.

32    The proceedings were brought by two related companies against a Missouri accountant for alleged negligence in failing to provide certain advice. It was held, per Mason CJ, Deane, Toohey and Gaudron JJ, that the action should be stayed; per Mason CJ, Deane, Dawson and Gaudron JJ (at 557) on the ground that New South Wales was clearly an inappropriate forum.

33    In Oceanic and in Voth, the majority declined to apply the principles governing the doctrine of forum non conveniens as stated in the decision of the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460. The test laid down in Spiliada was to choose the forum in which the case could most suitably be tried, having regard to the interests of all the parties and the ends of justice, including considerations of efficiency, expedition and economy. An applicant would succeed by showing that there was another available forum which was clearly or distinctly more appropriate than the local forum.

34    In Voth (at 554), the joint judgment, which supported the “clearly inappropriate forum” test, identified the following common ground between the majority judgments in Oceanic. A plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. The traditional power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process, the rationale being the avoidance of injustice. The mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction will provide a more appropriate forum does not justify dismissal or stay. The jurisdiction to grant a stay or dismiss the action is to be exercised with great care or extreme caution.

35    These principles, it may be noted, raise a strong presumption against an application succeeding.

36    Observations were made in the joint judgment in Voth concerning the application of the “clearly inappropriate forum” test. At 558, it was said that the test focussed on the advantages and disadvantages arising from the proceedings continuing in the selected forum rather than on the need to make a comparative judgment between the two forums, although the suitability of the alternative forum was relevant to the appropriateness or otherwise of the selected forum.

37    At 558-9, it was said that the availability of relief in a foreign forum is a relevant factor. However, it was said that this consideration did not require the formation of subjective views about the comparative merits of legal systems. Indeed, circumstances could exist, it was said, in which the local court was clearly inappropriate notwithstanding that there was no alternative tribunal which would entertain the proceedings. The example was given of a claim for damages for personal injury where the courts of the only country with which the parties or the accident had any real connection were denied jurisdiction by a legislative scheme providing for limited benefits and compensation.

38    The majority went on to say (at 564) that, subject to the question of onus, the principles to be applied in applications for a stay on inappropriate forum grounds are those stated by Deane J in Oceanic.

39    I turn then to what was said by Deane J in Oceanic (at 247). His Honour accepted as correct the statement in St Pierre v South American Stores [1936] 1 KB 382, 398, namely, that the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him. Deane J said that “oppressive” should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging; and that “vexatious” should be understood as meaning productive of serious or unjustified trouble and harassment. This is strong language.

40    In that context, Deane J identified what he saw as the modern content of the traditional principles governing the present kind of application. The power was discretionary, involving a subjective balancing process in which the relevant factors would vary and in which the questions of comparative weight to be given to particular factors and the decision whether the power should be exercised are matters for individual judgment and, significantly, of impression. The power should only be exercised in a clear case. The onus lay on the defendant to satisfy the court that it is so inappropriate a forum that the continuation would be oppressive and vexatious to the defendant. Ordinarily, a defendant will not discharge the onus unless he can identify some appropriate and available foreign tribunal. The mere fact that a tribunal in some other country would be a more appropriate forum does not, however, necessarily mean that the local court is a clearly inappropriate one.

41    In the joint judgment in Voth (at 564-5), their Honours went on to say that, in the application of principle in the way stated by Deane J in Oceanic, the discussion by Lord Goff in Spiliada (supra) of relevant “connecting factors” and “a legitimate personal or juridical advantage” provides valuable assistance.

42    The “connecting factors” mentioned by Lord Goff in Spiliada (at 478) were said by him to include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transactions and the places where the parties respectively reside or carry on business.

43    The observations by Lord Goff in Spiliada concerning “a legitimate personal or juridical advantage” (at 482-4) were, in tenor, against giving much weight to any such advantage on the part of the plaintiff. The observations included the following. The mere fact that the plaintiff has such an advantage in proceedings in the local court cannot be decisive. An advantage to the plaintiff will ordinarily give rise to a comparable disadvantage to the defendant. Differences in relation to the scale on which damages are awarded, procedures for discovery, power to award interest, and the relative generosity of limitation periods do not represent advantages which should deter a court from granting a stay. Systems of justice have their virtues and vices. Injustice is not done if a party is compelled to accept a well recognised system applicable in an appropriate forum elsewhere and, generally speaking, that is so even if the plaintiff’s action would be time barred there.

44    In Voth, the argument that New South Wales was a clearly inappropriate forum was said in the joint judgment (at 566), to have been largely based on the proposition that the cause of action sued on was a foreign tort and that, in accordance with the second rule in Phillips v Eyre (1980) LR 6 QB 1 as explained in Breavington v Godleman (1988) 169 CLR 41, the plaintiff had to show, in order to succeed in the action in New South Wales, that there would be civil liability in Missouri on the part of the defendant. It was held that the tort, if there was one, was committed in Missouri and, accordingly, if the matter were litigated in New South Wales, the defendant would be liable to the plaintiff only if he was liable under the law of Missouri (at 569-70). The content of the law of Missouri, it was said, had a fundamental bearing upon the determination of the dispute between the parties (at 570).

