District Court New South Wales Medium Neutral Citation: AB v XY [2020] NSWDC 27 Hearing dates: 20 February 2020 Date of orders: 27 February 2020 Decision date: 27 February 2020 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) The Notice of Motion filed 30 May 2019 is dismissed. (2) The defendant is to pay the plaintiff's costs of the Notice of Motion filed 30 May 2019 as agreed or assessed. (3) The parties are to make any application for a variation of order (2) above as to costs within 14 days. (4) The exhibits are to be retained for a period of three months. Catchwords: Civil procedure – jurisdiction – inappropriate forum – whether the court should decline jurisdiction or stay the proceedings on the basis that New South Wales is a clearly inappropriate forum to determine the proceedings Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2 Hardaker v Mana Island Resort (Fiji) Ltd [2018] NSWSC 1863 McGregor v Potts (2005) 68 NSWLR 109; [2005] NSWSC 1098 Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218 Nilepac Pty Ltd v Amstelside BV [2020] NSWSC 57 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Photios v Photios [2019] NSWCA 158 Puttick v Tenon Limited (2008) 238 CLR 265 Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24 Category: Procedural and other rulings Parties: AB (Plaintiff) XY (Defendant) Representation: Counsel: Mr M Windsor SC with Ms E Yasumoto (Plaintiff) Dr C Birch SC with Mr S McCarthy (Defendant) Solicitors: Carroll & O'Dea Lawyers (Plaintiff) Vobis Equity Attorneys (Defendant) File Number(s): 2019/00113051 Judgment 1. Before the court is an application by the defendant, XY, by way of a Notice of Motion filed on 30 May 2019, for the following orders: "1. An Order pursuant to rule 12.11 (1 )(h) of the Uniform Civil Procedure Rules 2005 that the Court declines to exercise jurisdiction in respect of the Statement of Claim filed on 11 April 2019, or, in the alternative, 2. An Order pursuant to section 67 of the Civil Procedure Act 2005 that the proceedings be permanently stayed on the ground that the Courts of New South Wales are clearly an inappropriate forum for such proceeding." 1. The application was resisted by the plaintiff, AB, who submits that the proceedings should remain in this court. 2. A Statement of Claim was filed by the plaintiff on 11 April 2019. No Defence has yet been filed by the defendant. In substance, it is alleged in the Statement of Claim by the plaintiff that the defendant sexually assaulted her in a toilet cubicle of a bathroom of a restaurant in Mykonos in the Hellenic Republic of Greece on 2 July 2016. It is alleged that the plaintiff and the defendant, together with a number of other persons (including the wife of the defendant and the husband of the plaintiff), were attending the restaurant to celebrate the birthday of a mutual friend. It is unnecessary for the purposes of this application to set out in greater detail the allegations made by the plaintiff against the defendant in the assault which are set out in paragraph 10 of the Statement of Claim. 3. In the Statement of Claim, the plaintiff alleges that the defendant's actions constituted the torts of battery, trespass to person and false imprisonment. It is also alleged that as a result of the torts, the plaintiff has suffered injury and disabilities, in particular psychiatric injuries. In the Statement of Claim the plaintiff claims damages including aggravated and exemplary damages and interest and costs. 4. The defendant submits that New South Wales is a clearly inappropriate forum to determine the plaintiff's claims and that the proceedings should be stayed. The defendant submits that there is an alternative forum available to the plaintiff for civil proceedings against the defendant which is Greece. The plaintiff submits that the defendant has failed to establish that New South Wales is a clearly inappropriate forum for the current proceedings to continue. 5. No affidavits were read by either party on the hearing of the Notice of Motion. However, both parties tendered documents. The relevant rules and legislation applicable 1. Part 12.11(1)(h) and (2) of the Uniform Civil Procedure Rules 2005 (NSW) provide as follows: "12.11 Setting aside originating process (1) In any proceedings, the court may make any of the following orders on the application of a defendant— … (h) an order declining to exercise jurisdiction in the proceedings, … (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." 1. No point was taken by the defendant as to the time of filing of the Notice of Motion. 