Hargood v OHTL Public Company Ltd

1. [1]

   The Plaintiff was injured on 17 June 2013 at the Mandarin Oriental Hotel in Bangkok. She was attending a Thai cooking class conducted by the Hotel. She was in the process of washing her hands, at the invitation of those conducting the class, when the floorboards on which she was standing gave way beneath her. She injured her right shoulder in an attempt to save herself from falling.

2. [2]

   On 13 June 2014 she commenced proceedings against three companies which are said to be the owners, operators and managers of the Hotel. The proceedings were served on the Defendant in Thailand and Hong Kong.

3. [3]

   By a Notice of Motion filed 15 September 2014 the Defendants seek orders pursuant to Rules 11.7 and 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) that the proceedings against the Defendants be stayed on the basis that this Court is an inappropriate forum for the trial of the Plaintiff’s claim, alternatively, that no reasonable cause of action is disclosed against those Defendants.

4. [4]

   The Plaintiff now accepts that the only appropriate defendant is the First Defendant. She wishes to discontinue against the Second and Third Defendants, and all the Defendants consent to that course.

5. [5]

   Rule 11.7 UCPR provides:

6. [6]

   Rule 12.11 UCPR provides:

7. [7]

   The cause of action pleaded against the First Defendant (now referred to as “the Defendant”) is principally a simple claim in negligence with an alternative claim being breach of an implied term of an agreement involving the Plaintiff attending cooking classes conducted by the Defendant at the Hotel. However, the Plaintiff said that she will not now pursue the contract claim.

8. [8]

   So that the claim can be understood the particulars of negligence pleaded are these:

9. [9]

   The principal basis for the application for the stay is a Guest Registration Form (GRF) signed by the Plaintiff when she checked into the hotel. In a section in the document headed “Terms and Conditions” the following appeared:

10. [10]

    The Plaintiff agrees that she signed such a form but said that when she did so it was in the early hours of the morning, she had been awake for about 22 hours, she did not know of those Terms and Conditions on the document and thought that the purpose of signing the form was to provide personal and financial details, and an agreement to accept the charges for the room during the stay. She said that it was not drawn to her attention that she was signing anything else nor that her legal rights might be affected by signing the document.

11. [11]

    The three principal issues for determination are these:

12. [12]

    In order to determine if this clause formed part of the contract between the Plaintiff and the Defendant it is necessary first to determine when the contract between them was made. The Plaintiff submitted that it was made at the time the booking reservation was made. The Defendant submitted that the booking reservation simply amounted to an offer by the Defendant that was open to be accepted by the Plaintiff arriving at the Hotel and checking in. The Defendant submitted in the alternative that the completion of the GRF amounted to a collateral contract entered into with the hotel at arrival.

13. [13]

    On 3 June 2013 an email was received from the Mandarin Oriental Bangkok addressed to the travel agent acting for the Plaintiff and her family. It relevantly read:

14. [14]

    There were then set out the arrival and departure details, the number of guests, the room type and the daily rate. On the right hand side the following appeared:

15. [15]

    The document then went on to say:

16. [16]

    The Plaintiff and her family arrived at the hotel at 1:10am on 13 June 2013. She there filled out the GRF. The first section of the GRF was preceded by these words: “The following information is required in order to process your arrival”. The GRF already contained information about the flights, the arrival and departure times and matters pertaining to the room. Although the room rate was shown as zero that was because it appeared on Mr Geraghty’s GRF at the rate which appeared in the reservation.

17. [17]

    The only matters added to the Plaintiff’s GRF in handwriting were the Plaintiff’s post office box address, her date of birth and passport number.

18. [18]

    The next section of the GRF was preceded by the words: “The following voluntary information will help us to better understand and serve your needs”. Nothing was filled in although this section had been completed on Mr Geraghty’s GRF before arrival.

19. [19]

    Underneath that section of the GRF the following appeared:

20. [20]

    There was then a statement that the Hotel would not be responsible for valuables left by guests in their room with a note that a safety deposit box was available in the room or from the cashier desk. The GRF concluded by saying:

21. [21]

    The Defendant submitted that the booking made by the Plaintiff’s travel agent would be insufficient to give rise to a binding contract with the Plaintiff at the time of the reservation. Further, it could not be concluded that the booking at that time resulted in the terms of the contract between the Plaintiff and the Hotel being concluded. That was especially so where the whole of the cost of the accommodation and services were paid at checkout and there was no evidence of a deposit or other monies paid at the time of the booking.

22. [22]

    The First Defendant submitted, in the alternative, that if a contract was concluded at the time of the booking, by signing the GRF the Plaintiff had agreed to a collateral contract or a variation of the original contract that provided for additional terms and conditions relevant to the Plaintiff’s stay at the Hotel. Those additional terms and conditions included the exclusive jurisdiction clause.

23. [23]

    Where the contract was made and what its terms were must be determined by the lex fori or what Brennan J referred to as the municipal law in Oceanic Sun Line Special Shipping Company Inc v Fay [(1988) 165 CLR 197 at 225; see also Deane J at 255.

