New South Wales Supreme Court CITATION : Jacqueline Thea McGregor v Three Counties Equine Hospital & Ors [2004] NSWSC 1203 HEARING DATE(S) : 15 December 2004 JUDGMENT DATE : 17 December 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The notices of motion are dismissed; the costs of the notices of motion are to be borne by the defendants; the exhibits may be returned. CATCHWORDS : Stay of proceedings - proceedings brought in New South Wales in respect of torts arising in the United Kingdom - questions of overseas witnesses and lack of indemnity - expiry of the relevant limitation period - discretionary power and onus. LEGISLATION CITED : Supreme Court Rules 1970, Part 10 rules 1A, 6A, Part 11 rule 8. Hyde v Agar (1998) 45 NSWLR 487 CASES CITED : Regie National des Usines Renault SA v Zhang (2002) 76 ALJR 551 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Jacqueline Thea McGregor (Plaintiff) PARTIES : Graham Potts, Chris Rea & Andrew Harrison t/as Three Counties Equine Hospital (First Defendant) Worcestershire Acute Hospital National Health Service Trust (Second Defendant) Dr T J Hall (Third Defendant) FILE NUMBER(S) : SC 20117 of 2003 COUNSEL : Mr I Wales SC (Respondent/Plaintiff) Dr A Bell (Applicant/Defendant) Lough Wells Duncan (Plaintiff) SOLICITORS : Ebsworth & Ebsworth (First Defendant) Deacons (Second & Third Defendants) - 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass 17 December 2004 20117 of 2003 Jacqueline Thea McGregor v Three Counties Equine Hospital & Ors JUDGMENT 1 Master: The plaintiff claims that on or about 21 May 2000 she suffered personal injury in the course of her employment with the first defendants (who practice as veterinary surgeons). She was employed as a locum veterinary surgeon. She was kicked in the face by a horse and sustained injury to her face, head and left eye. The injuries are largely said to arise from the system of work. The incident took place in the United Kingdom. 2 She was admitted to hospital (the second defendant) and underwent surgery performed by the third defendant. 3 She returned to Australia. She underwent further surgery (performed by Dr Bowler). It is the plaintiff's case that this was corrective surgery. 4 On 13 May 2003, she commenced proceedings in this court claiming damages in respect of the personal injury. She alleges negligence on the part of each of the defendants. 5 The plaintiff effected service of the process outside Australia (in about the middle of 2003). No application for leave has yet been made. None of the defendants have filed an appearance. All defendants have moved to have, inter alia, the process stayed. 6 On 23 September 2003, notices of motion were filed on behalf of all defendants. Prior to the filing of the notices of motion, there was a status conference. It was appointed for 12 August 2003. The conference was adjourned to enable the plaintiff to consider whether or not she intended to continue with the action in New South Wales. Orders were made requiring the defendants to bring any applications pursuant to Part 11 rule 8 of the Supreme Court Rules 1970 (the Rules) on or before 23 September 2003. 7 On 8 September 2003, the plaintiff notified the defendants of her intention to continue with the proceedings in New South Wales. 8 The plaintiff has instructed solicitors who practice in Wollongong. She herself lives in Victoria (where she practices as a veterinary surgeon). It is not suggested that she is unable to travel abroad. Dr Bowler is relied on as providing the evidence of a medical expert on the question of negligence alleged against the second and third defendants. He practices from Charlestown (in the Newcastle region). 9 The relevant limitation period for bringing the plaintiff's claims in the United Kingdom is three years. Accordingly, the time limitation for the commencement of proceedings in the United Kingdom has now expired. 10 It may be inferred that the plaintiff resided for a time in New South Wales following her return from the United Kingdom. Further, it may be inferred that the need for both surgery and legal advice manifested whilst she was in the state. As, inter alia, the surgery was performed in New South Wales, it is open to the plaintiff to contend that damage has been suffered in this state (such suffering of damage is not in dispute). Presumably, it may have been also open for her to contend that damage had been suffered in her present place of residence (Victoria). 11 The defendants rely on a number of affidavits (sworn by Messrs Mann and McGrath and Kerry Therese Chambers). The material includes various witness statements. It is unnecessary to repeat the detail of the material. I shall refer to certain of the material in due course. At this stage, it suffices to say that it throws up material that gives support to various arguments propounded by the defendants. 12 The plaintiff relies on an affidavit sworn by Mr Wells (the solicitor for the plaintiff). He was briefly examined orally. His affidavit annexes a copy report from Dr Bowler. The report has been served on the defendants. 13 The report makes clear the case that is being propounded against the second and third defendants. It seems to be a relatively straightforward case of error in the conduct of the surgery. 14 The causes of action are founded in tort. What is alleged are separate torts. There is no dispute that the applicable law is that of the United Kingdom and that the substantive law is a very significant factor in the exercise of a discretion to grant a stay. 15 The plaintiff has established jurisdiction under Part 10 rule 1A of the Rules. In those circumstances, she was entitled to effect service outside Australia. 