Supreme Court New South Wales Medium Neutral Citation: Hargood v OHTL Public Company Ltd [2015] NSWSC 446 Hearing dates: 8 December 2014 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Common Law Before: Davies J Decision: (1) The Defendants' Notice of Motion filed 15 September 2014 is dismissed. (2) The Defendant is to pay the Plaintiff's costs of the Motion. (3) Give leave to the Plaintiff to discontinue the proceedings against the Second and Third Defendants; (4) The Plaintiff is to file an Amended Statement of Claim within 14 days omitting reference to the cause of action contained in paragraphs 27 to 30 of the Statement of Claim; (5) The Plaintiff is to pay the Defendant's costs thrown away by reason of the filing of the Amended Statement of Claim. Catchwords: CONTRACT – Plaintiff injured in Thailand – hotel alleged to be negligent – whether contract with hotel made at time of reservation or check-in - foreign jurisdiction clause contained in Guest Registration form signed on check-in – whether clause incorporated into the contract PRIVATE INTERNATIONAL LAW – stay of proceedings – foreign jurisdiction clause – whether New South Wales was an inappropriate forum – considerations – whether Defendant discharged onus Legislation Cited: Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Murakami v Wiryadi [2010] NSWCA 7; (2001) 268 ALR 377 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) [2008] HCA 54; (2008) 238 CLR 265 Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Category: Procedural and other rulings Parties: Jane Louise Hargood (Plaintiff) OHTL Public Company Ltd (First Defendant) Mandarin Oriental Hotel Group Limited (Second Defendant) Mandarin Oriental International Limited (Third Defendant) Representation: Counsel: R J Cheney SC & H Chiu (Plaintiff) G J Nell SC & C O Gleeson (Defendants) Solicitors: W.G. McNally Jones Staff (Plaintiff) Baker & McKenzie (Defendants) File Number(s): 2014/176760 Judgment 1. The Plaintiff was injured on 17 June 2013 at the Mandarin Oriental Hotel in Bangkok. She was attending a Thai cooking class conducted by the Hotel. She was in the process of washing her hands, at the invitation of those conducting the class, when the floorboards on which she was standing gave way beneath her. She injured her right shoulder in an attempt to save herself from falling. 2. On 13 June 2014 she commenced proceedings against three companies which are said to be the owners, operators and managers of the Hotel. The proceedings were served on the Defendant in Thailand and Hong Kong. 3. By a Notice of Motion filed 15 September 2014 the Defendants seek orders pursuant to Rules 11.7 and 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) that the proceedings against the Defendants be stayed on the basis that this Court is an inappropriate forum for the trial of the Plaintiff's claim, alternatively, that no reasonable cause of action is disclosed against those Defendants. 4. The Plaintiff now accepts that the only appropriate defendant is the First Defendant. She wishes to discontinue against the Second and Third Defendants, and all the Defendants consent to that course. 5. Rule 11.7 UCPR provides: 11.7 Setting aside originating process served outside Australia (1) The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia. (2) Without limiting subrule (1), the Supreme Court may make an order under this rule: (a) on the ground that the service of the originating process is not authorised by these rules, or (b) on the ground that the court is an inappropriate forum for the trial of the proceedings. 1. Rule 12.11 UCPR provides: 12.11 Setting aside originating process etc (1) In any proceedings, the court may make any of the following orders on the application of a defendant: (a) an order setting aside the originating process, (b) an order setting aside the service of the originating process on the defendant, … (g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings, (h) an order declining to exercise jurisdiction in the proceedings, 1. (i) an order granting such other relief as the court thinks appropriate. (2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. (3) Notice of motion under subrule (2): 1. (a) may be filed without entering an appearance, and (b) must bear a note stating the applicant's address for service. (4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court. 1. The cause of action pleaded against the First Defendant (now referred to as "the Defendant") is principally a simple claim in negligence with an alternative claim being breach of an implied term of an agreement involving the Plaintiff attending cooking classes conducted by the Defendant at the Hotel. However, the Plaintiff said that she will not now pursue the contract claim. 2. So that the claim can be understood the particulars of negligence pleaded are these: (a) Failure to construct, or require the construction of, the wooden deck with suitable material for exposure to weather and water from the wash basin. (b) Failure to construct, or require the construction of, appropriate shelter to avoid exposure of the wooden deck to weather. (c) Failure to locate the wash basin in another part of the building not adjacent to a wooden deck that was susceptible to damage from water and from weather. (d) Failure to conduct regular testing or inspection of the floor boards in the wooden deck for damage and wear and tear. (e) Failure to replace worn or damaged floor boards in the wooden deck. (f) Failure to provide at all times safe premises for paying attendees of the cooking class. 