24. [24]

    In my opinion, the contract was made at the time the reservation was made and not at the time of check-in at the hotel. The parties had agreed in the reservation to all the necessary terms of the contract including the dates on which the rooms were reserved and the cost of the rooms. Significantly, the reservation of the rooms was guaranteed by the American Express card. The result of that was that if the Plaintiff did not inform the Hotel 24 hours prior to the day of arrival by 6pm a cancellation fee of one night’s accommodation would be charged. Although it was open to the Plaintiff and her party not to proceed with the reservation up to that 24 hour period, she was bound by the terms of the contract no later than that time.

25. [25]

    Moreover, part of the arrangement stipulated in the reservation was the fast track service at the airport and the airport transfer. By the time the Plaintiff and her family arrived at the Hotel the contract had been partly performed by the Hotel in accordance with the terms in the reservation and the Plaintiff at that time was bound to pay not only for one night’s accommodation but for the fast tracked service and the airport transfer.

26. [26]

    The Defendant places some significance on the statement made by the Plaintiff in her affidavit that her understanding had always been that the purpose of the forms filled out at the time of check-in, that is, the GRF, was that it provided personal and financial details and an agreement to accept charges for the room during the stay.

27. [27]

    Two things can be said about that. First, the Plaintiff’s understanding or belief about these matters cannot be determinative of either the correctness of that belief or of when the contract was formed. Secondly, the expression “agreement to accept the charges for the room during the stay” is ambiguous because the room rate had already been agreed in the reservation and “the charges for the room during the stay” could refer to other charges such as the use of the minibar or other additional features.

28. [28]

    However, even if “the charges” referred to the room rate, the fact that the hotel requires an incoming guest to sign that the rate is agreed cannot alter the fact that the agreement, here, had been reached in the reservation made at an earlier time. When these charges were paid casts no light on when the contract was made.

29. [29]

    The submission that there was a collateral contract or a variation of the contract originally made at the time of reservation must be rejected. There is no evidence of any consideration for either position, and the Defendant does not assert any such consideration.

30. [30]

    The result is that the exclusive jurisdiction notation on the GRF is not a term of the contract between the parties. The motion must be decided on the basis of general principles associated with inappropriate forum.

Clearly inappropriate forum

1. [31]

   The Defendant submits that the Supreme Court of NSW is a clearly inappropriate forum for the determination of the Plaintiff’s claim. It identifies the following matters as evidencing that it is a clearly inappropriate forum:

2. [32]

   In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 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 Company Inc at 247-248. In that passage, Deane J said this:

3. [33]

   The majority judgment in Voth discussed the various judgments in Oceanic Sun. The majority first stated briefly what was regarded as common ground between those judgments as follows (at 554):

4. [34]

   The joint judgment also said this (at 558):

5. [35]

   Finally, as to the way these matters should be resolved, the joint judgment said this (at 565):

6. [36]

   In Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 the majority judgment was considering the earlier equivalent of r 11.7 (being Pt 10 r 6A Supreme Court Rules 1970 (NSW)) that made identical provision for the Court to make an order on the ground “for this Court is an inappropriate forum for the trial of the proceedings”. The joint judgment said:

7. [37]

   The onus is on the Plaintiff to seek the stay and it is necessary for it to demonstrate that a trial in New South Wales would be productive of injustice, because it 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: Regie v Zhang at [78]; Voth at 564-565.

8. [38]

   It is now necessary to consider the matters which are said by the Defendant to be significant matters for determining that this Court is an inappropriate forum.

(c) The number and location of likely witnesses

1. [39]

   It is convenient to deal with these matters together.

2. [40]

   The Defendant is a corporation. It is registered in Thailand. Clearly enough, evidence adduced on its behalf is documentary evidence and/or evidence of natural persons.

3. [41]

   In his affidavit of 3 October 2014 the Defendant’s solicitor has identified six persons who may be called to give evidence on behalf of the Defendant. Only one of those persons was said to have witnessed the accident, Mr Narain Kiattiyocharoen who was a Thai cooking school instructor. Those three witnesses were also listed on a report made by the Assistant Development Centre Manager to the hotel manager by an email of 1 July 2013. Two other persons referred to in that email were said to have witnessed the accident and confirmed that the Plaintiff did not fall or have her foot caught in the hole. Neither of those persons is listed by the Defendant’s solicitor as a witness.

4. [42]

   The three other people mentioned by him comprised two engineers who inspected the floor afterwards and a house keeper who also saw the damaged floor afterwards.

5. [43]

   There will no doubt be some inconvenience involved in those persons giving evidence, given that they reside in Thailand. That is an inconvenience of less significance than was formerly the case. Giving evidence by audio visual link is relatively common and relatively easy to organise if that is the course that the parties prepare.