2. Section 67 of the Civil Procedure Act 2005 (NSW) provides as follows: "67 Stay of proceedings Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day." Evidence tendered on the Notice of Motion 1. Before the court on the Notice of Motion was the following evidence: 1. An expert report of Mr Theodoros Ninopoulos, lawyer, from Greece dated 16 October 2019 – Exhibit A; 2. Expert psychiatric report of Associate Professor Carolyn Quadrio, consultant psychiatrist, dated 21 February 2019 – Exhibit 2; and 3. Bundle of documents, including a number of witness statements – Exhibit 3. Mr Ninopoulos' report 1. Mr Ninopoulos' report was admitted into evidence over the plaintiff's objection. Mr Ninopoulos is one of the Greek lawyers acting for the defendant in criminal proceedings which have been brought against the defendant in Greece arising out of the alleged events referred to in the Statement of Claim. After extensive argument, I admitted the report on the basis, in summary, that it appeared to be objective and prepared without apparent bias as well as providing helpful factual background to the criminal proceedings in Greece and the potential procedures that would apply if the plaintiff commenced civil proceedings in Greece for compensation arising out of the alleged facts in the Statement of Claim. 2. In paragraph 3 of his report, Mr Ninopoulos sets out the background and chronology to the criminal proceedings brought against the defendant in Greece for alleged sexual assault and possession of drugs. The background to the Greek criminal proceedings is complicated and I will not set it out in detail in these reasons. In summary, the parties are awaiting the decision of the Supreme Court of Greece as to whether criminal proceedings will continue against the defendant apparently before three judges and four jurors. There is no evidence that there have been any further developments in relation to the criminal proceedings in Greece against the defendant between the time of Mr Ninopoulos' 16 October 2019 report and the hearing of the Notice of Motion: see paragraphs 3.2.3-3.2.4. This was confirmed by senior counsel for the parties. 3. In paragraph 4 of his report, Mr Ninopoulos refers to the witnesses called to provide statements by the Greek authorities in the criminal proceedings. These include two persons who were employed as cleaners of the toilets at the relevant restaurant on 2 July 2016, Mrs Rushiti and Mr Gani, two police officers (including one who examined and analysed video material from the CCTV cameras at the restaurant), a forensic psychologist Dr Christina Antonopoulou and a police officer who prepared a technical expert report for the courts in relation to the CCTV film. In paragraph 4.3.1, Mr Ninopoulos states that if the case goes on to a criminal trial, other witnesses and documentary evidence may be provided by the defendant to the court. 4. In paragraph 4.4 of his report, Mr Ninopoulos refers to documents brought into existence during the course of the criminal investigations in Greece. In the course of the hearing, senior counsel for the plaintiff called for the documents provided to Mr Ninopoulos for the purposes of his report and some of these were tendered as part of Exhibit 3. There is a reference in paragraph 4.5 to CCTV video evidence. The parties agreed that that video evidence was available in Sydney to both parties. In paragraph 4.6, there is a reference to photographs taken by guests at the party. As will be set out below, many of these guests reside in New South Wales. There is no evidence that significant photographs were taken by persons not resident in New South Wales. 5. In paragraphs 5.1 and 5.2 of his report, Mr Ninopoulos raises the question of the use of documentary evidence abroad, in particular documents obtained for the purposes of the criminal case. He expresses the opinion that the plaintiff and the defendant have a right to obtain copies of the criminal case documents either directly or by their lawyers in Greece. The plaintiff has retained lawyers in Greece in relation to the criminal proceedings. In relation to personal data, Mr Ninopoulos says that he is not an expert on European Union General Data Protection Law regarding the use of personal data overseas. 6. In paragraph 6 of his opinion, Mr Ninopoulos sets out the applicable law relating to a civil action for "rape" in Greece and how that civil action would be able to be brought under Greek law in Greek courts in the light of the outcome of the criminal proceedings. In the course of that analysis, he considers any time limits which might have expired. As was pointed out by senior counsel for the plaintiff, Mr Ninopoulos does not set out the position if the defendant is successful in resisting the criminal proceedings and in particular, whether that would still permit civil proceedings against the defendant in Greece. There is also no discussion about the onus or standard of proof in criminal or civil proceedings in Greece arising out of the alleged facts in the present case. In paragraph 6.3.1, Mr Ninopoulos states that under Greek law experts reports may be ordered to be drafted by the civil court such as an analysis of the CCTV material. 