Supreme Court New South Wales Medium Neutral Citation: Scrivener v Raffles Medical Group Limited [2015] NSWSC 874 Hearing dates: 14 April 2015 Decision date: 03 July 2015 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to Rule 12.11(1) of the Uniform Civil Procedure Rules 2005 (NSW), the statement of claim filed on 28 July 2014 is set aside. (2) The plaintiff must pay the costs of the defendant of the proceedings before me. Catchwords: PRACTICE AND PROCEDURE – claim in negligence and breach of contract against defendant in Singapore – whether statement of claim should be set aside – whether Supreme Court of New South Wales is a clearly inappropriate forum for determination of the dispute – whether proceedings fall within schedule 6 of the Uniform Civil Procedure Rules 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Limitation Act (Cap 163, 1996 Rev Ed), s 24A(2) Uniform Civil Procedure Rules 2005 (NSW), rr 11.2, 12.11(1), Sch 6 Cases Cited: Bolitho v City & Hackney Health Authority (1998) AC 232 Murakami v Wiryadi & Ors [2006] NSWCA 7 Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; 165 CLR 197 Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 Category: Procedural and other rulings Parties: Ian Charles Scrivener (Plaintiff/Respondent) Raffles Medical Group Limited (Defendant/Applicant) Representation: Counsel: H Marshall SC (Plaintiff/Respondent) N E Chen (Defendant/Applicant) Solicitors: Beilby Poulden Costello Lawyers (Plaintiff/Respondent) HWL Ebsworth Lawyers (Defendant/Applicant) File Number(s): 2014/221370 Judgment Introduction 1. The plaintiff, Mr Ian Scrivener, filed a statement of claim in this Court on 28 July 2014. Raffles Medical Group is named therein as the defendant. In a nutshell, the plaintiff sues the defendant for breach of contract and for the tort of negligence. An affidavit of the solicitor for the plaintiff of 20 November 2014 shows that the solicitor purported to serve the defendant with that statement of claim (and other documents) by way of the sending of an airmail letter of 28 July 2014 to the General Manager of the defendant in Singapore. 2. In response, and without having entered a formal appearance, the defendant moved on a notice of motion filed on 4 September 2014. The principal relief sought was the setting aside of the statement of claim. By the end of the hearing before me, counsel for the defendant had made it clear that that relief was sought on three bases. 3. First, it was said that, in all of the circumstances of this case, the Supreme Court of New South Wales is a clearly inappropriate forum for the determination of the dispute between the plaintiff and the defendant. Reliance was placed on r 12.11(1) of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules). 4. Secondly, it was said that the plaintiff is incapable of demonstrating that the proceedings comply with the requirements of r 11.2 and Sch 6 of the Rules. The result of that was said to be that the plaintiff was not entitled to serve the statement of claim upon the defendant in Singapore. 5. Thirdly, it was said that, on the evidence before, the claim is doomed to failure in any event, and should be struck out. That was said to be because the plaintiff is incapable of demonstrating that the defendant was vicariously liable, according to the law of Singapore, for the allegedly wrongful actions of various doctors by whom the plaintiff asserts he was treated in Singapore. 6. Senior counsel for the plaintiff resisted those submissions. In the alternative, he indicated that, if I came to the view that the submissions with regard to Sch 6 of the Rules were determinative and adverse to his client, the portion of the claim that asserts breach of contract should be regarded by me as being contingently withdrawn. 7. Before turning to discuss those three areas of dispute between the parties, I shall first set out the background to the matter in a little more detail. Background 1. The defendant, a company incorporated in Singapore, operates a hospital in that country known as "Raffles Hospital". 2. The following paragraphs reflect assertions contained in the statement of claim of the plaintiff. 3. On 6 January 2011, the plaintiff was in Singapore. He attended a hospital complaining of abdominal pain, vomiting, flatulence and dyspepsia (commonly known as indigestion). 4. The plaintiff was seen by Dr Tan Yeow Meng. Dr Meng prescribed the plaintiff antibiotics, and discharged him from the hospital without further instructions. 5. Three days later, on 9 January 2011, the plaintiff attended the hospital again. By that time he was complaining of high fever, severe abdominal pain, vomiting, and profuse diarrhoea. 6. The plaintiff was seen by Dr Ngai-Moh Law. Dr Law arranged for the plaintiff to be admitted for observation. 7. On 13 January 2011, the plaintiff was taken to an operating theatre, where Dr Ng Chin performed an open appendectomy. 8. The plaintiff asserts that various failings occurred in his medical treatment between the time of his admission and his eventual diagnosis with ruptured acute appendicitis and suspected hepatic abscess. 9. The plaintiff also claims that, since his medical treatment was mishandled in Singapore, he has suffered injury, loss and damage as a result of that treatment. 10. As I have said, the plaintiff advances two causes of action in his statement of claim. The first, in contract, alleges that the services to be performed by the defendant, pursuant to a contract between itself and the plaintiff, were required to be delivered with due and proper care and skill. He asserts that they were not so delivered, giving rise to a breach of contract. 