Sandra Millett v Randy Raymond Hookham [1996] ACTSC 29 (19 April 1996)

SUPREME COURT OF THE ACT

SANDRA MILLETT v. RANDY RAYMOND HOOKHAM
No. SC 648 OF 1995
Number of pages - 4
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T CONNOLLY

CATCHWORDS

Practice and Procedure - Application for Stay of Proceedings - Damages - Personal Injury - Motor Vehicle Accident - Foreign Jurisdiction - Appropriate Forum - Clearly Inappropriate Forum Test.

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

Oceanic Sun Line Special Shipping Co v Fay [1988] HCA 32; (1988) 165 CLR 197
Societie du Gaz de Paris v Armateus Francais 1926 SC (HL) 13
Spiliada Maritime Corporation v Cansulex Ltd (1987) 1 AC 460
Club Meditierre NZ v Wendell (1989) 1 NZLR 216
Antares Shipping v The Ship Capricorn (1977) 2 SCR 422 (Canada)

Nygh, Conflict of Laws in Australia (5th ed) at 102

HEARING

CANBERRA, 12 April 1996
19:4:1996

Counsel for the Plaintiff: Mr M McDonogh

Instructing Solicitors: Abbott Tout Harper and Blain

Counsel for the Defendant: Mr R Clynes

Instructing Solicitors: Minter Ellison

ORDER

THE COURT ORDERS THAT:
1. The Notice of Motion be dismissed.

2. The defendant pay the plaintiff's costs of the application.

DECISION

MASTER T CONNOLLY This is an application to stay proceedings in an action for damages for personal injuries arising out of a motor vehicle accident in a foreign jurisdiction.

2. The plaintiff, Sandra Millett, received quite extensive injuries when a bus in which she was a passenger was involved in an accident on a highway south of Warsaw in Poland on 23 July 1995 in which one Australian passenger was killed and others were injured. The bus was driven at the time by the defendant, Mr Hookham, who resides at Cooma. Ms Millett is a young Canberra resident who, like so many young Australians, was undertaking a tour of Europe. She purchased a 45 day coach/camping tour of Scandanavia, Russia and East Europe from a travel agent in Southport Queensland, and left London on 17 June 1995. It appears that the tour bus was registered and insured in the Netherlands.

3. The plaintiff required surgery on her leg, and was hospitalised for 13 days in Poland before repatriation to Australia and treatment at Woden Valley Hospital. She brings a claim against the driver of the motor vehicle based on negligence claiming damages.

4. The Notice of Motion before me filed on behalf of the defendant seeks a permanent stay of this action, based on the claim that it is inappropriate for the Supreme Court of the ACT to hear and determine this claim. The Notice of Motion has been before me previously, but was adjourned so that Counsel could be briefed to fully argue the matter.

5. At the hearing Counsel for the plaintiff raised a number of procedural defects in the Notice of Motion. These were disputed for Counsel for the defendant, and were in any event easily remedied. A ruling adverse to the Notice of Motion would inevitably add costs, and so I will address the substantive issue.

6. I am mindful of the advice to primary decision makers in the judgment of Mason CJ, Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 565:

"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."

7. Having had the assistance of extensive argument from Counsel and further affidavit material, I decline to make the order sought and dismiss the Notice of Motion with costs to the plaintiff.

8. The law to be applied in applications to deny to a local plaintiff the jurisdiction of the Court has been subject to some controversy in recent years, and a divergence of approach has developed between Australian and English and other common law courts. The traditional Australian and English approach towards the right of a plaintiff to exercise his or her jurisdiction of choice was expressed by Deane J in Oceanic Sun Line Special Shipping Co v Fay [1988] HCA 32; (1988) 165 CLR 197 at 241 as follows:

"A party who has regularly invoked the jurisdiction of a competent
court has a prima facie right to insist upon its exercise and to
have his claim heard and determined."

9. This approach contrasted to the view of courts in the United States and Scotland, which have adopted what has been described as the doctrine of "forum non conveniens" (see Nygh, Conflict of Laws in Australia (5th ed) at 102) which gives the court a discretion to decide, in effect, which is the most appropriate jurisdiction to hear and determine the matter. The approach in its Scottish context, was well summed up by Lord Sumner in Societie du Gaz de Paris v Armateus Francais 1926 SC (HL) 13 at 22:

"the object ... is to find that forum which is more suitable for
the ends of justice, and is preferable because pursuit of the
litigation in that forum is more likely to secure those ends."

10. In a series of cases from 1974 to 1987 the English courts have moved to adopt this test. In Spiliada Maritime Corporation v Cansulex Ltd (1987) 1 AC 460 the House of Lords adopted the view that a stay will be granted:

"where the court is satisfied that there is some other available
forum, having jurisdiction, which is the appropriate forum for the
trial of the action, i.e. in which the case may be tried more
suitably for the interests of the parties and the ends of
justice"

per Lord Goff at 476.

11. This test requires the court to make a judgment as to which jurisdiction is the more appropriate forum, and is clearly less advantageous for the plaintiff seeking the advantage of local jurisdiction. While this test has now received broad support in the common law world (Club Meditierre NZ v Wendell (1989) 1 NZLR 216, Antares Shipping v The Ship Capricorn (1977) 2 SCR 422 (Canada)), the High Court of Australia has rejected Spiliada as the law for Australia.

12. What has emerged from Oceanic Sun Line v Fay and Voth v Manildra Flour Mills is a "clearly inappropriate forum test". The court is not required, as a matter of balance, to decide which jurisdiction is more convenient. Rather, the plaintiff is to be taken to have a right to commence his or her action in their forum of choice unless it can be shown that that is a clearly inappropriate forum. This does involve some movement away from the traditional test, but the Spiliada test is clearly not the law in Australia.

13. The majority judgment (Mason CJ, Deane, Dawson and Gaudron JJ) in Voth v Manildra Flour Mills sets out a fourfold test for commencing consideration of an application for a stay:

"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'"

(at 554).

14. Applying the Voth test, that is the clearly inappropriate forum test, I have no hesitation in dismissing this stay application. The plaintiff is domiciled in Canberra, a range of medical experts who have been involved in her treatment are based here, and much of the evidence of her ongoing loss is here. The defendant is based some 100 kms away in Cooma. The only competing argument is that the defendant may have some contribution action against an Estonian semi trailer that on the view of Polish investigators (or at least a translation in the affidavit material) was "not responsible" for the accident, but was driven "inappropriately".

15. The possibility that some possible third party action might possibly be easier if this matter were to be heard in a Polish, or other European court, is insufficient grounds, in my view, to meet even the Spiliada test, and is certainly insufficient to establish the higher standard required by the "clearly inappropriate forum" test now required by the common law of Australia.