7. Mr Ninopoulos considers limitation issues and jurisdiction and states in paragraph 6.6.1 that in his opinion there are no apparent restrictions preventing the plaintiff bringing a civil action in Greece against the defendant for the alleged crime of rape. He notes that there are no apparent limitation periods involved at present. 8. In paragraph 6.6.3 of his report, he states as follows: "It has to be noted that the civil trial for such a civil claim under the new rules of the GCCP is conducted only with documents (under oath witness statements) and although there is provision in law that the judge may order the physical appearance of the witness in court, in practice this is very unlikely to be ordered." Report of Associate Professor Carolyn Quadrio 1. The report of Associate Professor Quadrio dated 21 February 2019 was admitted subject to relevance. The defendant submitted that the report was irrelevant to the issues before the court. In the report, Associate Professor Quadrio concludes that the plaintiff has chronic post-traumatic stress disorder, depressive disorder, generalised and agoraphobic anxiety disorder and a panic disorder (page 15). At page 17 of her report, Associate Professor Quadrio states that there are no indications that the plaintiff had prior mental health problems or any vulnerability to such and referred to the plaintiff being in good health both physically and mentally. Associate Professor Quadrio sets out the plaintiff's version of the events and the plaintiff's claims that she has mental health problems arising from the alleged facts. Associate Professor Quadrio seems to conclude that based on the account of the plaintiff being accepted, the psychiatric conditions found arose from the alleged acts of the defendant. 2. In my view, the report is relevant and should be admitted without qualification. It is relevant to the effect on the plaintiff of needing to travel, in circumstances where she has four young children, to Greece for potential civil proceedings. However, the need for travel for that purpose is unclear as travel may also be required if the criminal proceedings continue or if the judge hearing any civil proceedings in Greece requires the physical appearance of a witness in court: see paragraph 6.6.3 of Mr Ninopoulos' report. Bundle of documents 1. The bundle of documents which was made Exhibit 3 in the proceedings includes statements by the plaintiff, her husband, a witness who the plaintiff claims was the first person she came into contact with and spoke to after the alleged sexual assault (CD), another witness who saw the plaintiff and the defendant proceed to the toilet soon after each other (EF) and the two cleaners, Mrs Rushiti and Mr Gani. There is also a statement from the defendant. A number of the statements are in the Greek language. They were admitted as the address of a number of the relevant witnesses is in New South Wales. 2. There is also a company search of XXXX of which the defendant was a director as at 13 February 2020. Factual findings 1. Having regard to the evidence before the court, and taking into account the submissions and concessions made by the parties during the hearing of the Notice of Motion, I make the following factual findings for the purposes of the Notice of Motion: 1. The Statement of Claim which I have referred to above which was filed by the plaintiff in this court bringing civil proceedings against the defendant was filed on 11 April 2019; 2. The plaintiff lives with her family at Bellevue Hill in Sydney; 3. The plaintiff speaks English and does not speak the Greek language; 4. The plaintiff lives with her husband and four children. The plaintiff's husband was present at the party when the alleged torts occurred; 5. A potentially important witness is CD who the plaintiff spoke to shortly after she left the toilets. He lives in New South Wales; 6. CD's wife, whose birthday celebration it was that the parties attended on 2 July 2016, also it appears lives in New South Wales; 7. EF who apparently saw the plaintiff and the defendant go to the toilets has an address in the city of Sydney in New South Wales; 8. The defendant resides in the suburb of Vaucluse in Sydney in New South Wales. As stated above, he is a director of XXXX which is registered in New South Wales and was appointed a director on 15 June 2016; 9. The children of the defendant and his wife apparently attend the same school as some of the children of the plaintiff. That school is in Sydney in New South Wales; 10. In his expert report, Mr Ninopoulos states that the cleaner Mrs Rushiti, who holds an Albanian passport, is a resident of Mykonos in Greece. Mr Gani, who is the holder of a Bangladeshi passport, is not stated to be a resident of Mykonos in Greece. Although they are potentially relevant witnesses to a criminal proceeding or a civil claim, there is no evidence that either Mrs Rushiti or Mr Gani would not be available to give evidence by video link from Greece to Sydney; 11. There are a number of police witnesses referred