1. The principal basis for the application for the stay is a Guest Registration Form (GRF) signed by the Plaintiff when she checked into the hotel. In a section in the document headed "Terms and Conditions" the following appeared: Local Legislation In consideration for accepting my reservation and providing me with accommodation and/or Hotel services, I agree that any dispute or claim, that arises out of or is related to such accommodation and/or services shall be subject to the law of Thailand and the exclusive jurisdiction of the courts of Thailand. 1. The Plaintiff agrees that she signed such a form but said that when she did so it was in the early hours of the morning, she had been awake for about 22 hours, she did not know of those Terms and Conditions on the document and thought that the purpose of signing the form was to provide personal and financial details, and an agreement to accept the charges for the room during the stay. She said that it was not drawn to her attention that she was signing anything else nor that her legal rights might be affected by signing the document. 2. The three principal issues for determination are these: (1) Whether the exclusive jurisdiction clause in the GRF formed part of the contract between the Plaintiff and the Defendant; (2) If it did, whether a stay should be granted on the present proceedings; (3) If it did not, whether this Court is an inappropriate forum for the determination of the claim. The exclusive jurisdiction clause 1. In order to determine if this clause formed part of the contract between the Plaintiff and the Defendant it is necessary first to determine when the contract between them was made. The Plaintiff submitted that it was made at the time the booking reservation was made. The Defendant submitted that the booking reservation simply amounted to an offer by the Defendant that was open to be accepted by the Plaintiff arriving at the Hotel and checking in. The Defendant submitted in the alternative that the completion of the GRF amounted to a collateral contract entered into with the hotel at arrival. 2. On 3 June 2013 an email was received from the Mandarin Oriental Bangkok addressed to the travel agent acting for the Plaintiff and her family. It relevantly read: We are pleased to confirm their reservation as stated below. There was then a picture of the Hotel with the words "Your confirmation at Mandarin Oriental" written at the top. Underneath the picture the email relevantly said this: Dear Ms Karrin Thank you for selecting Mandarin Oriental for your valued guests (sic) stay in Bangkok. We are pleased to confirm your reservation as stated below and remain. Yours sincerely, … Reservation details GUEST NAME Mr Gordon Geraghty Dr Jane Hargood Mrs Katrina Hodgkisson Mstr. Dylan Hodgkisson RESERVATION NUMBER 57X0D9 ARRIVAL DATE 13 June 2013 To guaranteed immediate early check-in. 1. There were then set out the arrival and departure details, the number of guests, the room type and the daily rate. On the right hand side the following appeared: GUARANTEED BY The given Amex Credit Card last four digits 2009 Expiry 11/2015 CANCELLATIONS Should your travel plans change, kindly inform us 24 hours prior to the day of arrival by 6pm ICT in order to avoid a one night cancellation fee. The same condition will also be applied for any no show on the arrival date. 1. The document then went on to say: About Suite Temptations The above rate is per room per night, a minimum four night consecutive stay is required, subject to 17.7% service charge and applicable tax, quoted and settled in Thai Bhat currency, inclusive of the following benefits; * Personal Butler Service * Complimentary 1 Night Stay for Every 3 paying consecutive nights * Daily continental breakfast for 3 people at the Verandah restaurant * A Spa Gift Voucher valued THB 600 net. Arrive in Style We are delighted to confirm our fast track service at the airport. We will have you greeted at the arrival gate, taken by buggy to the immigration fast track, collect your luggage and then whisk you to your waiting limousine, ensuring your arrival is smooth, stress free and speedy. The fast track service from the gate to the arrival hall is confirmed at the rate of THB 1250 per person exclusive of 17.7% service charge and the applicable tax, 2 years old (sic) child travelling with parents at free of charge. Airport Transfer We are delighted to confirm a chauffeur driven Volkswagen van for collection from and to the airport at the rate of THB 3,500.00 net per van per journey. 1. The Plaintiff and her family arrived at the hotel at 1:10am on 13 June 2013. She there filled out the GRF. The first section of the GRF was preceded by these words: "The following information is required in order to process your arrival". The GRF already contained information about the flights, the arrival and departure times and matters pertaining to the room. Although the room rate was shown as zero that was because it appeared on Mr Geraghty's GRF at the rate which appeared in the reservation. 