16 The defendants rely on Part 10 rule 6A and Part 11 rule 8. The only relief that is sought is that of a stay of the proceedings. 17 Part 10 rule 6A is in the following terms:- (1) The Court may make an order of a kind referred to in Part 11 rule 8 (which relates to setting aside etc originating process) on application by a person on whom an originating process is served outside Australia. (2) Without limiting subrule (1), the Court may make an order under this rule on the ground: (a) that the service of the originating process is not authorised by these rules, or (b) that this Court is an inappropriate forum for the trial of the proceedings. 18 Part 11 rule 8 is in the following terms:- (1) The Court may, on application made by a defendant to any originating process on notice of motion filed within the time fixed by subrule (2), by order: (a) set aside the originating process, (b) set aside the service of the originating process on the defendant, (c) declare that the originating process has not been duly served on the defendant, (d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State, (e) discharge any order extending the validity for service of the originating process, (f) protect or release: (i) property seized, or threatened with seizure, in the proceedings, or (ii) property subject to an order restraining its disposition or disposal or in relation to which such an order is sought, (g) declare that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings, (h) decline in its discretion to exercise its jurisdiction in the proceedings, (i) grant such other relief as it thinks appropriate. (2) Notice of motion under subrule (1): (a) may be filed without entering an appearance, (b) shall bear a note "The defendant's address for service is" and state the address, (c) shall be filed within the time limited for entering an appearance. (3) The making of an application under subrule (1) shall not be treated as a voluntary submission to the jurisdiction of the Court. 19 These provisions confer upon the court a range of discretionary powers (including the power to grant a stay). Save for the reference to "an inappropriate forum" in rule 6A, the rules do not express any criteria for the exercise of the powers. Where no criteria is expressed, in the exercise of a discretionary power, the court must look to the relevant circumstances of the particular case before it. 20 A reading of the rules could lead the court to the view that the exercise of the powers was untrammelled. In such circumstances, the task for the court is to do that which best serves the interests of justice between the parties. The applicant bears the onus of satisfying the court of an entitlement to relief. 21 In dealing with jurisdictional applications for the stay of process in general, decisions of the High Court (including Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538) have established that the test to be applied is whether the court is a clearly inappropriate forum. 22 In the present case, a relevant question is the extent to which this test may be said to intrude upon the exercise of the discretionary power pursuant to the rules. 23 In Hyde v Agar (1998) 45 NSWLR 487 at p 510 it was said by the Court of Appeal that care needs to be exercised lest the discretion under the rules is used to undermine the principles of forum non conveniens stated in Voth. In Hyde, the court was concerned with Part 10 rule 6A. 24 In Hyde at p 510, the Court of Appeal further said:- This judicial power to decline the exercise of jurisdiction offers a principled and non-discriminatory basis for segregating appropriate and inappropriate cases for litigation in the forum. Implicit in what we have said, is the conclusion that r 6A picks up the principles of forum non conveniens as they are enunciated from time to time in Australian law. This requires fidelity to Voth and not Spiliada where there is inconsistency. We do not agree with the suggestion to the contrary of Rogers CJ Comm D in Pendal Nominees Pty Ltd v M & A Investments Pty Ltd (1989) NSWLR 383 at 396-397. 25 The question again came before the High Court in Regie National des Usines Renault SA v Zhang (2002) 76 ALJR 551. The majority expressed the view that the onus borne by the applicant was to show that New South Wales was a clearly inappropriate forum, in that it would be productive of injustice, because it would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of being productive of serious and unjustified trouble and harassment. 26 There does not seem to be any dispute between the parties, that the defendants bear such onus in this case. 27 Before proceeding further, I should mention that the material relied on by the plaintiff foreshadows the possibility of an additional claim being made by her. She suffers from a serious kidney condition. Following the trauma of the incident, she was treated with Voltarin in the United Kingdom. Mr Wells is presently investigating the possibility that the trauma of the incident, which saw her being treated with Voltarin, led to her developing the kidney condition. At this stage, he has not come upon any medical evidence to support the potential claim. 28 The material contained in the affidavits relied on by the defendants has not been challenged by way of cross-examination. Largely, it is unchallenged by the contents of the affidavit sworn by Mr Wells. However, in dealing with that material, counsel for the plaintiff has argued, inter alia, that much of it is conjecture. 