Placer (PNG) Pty. Limited v Anderson
[1997] QCA 74
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- Placer (PNG) Pty. Limited v Anderson[1997] QCA 74
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Placer (PNG) Pty. Limited v Anderson[1997] QCA 74
Placer (PNG) Pty. Limited v Anderson[1997] QCA 74
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 6559 of 1996
Brisbane
BETWEEN:
PLACER (PNG) PTY. LIMITED
(Defendant) Appellant
AND:
BARRY GAVIN ANDERSON
(Plaintiff) Respondent
Davies JA
Williams J
Mackenzie J
Judgment delivered 18 April 1997.
Joint reasons for judgment of Davies J.A. and Mackenzie J.; separate judgment of Williams J. agreeing with the orders made.
APPEAL DISMISSED WITH COSTS
| CATCHWORDS: | PERSONAL INJURIES - employment contract - clearly inappropriate forum - factors relevant to determining forum considered - proper law of contract. Spiliada Maritime Corporation v. Cansulex Ltd. [1987] 1 A.C. 460 Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 C.L.R. 538 |
| Counsel: | Mr. R. N. Chesterman Q.C., with him Mr. M. A. Drew for the appellant Mr. S. G. Jones Q.C. for the respondent |
| Solicitors: | McInnes Wilson & Jensen, town agents for Connolly Suthers, Townsville for the appellant Quinlan Miller & Treston, town agents for Macrossan & Amiet, Mackay for the respondent |
| Hearing Date: | 8 April 1997 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 6559 of 1996
Brisbane
Before Davies JA
Williams J
Mackenzie J
BETWEEN:
PLACER (PNG) PTY. LIMITED
(Defendant) Appellant
AND:
BARRY GAVIN ANDERSON
(Plaintiff) Respondent
JOINT REASONS FOR JUDGMENT - DAVIES JA AND MACKENZIE J
Judgment delivered 18 April 1997
The appellant is the defendant in an action for breach of contract in the Supreme Court of Queensland. It appeals to this Court from a refusal by a Judge of the Trial Division to stay the action on the ground that that court is a clearly inappropriate forum for the determination of the action. The appellant concedes that the appeal is against the exercise of a discretion with the difficulties that carries for its success on appeal.
The respondent, who is the plaintiff in that action, was employed by the appellant pursuant to a contract in writing dated 24 February 1992. During the course of his employment on 24 November 1992 he was injured whilst working at the appellant's mine at Porgera in Papua New Guinea. The action, although framed in contract, was one for damages for personal injuries arising out of that incident. It is alleged that the respondent's injuries were caused by breaches by the appellant of its contractual duties of care to the respondent as its employee.
At the time of his injury and at the time of commencement of these proceedings the respondent was resident in Queensland. Negotiations leading to the making of the contract and the fulfilment by the respondent of pre-contractual conditions took place in Queensland. However the contract was executed in Papua New Guinea because, fortuitously, the respondent was temporarily working there at that time.
The appellant submitted that the learned primary Judge could not reasonably have concluded that the Supreme Court of Queensland was not a clearly inappropriate forum because a court in Papua New Guinea was the natural or more appropriate forum and, that being so, this was not one of those cases in which it could not be said that the Queensland Supreme Court was a clearly inappropriate one: Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 C.L.R. 538 at 558. The appellant submitted that a Papua New Guinea court was the natural or more appropriate forum because of the factors, to which we have referred, that the contract of employment was made there and that the alleged breach of it occurred there.
There is no doubt that those factors mean that a Papua New Guinea forum was, at the time of institution of these proceedings, an available and appropriate one, though that is no longer the case because the limitation period has expired and no offer was made to the learned primary Judge to waive reliance on the relevant limitation statute in that jurisdiction. But it does not necessarily follow, in our view, that Papua New Guinea would be the natural or more appropriate forum. That phrase means the forum with which the action has the most real and substantial connection: Voth at 557. The connecting factors, in this sense, include factors affecting convenience or expense (such as availability of witnesses) and factors such as the law governing the relevant transaction: Spiliada Maritime Corporation v. Cansulex Ltd. [1987] 1 A.C. 460 at 478; Voth at 564-5.
It is impossible to say that the learned primary Judge was plainly wrong in concluding that the factors affecting convenience and expense favoured the Queensland forum. After his injury the respondent returned to Queensland and thereafter all of his medical treatment took place in Australia. Indeed, if it matters, the likelihood that that would occur must have been within the contemplation of the parties when the contract was made. The respondent intended to and did continue to reside in Queensland; the contract permitted the respondent to return to his Queensland residence, at the appellant's expense, at the end of each 20 day work period for a 10 day break and that is what occurred. The respondent's evidence, which was accepted, was that three witnesses whom he proposed calling at the trial, as well as he, resided in Australia and that he could not afford to litigate in Papua New Guinea.
On the other hand, when the matter first came on before the learned primary Judge there was nothing to indicate that the appellant intended to contest liability or to call any witnesses. It was only after his Honour remarked on the first of these that on the adjourned hearing date a brief affidavit was filed indicating an intention to contest liability and to call several witnesses who resided in Papua New Guinea.
Moreover, whilst the respondent, since his accident, has no connection with Papua New Guinea and, as we have said, cannot afford to litigate there, the appellant has at all times maintained a presence in Australia. It has an office at which it recruits employees in Cairns and, it appears, most of its expatriate employees are engaged in Australia. Moreover it is a large corporation and, unsurprisingly, has legal advisers in Australia.
As to the law governing the relevant transaction, accepting, as seems likely (though we need not finally decide that) that it is the law of Papua New Guinea, the learned primary Judge said that it was not suggested before him that there was any significant difference between the law of Papua New Guinea and Queensland applicable to a case of this kind. There was certainly no evidence to that effect.
Before this Court the appellant relied primarily on such legal matters as that the contract was made in Papua New Guinea and that the alleged breach occurred there. Both of these contentions may be accepted although, as to the former as we have indicated, the signing of the contract in Papua New Guinea was fortuitous and it seems likely that, in the ordinary course of events, it would have been executed in Queensland. Moreover, if it matters there were important obligations under the contract, including payment by the appellant, which were required to be performed in Australia. More importantly, assessment of the relevant connecting factors requires a consideration much broader than merely of those factors which may be relevant to determine the proper law of the contract or whether a particular court has jurisdiction. His Honour assessed those relevant connecting factors in the light of the principles to which we have referred.
The question which his Honour determined is pre-eminently one for the trial Judge, an appeal should be rare and an appellate court should be slow to intervene: Voth at 570. For the reasons we have given we cannot be satisfied that the learned primary Judge wrongly exercised his discretion in refusing the stay which the appellant sought.
The learned primary Judge found that there was no specific disadvantage to the appellant if the litigation was conducted in Queensland. There was no challenge to that finding, and it clearly appears correct on the evidence. There is nothing in the appellant's material to establish that it would be oppressive to the appellant or vexatious to allow the action to continue in the Queensland court. There is nothing to suggest that the case could not be tried suitably in the interests of all parties in that court.
The appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 6559 of 1996
Brisbane
Before Davies JA
Williams J
Mackenzie J
BETWEEN:
PLACER (PNG) PTY LTD
(Defendant) Appellant
AND:
BARRY GAVIN ANDERSON
(Plaintiff) Respondent
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 18 April 1997
I agree with the reasons for judgment prepared by Davies JA and Mackenzie J and with the orders they propose.