to in Mr Ninopoulos' report. There is no indication that those witnesses would not give evidence by video link to Sydney from Greece. One expert police witness said that he would not be willing to come to Australia to give evidence. However, he was an expert witness and presumably he could give his evidence satisfactorily by video link from Greece. Dr Antonopoulou, the forensic psychologist, also indicated that she would not be willing to come to Australia to give evidence because of her "advanced age". Again, there is no evidence that her evidence is crucial or that she would not be willing to give evidence by video link from Greece to Australia; 12. The apparent most significant witnesses in the case on the statements in Exhibit 3 (particularly the statements of the plaintiff), are the plaintiff and her husband, the defendant (and potentially his wife), CD and EF. They are all residents of New South Wales; 13. Associate Professor Quadrio has as her address Randwick in New South Wales. In the course of the report, she refers to a number of treating medical practitioners. It appears that these health professionals are all based in New South Wales and would be potential witnesses in any civil proceedings relating to the psychiatric condition of the plaintiff and the effect of the alleged acts (if accepted) on her health; 14. It appears very unlikely that a view of the restaurant, bathroom and toilet area at the restaurant in Mykonos in Greece would be required for the purposes of any civil proceedings, contrary to the written submission of senior counsel for the defendant. The court frequently has matters before it involving issues of the precise dimensions and locations of places where alleged torts or other accidents occurred and a view is seldom required for the proper hearing of the matter. There is no reason to conclude that through the use of film or photographs or diagrams or expert reports that the court could not understand the location where the acts allegedly occurred and no disadvantage to the parties is apparent from the absence of a view. Legal principles applicable on the application 1. My attention was brought by counsel in written submissions to numerous authorities setting out the relevant legal principles applicable. Other authorities were referred to in the course of oral submissions which I will discuss below. 2. The general principles applicable on the application may be found in the following High Court cases: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247-248; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564-565; and Puttick v Tenon Limited (2008) 238 CLR 265 at 276-277 (where the test in Voth was confirmed). 3. In Voth v Manildra Flour Mills Pty Ltd, above, the majority of 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 Co Inc, above, at 247-248. 4. Those principles have been summarised and applied in a number of recent cases: Hardaker v Mana Island Resort (Fiji) Ltd [2018] NSWSC 1863, Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218, Photios v Photios [2019] NSWCA 158 and Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2. In the latter case, the Western Australian Court of Appeal stated in a joint judgment as follows at paragraphs 18-22: "18. In relation to the inappropriate forum issue, the question is whether the local court is a clearly inappropriate forum for the determination of the dispute, having regard to all of the circumstances of the case. A court will be a clearly inappropriate forum if the 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 that it would cause serious and unjustified trouble and harassment. 19. One circumstance which will always be relevant to the application of the clearly inappropriate forum test will be the availability of relief in a foreign court or tribunal. However, the question whether the local court is a clearly inappropriate forum does not turn 'upon an assessment of the comparative procedural or other claims of the foreign forum', or require the formation of subjective views about either the merits of that forum's legal system or the standards and impartiality of those who administer it. The question whether the local court is a clearly inappropriate forum focuses on the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum. That is, a court is not a clearly inappropriate forum merely because another one is more appropriate. 20. Similarly, whether the substantive law of the forum is applicable in the determination of the dispute which is the subject of the action is a significant factor in the exercise of the discretion to set aside service outside the jurisdiction, but it is not determinative. 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 law governing the determination of the dispute. 21. Any legitimate personal or juridical advantage is also a relevant, but not decisive, consideration in determining whether the local court is a clearly inappropriate forum. 