29 Whilst I have had regard to all of that material, I propose to merely expressly refer to some of what is said. 30 The material estimates a trial of about two weeks. It deposes to the likelihood of many residents in the United Kingdom having to give evidence at the trial. It deposes to various consequences that may befall the defendants, should the matter proceed in New South Wales. It deposes also to consequences in the event that there are cross-claims between the defendants. It deposes to the loss of indemnity by the first defendant. Stress is placed on the difficulties that will be experienced by all defendants if the proceedings are allowed to continue in New South Wales. 31 It needs to be borne in mind that the proceedings are presently at a very early stage. The issues are yet to be defined. Interlocutory processes are yet to be explored. The parties are not really in a position to speak reliably as to matters such as the length of any trial and the witnesses that will have to be called. 32 In these circumstances, it seems to me that much of what has been said in the affidavits does lie very much in the area of conjecture. 33 For example, it appears that there was an eyewitness to the incident (Helen Tonkin). She is no longer an employee of the first defendant and she cannot be compelled to give evidence in proceedings before an Australian court. 34 Although the material asserts that she will be an essential witness, it seems to me that it remains a matter of conjecture as to whether or not the first defendants may want to call Ms Tonkin to give evidence. The material does not suggest that any statement has been obtained from her. What evidence she may be able to give may not be known to the first defendants. Indeed, it may not be helpful to their case. 35 What appears from that which is before the court suggests that the plaintiff's claim may be a relatively modest one which does not throw up complex issues. It appears that it has been brought in this court because the District Court lacks the jurisdiction to entertain it. 36 There is a significant jurisdictional nexus with the United Kingdom. I shall expressly refer to certain matters. It is the place of residence of all the defendants. It is where each of them conducts their affairs. All defendants may be regarded as employed in the conduct of a profession. Both the incident and the subsequent medical treatment took place in the United Kingdom. It can be expected that there may be relevant witnesses who reside there. 37 As has been earlier said, who may be required to give evidence is at this stage largely a matter of conjecture. The evidence that will be required to be given by the parties may well depend on matters of case management and the utilisation of interlocutory processes (inter alia, it may be possible to place a significant reliance on witness statements). The use of a video link may solve problems. In saying that, the court bears in mind the expense of the use of that facility and of its shortcomings. At this stage, it is uncertain as to whether any of these shortcomings may be of significance. 38 The first defendants had taken out indemnity insurance which only extended cover in respect of proceedings in the United Kingdom. The insurer has declined to indemnify them in respect of the proceedings brought in this state. The court has been told that they will have no insurance cover if the present proceedings are allowed to continue. This is a state of affairs that arises because the first defendants have chosen to take out such limited cover. 39 Although there has been argument founded on the possibility of cross-claims, it seems that the bringing of cross-claims in the circumstances of this case would appear to be unlikely. What is alleged by the plaintiff involves separate torts. 40 It has also been said that the court would benefit from a view. In my experience, views are relatively rare in personal injury cases. Usually, it is sufficient for the court to have photographs. I do not consider that the material makes out the need for a view. 41 Whilst there is a significant nexus with the United Kingdom, there is a relatively slender nexus with the state of New South Wales. Be that as it may, the question the court must address in this case is not one in which the exercise is to choose the more appropriate forum. The defendants must demonstrate that the forum chosen by the plaintiff is clearly inappropriate. This court is well accustomed to dealing with claims in tort which have been committed overseas and require the application of the law of another country. 42 If the stay sought by the defendants was granted, the plaintiff would be presently unable to prosecute her claims in the United Kingdom. The relevant limitation period has expired and she would require an extension of time. 43 Although the second and third defendants are prepared to consent to an extension of time, the first defendants do not offer such consent. It can be expected that the insurer of the first defendants may oppose any such application. 44 It is said that the court should grant a temporary stay pending the making of extension applications by the plaintiff in the United Kingdom. 45 I am not persuaded that this is an approach that should be adopted by the court. It would see, inter alia, the plaintiff being put to expense and delay. Further, at least the application brought as against the first defendants may not be successful. 46 In my view, when regard is had to the relevant circumstances of this case, I am not satisfied that the defendants have discharged the onus respectively borne by them. 47 I may add that the impression given by the material is that this relatively modest case is one in which the interests of all parties may be best served by immediate attention to the prospects of settlement. 48 The notices of motion are dismissed. The costs of the notices of motion are to be borne by the defendants. The exhibits may be returned. ********** Last Modified: 12/17/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.