11. The second, in tort, alleges that the defendant owed a duty to the plaintiff to exercise due and proper care and skill in the provision of care, treatment and advice to him. The plaintiff asserts that the defendant breached that duty, and thereby caused damage to him, giving rise to the commission of the tort of negligence on the part of the defendant. 12. As a result of the failings that are to be characterised as breach of contract or negligence on the part of the defendant, the plaintiff claims that he has suffered, and continues to suffer, injury, loss and damage. The loss is not limited to physical injury or pain: it includes a claim founded on the proposition that the plaintiff could not run his business in Singapore as a result of his medical condition. 13. The defendant has not filed a defence, no doubt on the basis that it has not formally entered an appearance in this Court. The hearing of the motion 1. As the moving party on the motion, the defendant filed a large amount of material. That included an affidavit of Praveen Nair of 27 February 2015, with exhibits PN-1 to PN-7 attached; a legal opinion from Mr K Anparasan of 10 February 2015, with annexures; a supplementary legal opinion of Mr Anparasan of 5 March 2014, with annexures; and a letter from Mr Anparasan of 30 March 2015. 2. In response, the plaintiff filed evidence on the motion as well. It included a report of Dr Vinen, specialist in emergency medicine, of 8 December 2013; a report of Dr Oldtree Clark, forensic psychiatrist, of 2 April 2014; a report of Professor Morris, surgeon, of 30 June 2014; a report of Mr Lance Kahler, forensic accountant, of 1 July 2014; and an affidavit of the plaintiff of 28 October 2014. 3. No witness was cross-examined before me on his or her affidavit evidence. 4. I shall detail the contents of all of that material, to the extent necessary, when I come to summarise the submissions of the parties on the motion. 5. Finally, each counsel provided me with very helpful written and oral submissions. Clearly inappropriate forum 1. It is convenient to deal with this contention of the defendant first. And as there was no dispute between the parties that it is incumbent upon the defendant to show that the Supreme Court of New South Wales is a clearly inappropriate forum for the determination of the substantive dispute, I shall first recount its submissions in support of that proposition. Submissions of the defendant 1. As I have said, this contention was founded upon r 12.11(1) of the Rules. That rule is as follows: 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, (c) an order declaring that the originating process has not been duly served on the defendant, … (h) an order declining to exercise jurisdiction in the proceedings, (i) an order granting such other relief as the court thinks appropriate. … 1. The defendant submitted that the proceedings should be stayed because the Supreme Court of New South Wales is a clearly inappropriate forum. Although counsel was ready to make submissions tracing the development of legal principle in this area, his concise submission was that the law of New South Wales on this question is encapsulated in the judgment of Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32; (1988) 165 CLR 197. That is because the judgment of his Honour in that case was subsequently affirmed as a correct statement by a majority of the High Court in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 564. 2. In Oceanic Sun, Deane J said at 247-248: That power [that is, the power to set aside an originating process on the basis that it has been filed in a clearly inappropriate forum] 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. It was submitted that the test as illuminated above was made out, on the following bases. 2. First, the plaintiff has a cause of action in Singapore, and is entitled to commence proceedings in the courts of that jurisdiction. There is undoubtedly available a legal system in Singapore that is ready, willing and able to determine this dispute. 3. Secondly, the substantive law that applies to the present claim (in both tort and in contract) is the law of Singapore, whether the claim be litigated there or in New South Wales. 4. Thirdly, the alleged acts and omissions giving rise to those causes of action (whether breach of contract or negligence) arose entirely in Singapore. 5. Fourthly, the case involves a number of legal aspects that add to the complexity, expense and uncertainty of the proceedings with regard to the proof and application of foreign law. To give an example, it was said that this Court would be required to interpret and apply the Limitation Act (Cap 163, 1996 Rev Ed) of Singapore, since the claim of the plaintiff is arguably time barred pursuant to s 24A(2) of that Act. 6. Fifthly, the requisite standard of professional practice and conduct of Singapore health professionals must differ from that imposed upon Australian doctors and nurses. And yet a judge sitting in Sydney will be required to sit in judgment not only upon the law of that nation but also upon the standards of care that are within a foreign country and a foreign culture. 7. Sixthly, broad questions of convenience support the grant of a stay. They are as follows. 8. The persons said to have committed the conduct giving rise to the claim are residents of Singapore. They will almost certainly be witnesses as to liability, and will be the subject of cross-examination that may be extensive. 