22. The determination of whether the local court is not a clearly inappropriate forum, in the sense of determining whether a trial in the local jurisdiction would not be productive of injustice, involves an evaluative judgment. The role of the primary judge in considering whether the local court is a clearly inappropriate jurisdiction is thus not merely to weigh all the factors, but to make a judgment as to whether a trial in the jurisdiction would be productive of injustice, in the sense described above at [18]." 1. In Puttick, above, the majority of the High Court stated as follows in paragraph 27: "In Voth v Manildra Flour Mills Pty Ltd, the Court held that a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for determination of the dispute. The reasons of the plurality in Voth pointed out that the focus must be "upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum"." 1. The proceedings on their face here were properly commenced in this Court. 2. The question is whether New South Wales is a clearly inappropriate forum in which to permit the action to proceed. 3. There is no suggestion that leave was required to serve the defendant with the initiating process in these proceedings. If that were the case, the onus would rest on the plaintiff to establish that New South Wales was not clearly an inappropriate forum: Voth, above, at 564. 4. The acts relied upon by the plaintiff to support her claims were allegedly committed by the defendant in Greece, and thus the torts, if they were torts, were committed there. 5. Without deciding the matter finally, I assume for the purpose of deciding the application, that the defendant would only be liable if he were liable under the civil law of Greece: Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491; United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24 per Allsop P at [29]. There may be potential arguments in the proceedings as to whether all aspects of the law of Greece will apply to a civil action: Zhang at [74]-[76]. I do not decide that matter. However, it appears on the authorities that the substance of the law to be applied including if the matter were heard in New South Wales, in determining whether the plaintiff has established any civil claim for a civil wrong against the defendant will be the law of Greece. 6. That fact gives rise to the need for experts' reports if the matter was to proceed in New South Wales from experts as to Greek law. Cross-examination may be involved of such experts. That will increase the cost of any proceedings significantly if they remain in New South Wales. There was no evidence before me that the parties were persons of limited means. 7. The onus rests on the defendant/applicant to satisfy the court that New South Wales was clearly an inappropriate forum in which to permit the matter to proceed: Voth at 565. 8. The question whether the local court is a clearly inappropriate forum focuses upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum, here Greece: Voth at 565. 9. As was stated by the Court of Appeal in Photios v Photios, above, at [43] per Bell P (with whom Leeming and Gleeson JJA agreed), in Oceanic, above, Deane J at 243 referred to the prima facie right of a claimant to insist upon the exercise of competent jurisdiction, regularly invoked, with this prima facie right not to be lightly displaced or denied. The question is whether the hearing of the matter would be vexatious or oppressive or amount to an abuse of process. These terms have a particular meaning. The suggestion of a prima facie right of a claimant to insist upon the exercise of competent jurisdiction, however, does not add a further burden or hurdle to a defendant in establishing whether the local forum is a clearly inappropriate forum. 10. In McGregor v Potts (2005) 68 NSWLR 109, Brereton J stated as follows in paragraph 43: "43. In his judgment, the learned Master correctly stated these principles. But in my respectful opinion, in acceding to the submissions made on behalf of Ms McGregor to the effect that the vexation and oppression claimed by the defendants was largely conjecture, and thus discounting it, he was led into error in the application of those principles. The Voth principles do not require proof of actual vexation or oppression; what they require is proof of a sufficient imbalance of the "connecting factors" that it can be said that the local forum is a "clearly inappropriate", as distinct from "less appropriate", one. Once that is established, the law presumes vexation and oppression will be occasioned to the foreign party by requiring it to litigate in a clearly inappropriate forum, without requiring proof of actual vexation or oppression." 