2. The only matters added to the Plaintiff's GRF in handwriting were the Plaintiff's post office box address, her date of birth and passport number. 3. The next section of the GRF was preceded by the words: "The following voluntary information will help us to better understand and serve your needs". Nothing was filled in although this section had been completed on Mr Geraghty's GRF before arrival. 4. Underneath that section of the GRF the following appeared: Terms and Conditions Data privacy and protection … Local legislation In consideration for accepting my reservation and providing me with accommodation and/or Hotel services, I agree that any dispute or claim, that arises out of or is related to such accommodation and/or services shall be subject to the law of Thailand and the exclusive jurisdiction of the courts of Thailand. 1. There was then a statement that the Hotel would not be responsible for valuables left by guests in their room with a note that a safety deposit box was available in the room or from the cashier desk. The GRF concluded by saying: I authorise all Hotel charges for my stay to be charged to my credit card specified above. In fact, no credit card was specified although that might have been because the Plaintiff's husband's American Express was specified on his GRF. 1. The Defendant submitted that the booking made by the Plaintiff's travel agent would be insufficient to give rise to a binding contract with the Plaintiff at the time of the reservation. Further, it could not be concluded that the booking at that time resulted in the terms of the contract between the Plaintiff and the Hotel being concluded. That was especially so where the whole of the cost of the accommodation and services were paid at checkout and there was no evidence of a deposit or other monies paid at the time of the booking. 2. The First Defendant submitted, in the alternative, that if a contract was concluded at the time of the booking, by signing the GRF the Plaintiff had agreed to a collateral contract or a variation of the original contract that provided for additional terms and conditions relevant to the Plaintiff's stay at the Hotel. Those additional terms and conditions included the exclusive jurisdiction clause. 3. Where the contract was made and what its terms were must be determined by the lex fori or what Brennan J referred to as the municipal law in Oceanic Sun Line Special Shipping Company Inc v Fay [(1988) 165 CLR 197 at 225; see also Deane J at 255. 4. In my opinion, the contract was made at the time the reservation was made and not at the time of check-in at the hotel. The parties had agreed in the reservation to all the necessary terms of the contract including the dates on which the rooms were reserved and the cost of the rooms. Significantly, the reservation of the rooms was guaranteed by the American Express card. The result of that was that if the Plaintiff did not inform the Hotel 24 hours prior to the day of arrival by 6pm a cancellation fee of one night's accommodation would be charged. Although it was open to the Plaintiff and her party not to proceed with the reservation up to that 24 hour period, she was bound by the terms of the contract no later than that time. 5. Moreover, part of the arrangement stipulated in the reservation was the fast track service at the airport and the airport transfer. By the time the Plaintiff and her family arrived at the Hotel the contract had been partly performed by the Hotel in accordance with the terms in the reservation and the Plaintiff at that time was bound to pay not only for one night's accommodation but for the fast tracked service and the airport transfer. 6. The Defendant places some significance on the statement made by the Plaintiff in her affidavit that her understanding had always been that the purpose of the forms filled out at the time of check-in, that is, the GRF, was that it provided personal and financial details and an agreement to accept charges for the room during the stay. 7. Two things can be said about that. First, the Plaintiff's understanding or belief about these matters cannot be determinative of either the correctness of that belief or of when the contract was formed. Secondly, the expression "agreement to accept the charges for the room during the stay" is ambiguous because the room rate had already been agreed in the reservation and "the charges for the room during the stay" could refer to other charges such as the use of the minibar or other additional features. 8. However, even if "the charges" referred to the room rate, the fact that the hotel requires an incoming guest to sign that the rate is agreed cannot alter the fact that the agreement, here, had been reached in the reservation made at an earlier time. When these charges were paid casts no light on when the contract was made. 9. The submission that there was a collateral contract or a variation of the contract originally made at the time of reservation must be rejected. There is no evidence of any consideration for either position, and the Defendant does not assert any such consideration. 