Discretionary non-exercise of jurisdiction
Forum non conveniens
McGregor v. Potts
[2005] NSWSC 1098 (Supreme Court of New South Wales)
A sufficient imbalance of “connecting factors” may lead to a presumption that local
proceedings are oppressive or vexatious.
Background
The plaintiff, Jacqueline McGregor, travelled from Australia to England where she
obtained employment as a veterinary surgeon with the first defendants who conducted
a leading equine hospital.
In the course of her work, the plaintiff suffered serious personal injury when she was
kicked in the face by a horse. The plaintiff received treatment at a hospital in England
(the second defendant) and underwent surgery performed by Dr Hall (the third
defendant). The plaintiff later returned to Australia and underwent remedial surgery
in New South Wales at a time when, apparently, she was a resident of New South
Wales.
In the present proceedings, the plaintiff, who now was a resident of Victoria, sued for
damages alleging that her injuries were caused by the first defendants’ unsafe system
of work and the negligent medical treatment provided by the second and third
defendants.
It was not in contention that the court had jurisdiction over the defendants under Pt 10
r 1A(1)(e) of the Supreme Court Rules 1970 (NSW) (see now Uniform Civil
Procedure Rules 2005 (NSW) Sch 6 para (e)). However, the defendants applied for a
stay of proceedings under Pt 10 r 6A and Pt 11 r 8 (see now Uniform Civil Procedure
Rules 2005 (NSW) rr 11.7, 12.11) on the ground that New South Wales was a clearly
inappropriate forum.
Disposition
Brereton J, allowing an appeal from Master Malpass, ordered that the plaintiff’s
proceedings in New South Wales be stayed.
“Connecting factors”
In reaching the conclusion that the defendants had established that New South Wales
was a clearly inappropriate forum, the court identified a number of relevant
“connecting factors” which were to be taken into account :
1.
England was the place of the alleged tort and, under the Australian common
law choice of law rule, English law was the applicable substantive law.
RA.PIL 06 h’out. McGregor v Potts
2
2.
English employment practices and professional standards, which would
require the evidence of expert witnesses, were central issues in the plaintiff’s case.
3.
Almost all the evidence was located in England, including eye witness
evidence.
4.
The first defendants’ liability insurance provided cover only in respect of
proceedings in the United Kingdom.
5.
The first and third defendants would suffer considerable prejudice in their
professional practices if the proceedings in New South Wales were to continue e.g. Dr
Hall (the third defendant) had a busy practice as an oral and maxillofacial surgeon
specialising in the reconstructive treatment of cancer patients and there would be
disruption to the treatment of these patients if he was required to travel to New South
Wales for a trial.
6.
A small part of the plaintiff’s damage had been suffered in New South Wales
and one medical witness resided in New South Wales. Otherwise, the case had no
connection with New South Wales and there was no evidence that the plaintiff would
be affected by dislocation or disruption if she was required to travel to England for a
trial.
7.
It was not “a matter of much significance” that the plaintiff would incur
greater costs if required to litigate in England. Conversely, the defendants would
incur greater costs if required to litigate in New South Wales.
Judgment extract
In the course of his judgment, Brereton J made the following observations in relation
to the principles of forum non conveniens:
42. ... These principles, as authoritatively stated by the High Court of
Australia in Voth [v. Manildra Flour Mills (1990) 171 CLR 538], were
summarised in Henry [v. Henry (1996) 185 CLR 571] at 586-587, as follows:
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”. ...
43. ... 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. ...
RA.PIL 06 h’out. McGregor v Potts
3
73.
In my opinion, the balance of the “connecting factors” in this case was
such that, without more, New South Wales was a “clearly inappropriate”
forum, so that it was to be inferred that it would be seriously and unfairly
burdensome and prejudicial to require the defendants to litigate in New South
Wales. Superimposed on the presumed vexation and oppression which arises
from being compelled to litigate in a clearly inappropriate forum, there was as
strong a case as could reasonably be made at an early stage of proceedings of
actual prejudice. ...
84. ... Analysis of the relevant “connecting factors” shows that this case has
everything to do with England and practically nothing to do with New South
Wales. Even without evidence of actual prejudice, New South Wales is a ll
clearly inappropriate forum. It follows that, once the defendants had
established so strong a nexus with the United Kingdom and so slender a nexus
with New South Wales as was apparent here, they did not additionally have to
establish actual prejudice ... .
Appeal allowed
RA.PIL 06 h’out. McGregor v Potts