1. In Oceanic, above, Deane J stated at 247 that "oppressive" in the context should be understood "as meaning seriously and unfairly burdensome, prejudicial or damaging while "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment": see Photios at [44]. As Brereton J stated in McGregor, actual vexation or oppression need not be proved. The question is whether the connecting factors show that the local forum is clearly inappropriate as distinct from less appropriate. If it is, the law presumes vexation and oppression will be occasioned by requiring the defendant to litigate in a clearly inappropriate forum. 2. Accordingly, the question in the present case is whether New South Wales is a clearly inappropriate forum for the determination of the dispute, having regard to all the circumstances of the case: Oceanic at 247, Voth at 564-5, Zhang, above, at [25]; Bombardier, above, at [18]. 3. The substantive law to be applied in the forum is a very significant factor in the exercise of the court's discretion, but the court should not focus upon that fact to the exclusion of all other matters: Voth, above, at 566. 4. 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 the courts to apply a foreign law as the law governing the determination of the proceedings: Zhang at [81]; Bombardier at [20]. 5. In the court determining whether New South Wales is a clearly inappropriate forum, the court must be involved in an evaluative judgment considering all relevant factors and whether a continuation of the trial in New South Wales would produce vexation or oppression to the defendant. 6. The parties accepted during submissions that Greece was a western democratic country subject to the rule of law. From the evidence in Mr Ninopoulos' report, it appears that Greece is a foreign jurisdiction which would provide the plaintiff with available relief for a civil claim relating to the alleged facts of the case. Submissions of the parties 1. Extensive written and oral submissions were provided by counsel for the parties. It is inappropriate to set out these submissions in detail. Extensive submissions were made by the plaintiff that New South Wales was not a clearly inappropriate forum. Numerous factors were pointed to as supporting that conclusion. Counsel for the defendant in their detailed submissions, also pointed to a number of matters which in their view made New South Wales a clearly inappropriate forum and Greece as the appropriate forum for the determination of the civil claim of the plaintiff. I have taken all of those submissions into account. 2. The defendant submitted, in summary, that the District Court of New South Wales was a clearly inappropriate forum for trial of the plaintiff's civil claim because: 1. The plaintiff's claim will be subject to the law of Greece. It was submitted that this was the most significant point in favour of the application. It was submitted that Greece is a civil law country not a common law country, its laws were in a different language and there would be extensive cost and trouble in obtaining expert reports as to Greek law. In addition, it was submitted that the concepts in Greek law would be unfamiliar to a court in New South Wales. Reliance was placed on Nilepac Pty Ltd v Amstelside BV [2020] NSWSC 57 at [29] where Parker J found that the application of Dutch civil law to the matter with different concepts in contract law was a decisive factor in favour of an application; 2. A number of crucial witnesses to the defence of the claim reside in Greece and would not be under the control or direction of the defendant and could only be procured pursuant to subpoenas or process issued by a Greek court; 3. Substantial documentary and real evidence including CCTV footage was collected by the Greek police force and was under control of the Greek law enforcement authority; 4. A view may be required to understand the evidence of the parties. I have already excluded this matter as being a significant matter above; 5. There are continuing criminal proceedings in Greece and the timing and conduct of any civil trial in Australia would need to take cognizance of the course of those Greek criminal proceedings – it is likely that if the defendant's current application fails that in due course there would be an application to stay the civil proceedings pending the determination of the criminal proceedings in Greece. Accordingly, I do not see this as a significant factor. It would clearly be taken into account by the court here if the matter was not stayed permanently; 6. The substantive rights of the plaintiff in regard to her claim are affected and interact with the Greek criminal proceedings which is a matter of substantive Greek law which would need to be applied in any event by an Australian court - the likely result of the Greek criminal proceedings is uncertain. While Mr Ninopoulos in his report suggests that if the defendant is convicted in the Greek criminal proceedings that may be relevant to the establishment of the civil claim in Greece, he does not fully set out the position nor explain what would be the position if the defendant was successful in ceasing the criminal proceedings; 7. There is a clear and available civil remedy to the plaintiff in regard to her complaint under Greek law as to which the applicant would be amenable if the proceedings were stayed – I accept that this is a factor to be taken into account as a civil claim in Greece seems to be permitted under the Greek civil law; 8. It is unclear whether the two cleaners or the police witnesses or the forensic psychologist, Dr Antanopoulou, would be willing to give oral evidence by video link. It is also unclear whether other relevant witnesses may emerge which should be called and these may be located in Greece. 