Dornan v Pacific Manpower (PNG) Limited [2017] QDC 124

Ryrie DCJ

The plaintiff was employed by the defendant, Pacific Manpower (PNG) Limited, working in Papua New Guinea where he suffered serious injury as a result of having fallen down a wet slope outside of the accommodation unit shower.

The defendant sought to have the proceeding set aside or permanently stayed pursuant to r 16 of the Uniform Civil Procedure Rules 1999 (Qld) arguing that the Queensland court was clearly an inappropriate forum.

Discussion

Finding that the Queensland court was the appropriate forum, Ryrie DCJ reasoned as follows:

While, prima facie, that may well raise a suggestion that a Papua New Guinea court would therefore be the more natural or more appropriate forum because of that fact, coupled with, as I’ve said, a company that solely has its connection with PNG, insofar as its business, registered office and other things I’ve already referred to, it is notable here, nevertheless, that the plaintiff has given evidence by affidavit that he was in fact a resident of Queensland and was in fact working here at the time his contract of employment which was negotiated also here occurred with the said company.

Her Honour noted that due to the plaintiff’s fly-in fly-out work basis, he “kept his necessary accommodation in Queensland for that purpose, which means at all times he did not become solely “disconnected” from Queensland.” Her Honour continued, stating:

The plaintiff has also deposed that all of his medical treatment, bar seeing the local doctor in Lae, the day after the accident is said to have occurred, and before flying home to Australia, that he has since received medical treatment here in Queensland, has received physio and, indeed, surgical intervention by an orthopaedic surgeon, Dr Brazel.

As to the reception of evidence from Papua New Guinea to Queensland, Ryrie DCJ was not satisfied that this would cause prejudice to the defendant nor would it be oppressive and unfairly burdensome. Her Honour said in this regard:

… as deposed by Mr Stanfield, in his experience, the various connections between PNG and Queensland can be slow, unreliable and subject to interference which may well then impact, as he submitted in his affidavit, on this Court’s ability to assess a witness under those circumstances as to demeanour and/or credibility which would be greatly impaired.

The submissions made on this point, however, in my mind, overlook the following. Firstly, the evidence is taken and can be taken under own rules, which allow for and provide for evidence to be received by telephone and audio link from overseas or even within our own country, particularly where tyranny of distance and/or cost are involved. That is not an uncommon occurrence now in this Court. Secondly, it is not at all uncommon for connections to be slow or erratic, both when taking evidence from an overseas witness, or even here, for that matter, regardless of where that evidence is being received by the Court.

Thirdly, issues of credit and demeanour of witnesses, while I agree are significantly relevant where there’s been significant dispute between parties, as such is the case here, are not necessarily impaired because of any slow connection and the like, as stated, between the receipt of the evidence by telephone or audio link. In my mind, any trial Judge will be able to make allowances for that fact if it becomes an eventuality throughout the trial. A trial Judge will commonly deal with that and make allowances in respect of it when making any assessment in respect of demeanour and/or credibility of witnesses.

As to questions of prejudice her Honour stated that:

In light of the lack of evidence to suggest that the accommodation may well have in fact now actually changed, it is difficult, then, to accept that an expert may well be unable to provide an opinion and/or, put another way, that the defendant, due to the passage of time, would be prejudiced in obtaining the necessary expert report. It also should be said that any expert who is able to provide a report will be able to also provide his or her evidence by telephone and/or audio link, a fact not uncommon for experts in any jurisdiction – to do so from PNG if in fact one is engaged there.

Her Honour concluded by stating that the proper test was that the defendant must satisfy the court that the present court was clearly an inappropriate forum. As the defendant did not satisfy this test, her Honour found that it was desirable for the proceeding to continue in the Queensland court.

The application was dismissed, with the defendant to pay the plaintiff’s costs, assessed on the standard basis.

David Cormack – Brisbane Barrister & Mediator

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