9. Although it is true that the plaintiff has qualified a number of experts in Australia as to liability, they can readily give evidence in Singapore by video link. 10. Even if damages are in dispute, it is unlikely that any treating doctors or general practitioners of the plaintiff would need to be called and cross-examined; on the off-chance that they are required to give oral evidence, the same procedure can be adopted. 11. Seventhly and finally, counsel for the defendant gave an undertaking that, if the orders sought were made, no point would be taken founded upon the date of subsequent commencement of proceedings in Singapore for the purpose of any submission about the proceedings being time barred; the defendant would approach the matter on the basis that the operative date is the commencement of proceedings in New South Wales. 12. In short, I did not understand counsel for the defendant to be submitting that any particular fact is determinative, or even highly significant. Rather, I understood him to be submitting that it is the combined effect of all of the factors – the place of the alleged wrong; the law to be applied; the domicile of the defendant; the location of the central liability witnesses; the arrangements that can be made to accommodate the convenience of any witnesses in the case for the plaintiff; the foreign cultural, professional and social norms that must inform a determination of whether breach of contract or negligence has been established; and the absence of any tactical disadvantage to the plaintiff if he were called upon to recommence in Singapore – that would lead me to be satisfied that the Supreme Court of New South Wales is a clearly inappropriate forum. Submissions of the plaintiff 1. The plaintiff resisted that proposition. He accepted that it could perhaps be that, speaking generally, it would be more convenient for this litigation to be pursued and concluded in Singapore rather than New South Wales. But senior counsel for the plaintiff submitted that mere convenience is not the test for the refusal of jurisdiction by this Court. Not only must the defendant demonstrate that this Court is inappropriate, but clearly so – a high hurdle indeed, he submitted. 2. He accepted that it would be correct for me to understand the meaning of what is a clearly inappropriate forum by way of what Deane J has said, in light of the subsequent approval of the judgment of his Honour by the High Court in Voth. 3. Counsel submitted that there is nothing unusual about this Court applying, in appropriate cases, the law of a foreign jurisdiction. He noted cases in which that had been done with regard to the intricacies of Indonesian law (relating to constructive trusts) and French law (relating to consumer protection, as applicable in New Caledonia): see Murakami v Wiryadi & Ors [2006] NSWCA 7; and Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491. 4. He submitted that I would accept that Singaporean law shares a common English inheritance with that of Australia, and that it would not be overly burdensome or complicated for Australian solicitors, barristers, and judges to understand and apply Singaporean law in the New South Wales Supreme Court. 5. In terms of logistical and practical matters, he emphasised that two medical experts have already been qualified in support of the claim of the plaintiff. Both Dr Vinen and Dr Morris have given a report containing expert opinion evidence about liability, and one can expect that the cross-examination of each of them would need to be extensive as well. In other words, questions of logistical convenience are by no means all one way in favour of refusal of jurisdiction. 6. In short, the plaintiff emphasised that the question is not one of mere inconvenience. It is a test of manifest inappropriateness. That test, he submitted, had not been made out by the plaintiff. Determination 1. Applying what was said by Deane J to the evidence and submissions placed before me, I have made the evaluative judgment that the defendant has established that this Court would be a clearly inappropriate forum. 2. Turning briefly to the matters discussed by his Honour: I consider that this is a clear case; that the defendant has discharged the necessary onus; that it would be oppressive and vexatious to the defendant for the proceedings to continue in this Court as opposed to being commenced in Singapore; that the defendant has identified a foreign tribunal that is perfectly capable of resolving this dispute; and that the defendant has applied promptly for the relief sought. I have not construed the concepts of oppression and vexatiousness narrowly, and I have borne in mind that the mere fact that another tribunal is available is by no means determinative. 3. No particular factor is determinative or indeed of overwhelming significance. It is the concatenation of factors to which counsel for the defendant invited me that leads me to the view that continuation of the proceedings in this jurisdiction would be vexatious or oppressive. 4. Of all of the factors relied upon, I assess the most compelling as being that a judge of this Court would be required to apply, not only the law of a foreign country, but also the community and professional standards that apply to medical treatment that was delivered in a foreign country. That seems to me to be quintessentially a matter for a judge of the courts of Singapore, sitting as the tribunal of fact with regard to such standards, and not a matter for a judge of a court of New South Wales. 