1. In their submissions, counsel for the plaintiff relied on a large number of connecting factors which in their submission established that New South Wales was not a clearly inappropriate forum for the hearing of the civil proceedings. These included: 1. The location of the significant witnesses; 2. The location of the parties; 3. The possibility that aspects of New South Wales damages law may be applicable; 4. The location of Associate Professor Quadrio and the plaintiff's treating medical practitioners; 5. The parties have access to the CCTV evidence in New South Wales; 6. It is mere speculation that a view of the restaurant may be important as asserted; 7. The plaintiff has suffered ongoing loss and damage in New South Wales; 8. The plaintiff's mental health would make it more difficult for her to travel to Greece. However, I note that she may be required to give evidence in any criminal proceedings if they continue; 9. The plaintiff does not speak the Greek language and would be at a severe disadvantage if she was required to bring civil proceedings in Greece. She would also require the presence of an interpreter and this would increase costs; 10. There will be a need for expert evidence as to the extent of the plaintiff's psychiatric harm and ongoing treatment – Associate Professor Quadrio is based in New South Wales. The defendant could retain a psychiatrist in New South Wales to review the plaintiff; 11. The plaintiff has a large and young family to care for and it would cause hardship to her and her children to require her to go to Greece for the civil proceedings. The defendant on the other hand resides in New South Wales although he travels frequently overseas to Greece for business. Here I note that the plaintiff may be required to go to Greece for the criminal proceedings (or possibly even civil proceedings if they were brought in Greece); 12. The need to find English speaking Greek solicitors to instruct for a civil claim would involve difficulties and cost; and 13. There may be a need to call witnesses being parents of schoolchildren who are peers of the plaintiff's children who have witnessed the difficulties the plaintiff has at school drop off and collection due to the fact that children of the plaintiff and the defended attend the same school. Determination 1. I have reviewed the relevant connecting factors put forward by the parties to determine whether there is a sufficient imbalance of those factors such that it can be said that New South Wales is a clearly inappropriate forum: see McGregor v Potts, above at [43], Bombardier, above at [22]; and Puttick v Tenon, above at [27]. This involves reviewing all the relevant circumstances of the case. 2. Having undertaken that process, I am not satisfied that the defendant has established that New South Wales is a clearly inappropriate forum for the determination of the current proceedings for the following reasons: 1. The plaintiff and the defendant reside in New South Wales. This is an important factor; 2. The defendant has some business interests in New South Wales; 3. The spouses of the parties live in New South Wales and were apparently present at the time of the party; 4. Significant witnesses being CD and EF reside in New South Wales. This is an important factor; 5. There is no evidence before me that Mrs Rushiti, Mr Gani, the various Greek police witnesses and Dr Antanopoulou would not be willing to give evidence by video link or were otherwise unavailable. I am also not satisfied that Mrs Rushiti and Mr Gani are crucial witnesses. Their statements in Greek are available to the parties. The CCTV footage is available to the parties in New South Wales. What it shows can be described and explained, where necessary, by the relevant witnesses who reside in New South Wales. There are no other crucial witnesses who appear to be relevant who are located in Greece and are not willing to give evidence by video link. I am not satisfied that there are crucial or important documents that are only available in Greece. Nor is there any indication that this is likely to be the case; 6. In paragraph 5.1 of his report, Mr Ninopoulos states that the parties have a right to obtain copies of the criminal case documents either directly or by their lawyers in Greece. He does not say that the use of these documents in Australia