Placer (PNG) Pty Ltd v Anderson

[1997] QCA 74

IN THE COURT OF APPEAL	[1997] QCA 074
SUPREME COURT OF QUEENSLAND

Appeal No. 6559 of 1996

Brisbane

[Placer (PNG) P/L v. Anderson]

BETWEEN:

PLACER (PNG) PTY. LIMITED

(Defendant) Appellant

AND:

BARRY GAVIN ANDERSON

(Plaintiff) Respondent

Davies J.A. Williams J. Mackenzie J.

Judgment delivered 18 April 1997

Joint reasons for judgment of Davies J.A. and Mackenzie J.; separate judgment of Williams J. agreeing with the orders made.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	PERSONAL INJURIES - employment contract - clearly inappropriate forum - factors relevant to determining forum considered - proper law of contract. Spiliada Maritime Corporation v. Cansulex Ltd. [1987] 1 A.C. 460 Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 C.L.R. 538
Counsel:	Mr. R. N. Chesterman Q.C., with him Mr. M. A. Drew for the appellant Mr. S. G. Jones Q.C. for the respondent
Solicitors:	McInnes Wilson & Jensen, town agents for Connolly Suthers, Townsville for the appellant Quinlan Miller & Treston, town agents for Macrossan & Amiet, Mackay for the respondent
Hearing Date:	8 April 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6559 of 1996

Brisbane

Before Davies J.A. Williams J. Mackenzie J.

[Placer (PNG) P/L v. Anderson]

BETWEEN:

PLACER (PNG) PTY. LIMITED

(Defendant) Appellant

AND:

BARRY GAVIN ANDERSON

(Plaintiff) Respondent

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MACKENZIE J.

Judgment delivered 18 April 1997

The appellant is the defendant in an action for breach of contract in the Supreme Court of

Queensland. It appeals to this Court from a refusal by a Judge of the Trial Division to stay the action

on the ground that that court is a clearly inappropriate forum for the determination of the action. The

appellant concedes that the appeal is against the exercise of a discretion with the difficulties that carries

for its success on appeal.

The respondent, who is the plaintiff in that action, was employed by the appellant pursuant to

a contract in writing dated 24 February 1992. During the course of his employment on 24 November

1992 he was injured whilst working at the appellant's mine at Porgera in Papua New Guinea. The

action, although framed in contract, was one for damages for personal injuries arising out of that incident. It is alleged that the respondent's injuries were caused by breaches by the appellant of its

contractual duties of care to the respondent as its employee.

At the time of his injury and at the time of commencement of these proceedings the respondent

was resident in Queensland. Negotiations leading to the making of the contract and the fulfilment by the

respondent of pre-contractual conditions took place in Queensland. However the contract was

executed in Papua New Guinea because, fortuitously, the respondent was temporarily working there

at that time.

The appellant submitted that the learned primary Judge could not reasonably have concluded

that the Supreme Court of Queensland was not a clearly inappropriate forum because a court in Papua

New Guinea was the natural or more appropriate forum and, that being so, this was not one of those

cases in which it could not be said that the Queensland Supreme Court was a clearly inappropriate one:

Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 C.L.R. 538 at 558. The appellant submitted that

a Papua New Guinea court was the natural or more appropriate forum because of the factors, to which

we have referred, that the contract of employment was made there and that the alleged breach of it

occurred there.

There is no doubt that those factors mean that a Papua New Guinea forum was, at the time of

institution of these proceedings, an available and appropriate one, though that is no longer the case

because the limitation period has expired and no offer was made to the learned primary Judge to waive

reliance on the relevant limitation statute in that jurisdiction. But it does not necessarily follow, in our

view, that Papua New Guinea would be the natural or more appropriate forum. That phrase means the

forum with which the action has the most real and substantial connection: Voth at 557. The connecting

factors, in this sense, include factors affecting convenience or expense (such as availability of witnesses)

and factors such as the law governing the relevant transaction: Spiliada Maritime Corporation v.

Cansulex Ltd. [1987] 1 A.C. 460 at 478; Voth at 564-5.

It is impossible to say that the learned primary Judge was plainly wrong in concluding that the

factors affecting convenience and expense favoured the Queensland forum. After his injury the

respondent returned to Queensland and thereafter all of his medical treatment took place in Australia.

Indeed, if it matters, the likelihood that that would occur must have been within the contemplation of

the parties when the contract was made. The respondent intended to and did continue to reside in

Queensland; the contract permitted the respondent to return to his Queensland residence, at the

appellant's expense, at the end of each 20 day work period for a 10 day break and that is what

occurred. The respondent's evidence, which was accepted, was that three witnesses whom he

proposed calling at the trial, as well as he, resided in Australia and that he could not afford to litigate in

Papua New Guinea.

On the other hand, when the matter first came on before the learned primary Judge there was

nothing to indicate that the appellant intended to contest liability or to call any witnesses. It was only

after his Honour remarked on the first of these that on the adjourned hearing date a brief affidavit was

filed indicating an intention to contest liability and to call several witnesses who resided in Papua New

Guinea.

Moreover, whilst the respondent, since his accident, has no connection with Papua New Guinea

and, as we have said, cannot afford to litigate there, the appellant has at all times maintained a presence

in Australia. It has an office at which it recruits employees in Cairns and, it appears, most of its

expatriate employees are engaged in Australia. Moreover it is a large corporation and, unsurprisingly,

has legal advisers in Australia.

As to the law governing the relevant transaction, accepting, as seems likely (though we need not

finally decide that) that it is the law of Papua New Guinea, the learned primary Judge said that it was

not suggested before him that there was any significant difference between the law of Papua New Guinea and Queensland applicable to a case of this kind. There was certainly no evidence to that effect.

Before this Court the appellant relied primarily on such legal matters as that the contract was

made in Papua New Guinea and that the alleged breach occurred there. Both of these contentions may

be accepted although, as to the former as we have indicated, the signing of the contract in Papua New

Guinea was fortuitous and it seems likely that, in the ordinary course of events, it would have been

executed in Queensland. Moreover, if it matters there were important obligations under the contract,

including payment by the appellant, which were required to be performed in Australia. More

importantly, assessment of the relevant connecting factors requires a consideration much broader than

merely of those factors which may be relevant to determine the proper law of the contract or whether

a particular court has jurisdiction. His Honour assessed those relevant connecting factors in the light of

the principles to which we have referred.

The question which his Honour determined is pre-eminently one for the trial Judge, an appeal

should be rare and an appellate court should be slow to intervene: Voth at 570. For the reasons we

have given we cannot be satisfied that the learned primary Judge wrongly exercised his discretion in

refusing the stay which the appellant sought.

The learned primary Judge found that there was no specific disadvantage to the appellant if the

litigation was conducted in Queensland. There was no challenge to that finding, and it clearly appears

correct on the evidence. There is nothing in the appellant's material to establish that it would be

oppressive to the appellant or vexatious to allow the action to continue in the Queensland court. There

is nothing to suggest that the case could not be tried suitably in the interests of all parties in that court.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 6559 of 1996

Brisbane

Before Davies JA

Williams J

Mackenzie J

[Placer (PNG) P/L v. Anderson]

BETWEEN:

PLACER (PNG) PTY LTD

(Defendant) Appellant

AND:

BARRY GAVIN ANDERSON

(Plaintiff) Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 18 April 1997

I agree with the reasons for judgment prepared by Davies JA and Mackenzie J and with

the orders they propose.