10. The result is that the exclusive jurisdiction notation on the GRF is not a term of the contract between the parties. The motion must be decided on the basis of general principles associated with inappropriate forum. Clearly inappropriate forum 1. The Defendant submits that the Supreme Court of NSW is a clearly inappropriate forum for the determination of the Plaintiff's claim. It identifies the following matters as evidencing that it is a clearly inappropriate forum: (a) The residence of the parties to the litigation; (b) Place of the incident; (c) The number and location of likely witnesses; (d) The law governing the claim; (e) No prejudice from the financial position of the Plaintiff; (f) No juridical disadvantages; (g) The natural forum for the claim. 1. In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 the High Court held (at 564) that the principles to be applied in applications for a stay on inappropriate forum grounds are those stated by Deane J in Oceanic Sun Line Special Shipping Company Inc at 247-248. In that passage, Deane J said this: That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff. Otherwise, that onus will ordinarily be discharged by a defendant who applies promptly for a stay or dismissal if he persuades the local court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, it is a clearly inappropriate forum for the determination of the dispute between the parties. The reason why that is so is that, once it is accepted that the adjectives "oppressive" and "vexatious" are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them, the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff (cf. Spiliada Maritime Corp. v. Cansulex Ltd. (1987) 1 AC 460, at p 478), be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country. Admittedly, that approach to the "vexatious" and "oppressive" test is less stringent and less rigid than would have been accepted in the nineteenth century. Under it, the applicable test pursuant to traditional principles can, in the ordinary case, properly be seen as an "inappropriate forum" test. It cannot, however, properly be seen as a "more appropriate forum" test since the mere fact that a tribunal in some other country would be a more appropriate forum for the particular proceedings does not necessarily mean that the local court is a clearly inappropriate one. 1. The majority judgment in Voth discussed the various judgments in Oceanic Sun. The majority first stated briefly what was regarded as common ground between those judgments as follows (at 554): First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, 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 and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised "with great care" or "extreme caution". 1. The joint judgment also said this (at 558): The "clearly inappropriate forum" test is similar and, for that reason, is likely to yield the same result as the "more appropriate forum" test in the majority of cases. The difference between the two tests will be of critical significance only in those cases - probably rare - in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum. 1. Finally, as to the way these matters should be resolved, the joint judgment said this (at 565): As regards both kinds of application and subject to one qualification, we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada (at p 465), namely, that the primary judge should "be allowed to study the evidence and refresh" his or her memory of the relevant law "in the quiet (of his or her Chambers) without expense to the parties"; that he or she should not be burdened by unhelpful reference to other decisions on other facts; and "that submissions will be measured in hours and not days". The qualification is that we think that, in the ordinary case, counsel should be able to furnish the primary judge with any necessary assistance by a short, written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. "clearly inappropriate forum") grounds. 1. In Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 the majority judgment was considering the earlier equivalent of r 11.7 (being Pt 10 r 6A Supreme Court Rules 1970 (NSW)) that made identical provision for the Court to make an order on the ground "for this Court is an inappropriate forum for the trial of the proceedings". The joint judgment said: [24] The expression "inappropriate forum" in par (b) of Pt 10, r 6A(2) is less emphatic than the expression "clearly inappropriate forum", the latter being the term adopted in Voth to determine whether an Australian court should decline to exercise its jurisdiction. The formulation in Voth, as Spigelman CJ pointed out in James Hardie Industries Pty Ltd v Grigor, was adopted in preference to the "clearly more appropriate forum" test favoured in the United Kingdom. Thus, it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate. [25] Because a court's power to stay proceedings is an aspect of its inherent or implied power to prevent its own processes being used to bring about injustice, the same concepts and considerations necessarily inform the test of "inappropriate forum" in par (b) of Pt 10, r 6A(2) as inform the "clearly inappropriate forum" test adopted in Voth. And because the ultimate consideration is the prevention of injustice, they inform it in the same way. Thus, it