is prohibited under the EU General Data Protection Regulation. He states he has no expertise on that issue; 7. The plaintiff does not speak Greek and the proceedings in New South Wales would be conducted in the English language. There is nothing to suggest that civil proceedings in Greece would be conducted in anything other than the Greek language. An interpreter would be required for the plaintiff and potentially other witnesses if the civil action was to be undertaken in Greece. This would be an added cost. This is a relevant factor; 8. I take into account that the plaintiff is alleging a psychiatric injury and that her treating doctors are based in New South Wales and her expert psychiatrist Associate Professor Quadrio is based in New South Wales. It is presumed these witnesses would be relevant in proceedings in New South Wales or Greece. It would be more convenient if they gave their evidence in New South Wales. The defendant could readily retain an expert psychiatrist to review the plaintiff in New South Wales; 9. I take into account as a significant matter that the substantive law of Greece would be applicable to the civil claim if it was heard in New South Wales. The law of Greece is obviously in the Greek language which is a foreign language and I take into account that experts in Greek law would need to be retained at significant cost. This is an important matter to take into account. However, all factors must be taken into account. The fact that a foreign law in a foreign language was to be applied to the hearing of a cause of action was not considered to be determinative in Oceanic (the law of Greece as here) or in Zhang (Vanuatu where French law applied). However, it may be decisive in other cases. There is nothing to suggest that Greece would not be an appropriate forum to hear the claim. However, there was no suggestion that lawyers with expertise in Greek law who were fluent in English were not available to give evidence, as was the case with Mr Ninopoulos. In my view, while this is a significant matter it is not decisive and is outweighed by the other factors I have mentioned; 10. I take into account the plaintiff's current psychiatric condition. I take into account that she has a young family. However, in my view this is not a very significant matter to the application as she may have to give evidence in criminal proceedings if those proceedings continue and also may be required to give evidence in civil proceedings in Greece if the judge requires it: see paragraph 6.6.3 of Mr Ninopoulos' report. Further, the plaintiff would generally be required to give oral evidence in New South Wales if she had to establish her case; 11. As I indicated above, in my opinion a view of the restaurant and toilet in Mykonos is unlikely to be necessary; 12. Whilst the outcome of the Greek proceedings may be relevant, what that outcome will be is currently unclear. Mr Ninopoulos did not indicate that civil proceedings would be unavailable if the defendant was successful in defending his criminal proceedings. 1. The above balancing analysis indicates in my view that while Greece is an appropriate forum to hear a civil claim for the plaintiff it has not been established to my satisfaction that New South Wales is a clearly inappropriate forum for the civil proceedings. The location of the parties, significant factual witnesses, the medical treating doctors, the availability of the video evidence here, access to relevant statements including the Greek criminal file, the plaintiff's medico-legal expert (and the fact the defendant can retain a medico-legal expert here), the unlikely need for a view and the fact the plaintiff does not speak Greek, in my view are more significant factors together than the application of the substantive law of Greece to the claim, the additional cost of Greek law experts and potential difficulties with other witnesses as well as the other factors relied upon by the defendant. 2. Accordingly, the Notice of Motion is dismissed. 3. As the defendant has failed on the Notice of Motion, in my view the usual order as to costs should follow. However, I will give the parties the opportunity to make an application as to costs if they consider that appropriate. 4. For the above reasons I make the following orders: 1. The Notice of Motion filed 30 May 2019 is dismissed. 2. The defendant is to pay the plaintiff's costs of the Notice of Motion filed 30 May 2019 as agreed or assessed. 3. The parties are to make any application for a variation of order (2) above as to costs within 14 days. 4. The exhibits are to be retained for a period of three months. 1. I was considerably assisted by the submissions made by counsel for the parties for which I was grateful. ********** Pseudonyms have been used for the parties and local witnesses and entities in these reasons for the purpose of publication. 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: 27 February 2020