5. Of course, it is no my part of my finding that the plaintiff or his lawyers have behaved in a way that is deliberately or intentionally vexatious or oppressive. In accordance with the principles explained by Deane J, I have merely found that the proceedings, if they were to continue in this Court, would objectively have one or other of those characteristics. 6. For the foregoing reasons, I propose to make the order sought in the notice of motion of the defendant designed to give effect to the proposition that this Court is a clearly inappropriate forum for the determination of this dispute. Ancillary dispute – failure to comply with Sch 6 of the Rules 1. As against the possibility that I am wrong in my primary determination above, I turn to discuss briefly the first ancillary position of the defendant. Because my analysis is contingent, I can be briefer than I would be if it were determinative. 2. Rule 11.2 of the Rules is as follows: 11.2 Cases for service of originating process (1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6. (2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention. 1. That leads one to Sch 6 of the Rules, which is as follows: Schedule 6 Proceedings in respect of which originating process may be served outside Australia Originating process may be served outside Australia in relation to the following circumstances: (a) if the proceedings are founded on a cause of action arising in New South Wales, (b) if the proceedings are founded on a breach in New South Wales of a contract (wherever made), whether or not the breach is preceded or accompanied by a breach (wherever occurring) that renders impossible the performance of any part of the contract which ought to be performed in New South Wales, (c) if the subject-matter of the proceedings is a contract and the contract: (i) is made in New South Wales, or (ii) is made on behalf of the person to be served by or through an agent carrying on business or residing in New South Wales, or (iii) is governed by the law of New South Wales, or (iv) is one a breach of which was committed in New South Wales, (d) if the proceedings are founded on a tort committed in New South Wales, (e) if the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in New South Wales caused by a tortious act or omission wherever occurring, (f) if the proceedings are for contribution or indemnity in respect of a liability enforceable by proceedings in the court, (g) if the person to be served is domiciled or ordinarily resident in New South Wales, (h) if the proceedings are proceedings in respect of which the person to be served has submitted or agreed to submit to the jurisdiction of the court, (i) if the proceedings are properly commenced against a person served or to be served in New South Wales and the person to be served outside New South Wales is properly joined as a party to the proceedings, (j) if the subject-matter of the proceedings, so far as concerns the person to be served, is property in New South Wales, (k) if the proceedings are for the perpetuation of testimony relating to property in New South Wales, (l) if the proceedings concern the construction, effect or enforcement of an Imperial Act or Commonwealth Act, or a regulation or other instrument having or purporting to have effect under such an Act, affecting property in New South Wales, (m) if the proceedings are for the construction, rectification, setting aside or enforcement of a deed, will or other instrument or of a contract, obligation or liability, affecting property in New South Wales, (n) if the proceedings are for an injunction as to anything to be done in New South Wales or against the doing of any act in New South Wales, whether damages are also sought or not, (o) if the proceedings are for the administration of the estate of a person who dies domiciled in New South Wales, or are for relief which might be granted in proceedings for administration of such an estate, (p) if the proceedings are for the execution of trusts which are governed by the law of New South Wales, or are for relief which might be granted in proceedings for the execution of such trusts, (q) if the proceedings affect the person to be served in respect of his or her membership of a corporation incorporated in New South Wales, or of an association formed or carrying on any part of its affairs in New South Wales, (r) if the proceedings concern the construction, effect or enforcement of an Act or a regulation or other instrument having or purporting to have effect under an Act, (s) if the proceedings concern the effect or enforcement of an executive, ministerial or administrative act done or purporting to be done under an Act or regulation or other instrument having or purporting to have effect under an Act, (t) if the proceedings: (i) relate to an arbitration held in, or governed by the law of, New South Wales, or (ii) are commenced to enforce in New South Wales an arbitral award wherever made, or (iii) are for orders necessary or convenient for carrying into effect in New South Wales the whole or any part of an arbitral award wherever made, (u) if the proceedings are commenced to enforce in New South Wales a judgment wherever given, (v) if the proceedings are for relief relating to the custody, guardianship, protection or welfare of a minor, whether or not the minor is in New South Wales, which relief the court has, apart from service, jurisdiction to grant, (w) if the proceedings, so far as concerns the person to be served, fall partly within one or more of the foregoing paragraphs and, as to the residue, within one or more of the others of the foregoing paragraphs. 