is appropriate to note what was said by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry. Their Honours said: "In [Voth], this Court confirmed its rejection, in [Oceanic Sun], of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd. The Spiliada principle allows that a court may stay proceedings which are pending before it if that court is not the natural forum and there is another available forum which is clearly or distinctly more appropriate. The result is that, in the United Kingdom, a stay will be granted in favour of a clearly more appropriate forum or, which is much the same thing in practice, the natural forum, that being the forum 'with which the action [has] the most real and substantial connection'. ... In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of 'seriously and unfairly burdensome, prejudicial or damaging', or, vexatious, in the sense of 'productive of serious and unjustified trouble and harassment'. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, 'the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance'. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being 'where the case may be tried "suitably for the interests of all the parties and for the ends of justice"'." 1. The onus is on the Plaintiff to seek the stay and it is necessary for it to demonstrate that a trial in New South Wales would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment: Regie v Zhang at [78]; Voth at 564-565. 2. It is now necessary to consider the matters which are said by the Defendant to be significant matters for determining that this Court is an inappropriate forum. (a) The residence of the parties to the litigation (c) The number and location of likely witnesses 1. It is convenient to deal with these matters together. 2. The Defendant is a corporation. It is registered in Thailand. Clearly enough, evidence adduced on its behalf is documentary evidence and/or evidence of natural persons. 3. In his affidavit of 3 October 2014 the Defendant's solicitor has identified six persons who may be called to give evidence on behalf of the Defendant. Only one of those persons was said to have witnessed the accident, Mr Narain Kiattiyocharoen who was a Thai cooking school instructor. Those three witnesses were also listed on a report made by the Assistant Development Centre Manager to the hotel manager by an email of 1 July 2013. Two other persons referred to in that email were said to have witnessed the accident and confirmed that the Plaintiff did not fall or have her foot caught in the hole. Neither of those persons is listed by the Defendant's solicitor as a witness. 4. The three other people mentioned by him comprised two engineers who inspected the floor afterwards and a house keeper who also saw the damaged floor afterwards. 5. There will no doubt be some inconvenience involved in those persons giving evidence, given that they reside in Thailand. That is an inconvenience of less significance than was formerly the case. Giving evidence by audio visual link is relatively common and relatively easy to organise if that is the course that the parties prepare. 6. In former days it was often objected that where the credit of a witness was being challenged it was neither convenient nor appropriate for evidence to be given other than in the courtroom. Whilst demeanour of witnesses cannot be discounted Judges are now familiar with research showing the dangers of relying on demeanour, and appeal courts have stressed the significance of other matters more likely to prove reliable in judging the credit of witnesses. Contemporaneous material including prior statements are better matters to test a witness's evidence against than reliance on demeanour alone. In any event, any disadvantage in relation to testing the credit of these witnesses is likely to be that of the Plaintiff who seeks that the present proceedings remain in this jurisdiction. 7. It may nevertheless be accepted that the domicile of these witnesses is a significant matter to take into account. 8. On the other hand, the Plaintiff, her daughter and her husband who are likely all to give evidence, reside in Sydney. Doctors the Plaintiff has consulted and expert witnesses in relation to economic loss will also be domiciled in New South Wales. (b) Place of the incident 1. The fact that the incident took place in Thailand is of some significance. However, for this type of personal injuries action, it is highly unlikely that a view would be needed of the site because there is nothing especially complex about where the accident happened. As with most accidents it could be expected that, if it was necessary to look at the site, photographs would suffice. (d) The law governing the claim 1. The Plaintiff's claim is in tort. Accordingly, the law governing the claim is the law of the place of the tort. Although the Plaintiff in the present Statement of Claim pleads in the alternative a breach of an implied term of a contract, Senior Counsel for the Plaintiff said that in any amended Statement of Claim filed that alternative claim will be discontinued. 