45    Because the judgments at first instance and in the Court of Appeal were vitiated by error, the High Court exercised the discretion afresh. In doing so (at 570), the court took into account that the action had a substantial connection with the law of Missouri, among other considerations.

46    Conformably with what had been said in Spiliada (see above), scant weight was given in the joint judgment to any legitimate personal or juridical advantage to the plaintiff flowing from trial in New South Wales. The prima facie right of a plaintiff to choose the jurisdiction was acknowledged but, beyond that, it was said that any advantage to the plaintiff arising from a comparison of the law in the two jurisdictions had little weight (at 571).

47    The court mentioned (at 571) three further juridical advantages associated with trial in New South Wales: an effective limitation bar in Missouri; limited recovery of costs in Missouri; and a less advantageous rule relating to the award of damages by way of interest in Missouri. The first of these advantages was met by an undertaking not to plead the limitation defence. The second and third were said (at 571) to be of diminished importance in the context of the competing connections between the respective forums and the subject matter of the proceedings.

48    Having regard to those connections, it was held that New South Wales was clearly an inappropriate forum in which to permit the action to proceed (at 571). A stay was accordingly ordered, subject to an undertaking not to raise the limitation point in Missouri and provided the proceedings were commenced in Missouri within 3 months.

49    In summary, a plaintiff is entitled to choose where to sue. It is for the defendant to show that continuance of the action in that jurisdiction would work injustice, in the sense that it would be oppressive or vexatious to the defendant, being seriously and unfairly burdensome, prejudicial and damaging or productive of serious or unjustifiable trouble and harassment. Jurisdiction should be declined only in a clear case. Connecting factors are relevant. They include convenience and expense, the law governing the matter in question, and the places where the parties respectively reside or carry on business. Little weight is to be given to the juridical advantage to the plaintiff of suing in an Australian Court rather than in some other jurisdiction having a connection with the case.

50    As mentioned earlier in this judgment, the rules of the Supreme Court refer to “an inappropriate forum”. However, on authority, the rules do not relax the common law test: WF Motors Pty Ltd v Maydwell (Supreme Court, 23 April 1993, unreported), C E Heath Underwriting & Insurance (Australia) Pty Ltd v Barden (Supreme Court, 19 October 1994, unreported), Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188.

51    Considerations which work against any finding that this Court is a clearly inappropriate forum include the following:

(a) the strong presumption in favour of allowing a plaintiff to choose his or her jurisdiction;

(b) the injury was received in New South Wales;

(c) the plaintiff’s initial and final medical treatment was received in New South Wales and in a neighbouring state of the Commonwealth;

(d) the question of liability would be determined under New South Wales law at a trial in this Court;

(e) the plaintiff resides in a neighbouring state of the Commonwealth; and

(f) there is a legitimate forensic advantage to the plaintiff associated with trial in New South Wales because of the bar against the recovery of compensatory damages in New Zealand, although this is a consideration of little weight.

52    Considerations operating in favour of the defendant include the following:

(a) the defendant is a New Zealand corporation, albeit with trade connections in New South Wales;

(b) the defendant engaged the plaintiff as a seaman on the basis that he was resident in New Zealand; and

(c) the plaintiff was paid his wages in New Zealand and New Zealand income tax was deducted.

53    It is significant, however, that there is no direct evidence of practical prejudice to the defendant arising from a trial in this court and little from which any inference of practical prejudice could be inferred. If the defendant has a defence to the plaintiff’s claim under New South Wales law, there is nothing before the Court at this stage to suggest in a positive way that this is so. There is no reason to find, therefore, that it would be necessary for the defendant to bring witnesses as to liability to New South Wales for a trial in this Court. Similarly, in relation to the course of treatment provided to the plaintiff in New Zealand, there is nothing to suggest that there is anything contentious about that, or that there would be any need for either side to call New Zealand witnesses in that regard. As to the assessment of the plaintiff’s alleged on-going disabilities, evidence in that regard can be obtained as readily, by examination and report, in Australia as in New Zealand, with the ready availability of the examining medical practitioners to give evidence in New South Wales.

54    I do not find that the defendant would suffer any practical prejudice arising from trial in this Court, let alone that trial in New South Wales would have the serious repercussions for the defendant referred to by Deane J in Oceanic and picked up in Voth.

55    Once it is determined - as it is - that New South Wales law would apply, the defendant has a very weak case, falling far short of displacing the strong presumption against applications of this kind. I am not satisfied that this Court is a clearly inappropriate or an inappropriate forum (if there be a difference).

56    Paragraph 1 of the defendant’s notice of motion should accordingly be dismissed.

Orders

1. The defendant’s notice of motion filed on 11 December 2000 is dismissed.

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

-oOo-

Last Modified: 05/07/2001