1. Although counsel for the defendant accepted for the purposes of this analysis that the claim in tort could fall within Sch 6(e), his contention was that the proceedings for breach of contract do not fit with in any of the causes of action listed in Sch 6. In particular, they do not fit within Sch 6(a), (b), (c) or (m). The result is that the plaintiff was not entitled to purport to serve the defendant in a foreign country with a statement of claim pleading that cause of action. The further result is that that portion of the statement of claim should be struck out by me. 2. Senior counsel ultimately did not resist that proposition. As I have said, he indicated that, if I were to regard this ground as determinative, I should approach it on the basis that he would withdraw the pleaded claim for breach of contract, and simply proceed with the cause of action in negligence. 3. Had this ground been determinative, I would have accepted that concession of senior counsel for the plaintiff, and struck out that portion of the statement of claim that pleads breach of contract. 4. Separately, senior counsel contended that, if that had occurred, he would have been entitled, some time afterwards, to seek leave to amend his statement of claim to reintroduce the excluded cause of action in breach of contract, thereby rendering nugatory any order based upon his concession. Counsel for the defendant replied that any such application would be resisted, and indeed characterised it as possibly being an abuse of process. But that further ancillary point of dispute does not require determination by me. 5. In short, if I am wrong in my primary determination founded upon this Court being a clearly inappropriate forum, I would have struck out that portion of the statement of claim that pleads a breach of contract in Singapore. Ancillary dispute – claim based on vicarious liability doomed to fail pursuant to foreign law? 1. Having determined a primary and ancillary position, each of which is in favour of the defendant, I do not propose to determine the second ancillary question; namely, whether the claim should be struck out on the basis that it is doomed to failure, when one has regard to various aspects of the law about vicarious liability of a foreign nation. 2. In general, I consider that it is very often appropriate to determine ancillary legal and factual questions, in case one is mistaken with regard to the primary determination, and I have done so in many judgments in the past. But there comes a point where determining a non-dispositive legal question is not consistent with the just, quick and cheap resolution of a dispute between the parties. 3. Senior counsel for the plaintiff made it clear that neither the facts nor the Singaporean law said by the defendant to determine the question of vicarious liability in its favour is free from dispute. He invited me to the decision of Bolitho v City & Hackney Health Authority (1998) AC 232 in the House of Lords, thereby raising in my mind whether determination of this non-dispositive question would entail an analysis by me of the subtle differences between the laws of New South Wales, Singapore, and England and Wales. 4. To the extent that determination of this second ancillary dispute would require me to delve deeply into the statute law and judge-made law of at least one foreign country about vicarious liability, employment law, and the vexed question of agency, I consider that the point of contravening the overarching directive in s 56 of the Civil Procedure Act 2005 (NSW) has been reached in this case. For that reason, I do not propose to resolve the second ancillary submission of the defendant. 5. Counsel for the defendant expressed his consent to that course, if he were to succeed on his primary ground. And it goes without saying that the position of the defendant is protected in that regard, in that there has been no adverse determination of this portion of its notice of motion. Conclusion 1. I proceed to summarise my findings for convenience. 2. I consider that the defendant has established that the Supreme Court of New South Wales is a clearly inappropriate forum for the determination of this dispute. 3. If I were wrong about that, I would reject the claim as it currently stands, in that the claim in breach of contract does not fall within the list of causes of action that can be the subject of service outside Australia. In accordance with the contingent position of the plaintiff, I would strike out that part of the claim that pertains to breach of contract, whilst retaining the claim for negligence. 4. I do not propose to determine the second ancillary ground upon which the defendant claims that it is entitled to succeed, because I do not consider that it would be consonant with the overarching purposes of the Civil Procedure Act for me to do so. Costs 1. Neither party submitted that there should be any departure from the usual rule that costs should follow the event. The defendant has obtained the primary order that it sought, and should have its costs as a result. Orders 1. I make the following orders: 1. Pursuant to Rule 12.11(1) of the Uniform Civil Procedure Rules 2005 (NSW), the statement of claim filed on 28 July 2014 is set aside. 2. The plaintiff must pay the costs of the defendant of the proceedings before me. ********** 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: 03 July 2015