2. In Regie the joint judgment said at [81] that an Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply in the forum require its courts to apply foreign law as the lex causae. In Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) [2008] HCA 54; (2008) 238 CLR 265 the joint judgment of French CJ, Gummow, Haynes and Kiefel JJ said at [31]: If the tort which Mrs Puttick alleges Tenon committed against her late husband was shown not to be a foreign tort, Tenon's claim to a stay of proceedings would have been greatly weakened. But it by no means follows that showing that the tort which is alleged is, or may be, governed by a law other than the law of the forum demonstrates that the chosen forum is clearly inappropriate to try the action. The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction. … 1. It may be accepted, however, that the fact that the Court would apply foreign law is a factor of some significance which must be taken into account in determining whether New South Wales is a clearly inappropriate forum: Murakami v Wiryadi [2010] NSWCA 7; (2001) 268 ALR 377 at [150]. 2. The Defendant has led no evidence, and the onus is on the Defendant in seeking the stay, to show there is any particularly complicated aspect to Thai law in relation to negligence or that it differs in a significant way from the law of Australia or that there are concepts novel to Australian law in relation to it. (e) The financial position of the parties 1. This is a matter of some small significance. It may be accepted that the Plaintiff is not a litigant with few means. The whole thrust of her economic loss case demonstrates that fact. However, it would undoubtedly be a far more expensive exercise for these proceedings to be conducted in a foreign country where the Plaintiff would be required to travel with her family and not have access to her professional practice for that period of time. It is not suggested that litigating the proceedings in New South Wales would be a financial hardship on the Defendant. (f) Juridical disadvantage 1. The proceedings are out of time for being brought in Thailand. However, the Defendant has said that no point will be taken concerning the time of bringing such a claim in circumstances where the Defendant has led evidence that the proceedings would not be dismissed on a time basis where the limitation period is not raised as a defence. In that way, the time of bringing the proceedings is not a juridical disadvantage from proceedings brought in Thailand. 2. In my opinion, a significant juridical disadvantage is that the proceedings in a Thai court will be conducted in the Thai language with the result that there would need to be continuous interpretation provided to the Plaintiff. It may be accepted that there is some juridical disadvantage to the Defendant because proceedings would be conducted in English in New South Wales. However, the Defendant is a corporation, the persons most affected by the use of English in the proceedings in New South Wales would be Thai witnesses, and the Defendant has engaged Australian lawyers to represent them in any event. In that way, the conduct of the proceedings in New South Wales would be a minor juridical disadvantage to the Defendant. Is this court an inappropriate forum? 1. The Defendant submitted that Thailand is the natural forum for the determination of the Plaintiff's claim. The Defendant suggests that the only connecting factors to the present jurisdiction are the residence of the Plaintiff, the location of one witness on the question of liability and two witnesses on the question of damage, and the fact that part of the loss and damage was suffered in New South Wales. The Defendant suggested that none of these factors produce any compelling reason why the Plaintiff's claim should not be heard in Thailand. However, that is not the correct test. The correct test is whether this Court is an inappropriate forum. 2. In my opinion the Defendant has not discharged the onus of showing that this Court is an inappropriate forum. The Defendant does not show that a trial in New South Wales would be productive of injustice to it, nor that it would be seriously and unfairly burdensome, prejudicial or damaging to it. At best, there would be a measure of inconvenience by the need to the have the Defendant's witnesses either come to Australia to give evidence or to give evidence through an Audio Visual Link. That fact, and the fact that this Court would need to decide a matter according to Thai law, are simply not sufficient to demonstrate that this Court is an inappropriate forum. It will also be apparent from the above discussion that there are certain positive reasons why this Court is an appropriate one to hear the proceedings. Conclusion 1. I make the following orders: (1) The Defendants' Notice of Motion filed 15 September 2014 is dismissed. (2) The Defendant is to pay the Plaintiff's costs of the Motion. (3) Give leave to the Plaintiff to discontinue the proceedings against the Second and Third Defendants; (4) The Plaintiff is to file an Amended Statement of Claim within 14 days omitting reference to the cause of action contained in paragraphs 27 to 30 of the Statement of Claim; (5) The Plaintiff is to pay the Defendant's costs thrown away by reason of the filing of the Amended Statement of Claim. ********** 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. Decision last updated: 24 April 2015