6. [44]

   In former days it was often objected that where the credit of a witness was being challenged it was neither convenient nor appropriate for evidence to be given other than in the courtroom. Whilst demeanour of witnesses cannot be discounted Judges are now familiar with research showing the dangers of relying on demeanour, and appeal courts have stressed the significance of other matters more likely to prove reliable in judging the credit of witnesses. Contemporaneous material including prior statements are better matters to test a witness’s evidence against than reliance on demeanour alone. In any event, any disadvantage in relation to testing the credit of these witnesses is likely to be that of the Plaintiff who seeks that the present proceedings remain in this jurisdiction.

7. [45]

   It may nevertheless be accepted that the domicile of these witnesses is a significant matter to take into account.

8. [46]

   On the other hand, the Plaintiff, her daughter and her husband who are likely all to give evidence, reside in Sydney. Doctors the Plaintiff has consulted and expert witnesses in relation to economic loss will also be domiciled in New South Wales.

(b) Place of the incident

1. [47]

   The fact that the incident took place in Thailand is of some significance. However, for this type of personal injuries action, it is highly unlikely that a view would be needed of the site because there is nothing especially complex about where the accident happened. As with most accidents it could be expected that, if it was necessary to look at the site, photographs would suffice.

(d) The law governing the claim

1. [48]

   The Plaintiff’s claim is in tort. Accordingly, the law governing the claim is the law of the place of the tort. Although the Plaintiff in the present Statement of Claim pleads in the alternative a breach of an implied term of a contract, Senior Counsel for the Plaintiff said that in any amended Statement of Claim filed that alternative claim will be discontinued.

2. [49]

   In Regie the joint judgment said at [81] that 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 lex causae. In Puttick v Tenon Limited (formerly called Fletcher Challenge Forests Limited) [2008] HCA 54; (2008) 238 CLR 265 the joint judgment of French CJ, Gummow, Haynes and Kiefel JJ said at [31]:

3. [50]

   It may be accepted, however, that the fact that the Court would apply foreign law is a factor of some significance which must be taken into account in determining whether New South Wales is a clearly inappropriate forum: Murakami v Wiryadi [2010] NSWCA 7; (2001) 268 ALR 377 at [150].

4. [51]

   The Defendant has led no evidence, and the onus is on the Defendant in seeking the stay, to show there is any particularly complicated aspect to Thai law in relation to negligence or that it differs in a significant way from the law of Australia or that there are concepts novel to Australian law in relation to it.

(e) The financial position of the parties

1. [52]

   This is a matter of some small significance. It may be accepted that the Plaintiff is not a litigant with few means. The whole thrust of her economic loss case demonstrates that fact. However, it would undoubtedly be a far more expensive exercise for these proceedings to be conducted in a foreign country where the Plaintiff would be required to travel with her family and not have access to her professional practice for that period of time. It is not suggested that litigating the proceedings in New South Wales would be a financial hardship on the Defendant.

(f) Juridical disadvantage

1. [53]

   The proceedings are out of time for being brought in Thailand. However, the Defendant has said that no point will be taken concerning the time of bringing such a claim in circumstances where the Defendant has led evidence that the proceedings would not be dismissed on a time basis where the limitation period is not raised as a defence. In that way, the time of bringing the proceedings is not a juridical disadvantage from proceedings brought in Thailand.

2. [54]

   In my opinion, a significant juridical disadvantage is that the proceedings in a Thai court will be conducted in the Thai language with the result that there would need to be continuous interpretation provided to the Plaintiff. It may be accepted that there is some juridical disadvantage to the Defendant because proceedings would be conducted in English in New South Wales. However, the Defendant is a corporation, the persons most affected by the use of English in the proceedings in New South Wales would be Thai witnesses, and the Defendant has engaged Australian lawyers to represent them in any event. In that way, the conduct of the proceedings in New South Wales would be a minor juridical disadvantage to the Defendant.

Is this court an inappropriate forum?

1. [55]

   The Defendant submitted that Thailand is the natural forum for the determination of the Plaintiff’s claim. The Defendant suggests that the only connecting factors to the present jurisdiction are the residence of the Plaintiff, the location of one witness on the question of liability and two witnesses on the question of damage, and the fact that part of the loss and damage was suffered in New South Wales. The Defendant suggested that none of these factors produce any compelling reason why the Plaintiff’s claim should not be heard in Thailand. However, that is not the correct test. The correct test is whether this Court is an inappropriate forum.

2. [56]

   In my opinion the Defendant has not discharged the onus of showing that this Court is an inappropriate forum. The Defendant does not show that a trial in New South Wales would be productive of injustice to it, nor that it would be seriously and unfairly burdensome, prejudicial or damaging to it. At best, there would be a measure of inconvenience by the need to the have the Defendant’s witnesses either come to Australia to give evidence or to give evidence through an Audio Visual Link. That fact, and the fact that this Court would need to decide a matter according to Thai law, are simply not sufficient to demonstrate that this Court is an inappropriate forum. It will also be apparent from the above discussion that there are certain positive reasons why this Court is an appropriate one to hear the proceedings.

Conclusion

1. [57]

   I make the following orders: