Miller v Jones (No 2)

Before the Court is a notice of motion filed by the defendant seeking an order which has been pleaded in the following terms:

The order sought has been opposed by the plaintiff.

The plaintiff is a former professional rugby league footballer. The defendant is a French national who, at the material time, practiced as an Orthopaedic Surgeon at a clinic in Toulouse, France.

The plaintiff’s case may be summarised as follows.

In December 2010 the plaintiff was playing professional rugby league football in France when he suffered an injury to the Anterior Cruciate Ligament (“ACL”) of his right knee. He consulted the defendant who, on 3 January 2011, performed a reconstruction of his ACL. On 19 July 2011 the plaintiff attended the defendant for a follow-up consultation. The plaintiff alleges that on that occasion he was advised that his knee had recovered, and that he was fit to return to playing professional rugby league. The plaintiff then returned to Australia to further his career.

Upon returning to Australia, the plaintiff commenced training. When he did so, he noticed pain, instability and discomfort in his right knee. Having consulted two Orthopaedic Surgeons, a Dr Halpin and a Dr Caldwell, the plaintiff was diagnosed with a tear of the right medial meniscus. He asserts that this injury was a consequence of the negligence of the defendant in carrying out the surgery in January 2011.

Thereafter, the plaintiff underwent various surgical procedures, the last of which was a revision of the previous ACL re-construction performed by the defendant in July 2012. The plaintiff asserts that as a consequence of the negligence of the defendant in carrying out the original surgery in 2011, he has not been able to resume his career.

The plaintiff commenced proceedings against the defendant on 27 April 2015. Those proceedings are presently listed for hearing before me, with an estimate of 5 days, commencing on 21 October 2019.

On 24 August 2017 I dismissed a notice of motion filed on behalf of the defendant seeking an order that the proceedings be stayed on the basis that this court was an inappropriate forum in which to hear and determine them. [1] Whilst I acknowledged [2] that the alleged acts and omissions of the defendant which form the basis of the plaintiff’s cause of action occurred in France, I concluded that this was not determinative, and that there were a number of other matters which weighed overwhelmingly in favour of a decision to refuse a stay. They included that:

At some time after my determination (it is not clear precisely when) the defendant commenced proceedings in the Tribunal De Grande Instance in Toulouse, France (“the Tribunal”), requesting that the Tribunal:

On 7 May 2019 the plaintiff filed a motion in the Tribunal seeking a declaration that the Tribunal did not have jurisdiction to determine the proceedings which had been commenced by the defendant.

As at the present time, the proceedings remain pending before the Tribunal.

In opposing the relief sought in the notice of motion, senior counsel for the plaintiff submitted that the principles which guided my determination of the earlier motion remained relevant and applicable. Senior counsel emphasised that I had already concluded that this court was not an inappropriate forum for the resolution of the issues between the parties, and that nothing had changed since that time which should cause me to alter my view. Senior counsel submitted, in particular, that the mere fact that the proceedings brought by the defendant were pending in the Tribunal did not, of itself, render inappropriate the continuation of the proceedings brought by the plaintiff in this court.

Senior counsel also emphasised that the power to grant a stay was a discretionary one, which involved the balancing of a number of relevant factors. In addition to relying upon the same matters that guided my earlier determination, senior counsel pointed out that the plaintiff’s cause of action arose in 2011, that the proceedings had been commenced in this court in 2015, and that they were to be heard in October of this year. He submitted that the plaintiff, and those representing him, had spent considerable amount of time and expense in preparing the matter for hearing. All of these factors, he submitted, weighed heavily in favour of the motion being dismissed.

Finally, senior counsel for the plaintiff questioned the bona fides of the defendant’s actions in commencing the proceedings in the Tribunal at all. He submitted, in effect, that there was no proper forensic reason for the defendant having done so, and that I should conclude that it was a step taken by the defendant in an attempt to circumvent my earlier determination not to grant a stay of the proceedings.

Senior counsel for the defendant submitted that there were a number of considerations which compelled the making of the order sought. These were said to include the fact proceedings remained pending before the Tribunal, in circumstances where:

Whilst senior counsel accepted that the proceedings in this Court were commenced before those in the Tribunal, he submitted that the order of commencement of proceedings was only one of a number of matters which were relevant in determining whether a stay should be granted. He submitted that it was particularly significant that the hearing before the Tribunal was “on paper”. He also emphasised that the Tribunal was expected to hand down its judgment by the end of the year.

Finally, it should be noted that in the course of hearing the motion, senior counsel for the defendant adopted an alternative position, namely that If I determined that a stay of proceedings should not be granted, I should commence hearing the matter on the allocated date, and having heard the evidence, should defer giving judgment, adjourn the proceedings, and await the outcome of the Tribunal’s determination.

Why the defendant chose to commence proceedings in the Tribunal following my previous refusal to grant a stay of proceedings has not been the subject of any evidence before me, and has not been otherwise explained. It is, to say the least, a curious step for the defendant to have taken. Absent an explanation, there is an available inference that it was taken for the precise reason advanced by senior counsel for the plaintiff. However, it is not necessary, for the purposes of this judgment, to reach a positive conclusion that this is the case.

The power to grant an order for a stay of proceedings should only be exercised in a clear case. The onus lies on the defendant to satisfy me that this Court is so inappropriate a forum for the determination of the proceedings that the continuation of such proceedings would be oppressive and vexatious. [3] That is the same issue that I was previously asked to determine, and which I resolved in favour of the plaintiff.

Put simply, little has changed since I determined that this court was not a clearly inappropriate forum to determine the issues between the parties. The only substantive changes which have occurred since that time are firstly, that the defendant (for reasons which remain unclear) has commenced proceedings in the Tribunal, and secondly, that the proceedings have been listed for hearing. As to the first of those matters, the fact of pendency of the proceedings before the Tribunal does not, of itself, render this Court a clearly inappropriate forum for the determination of the dispute. [4] This is particularly so when the vast majority of the factors on which my previous decision was based remain applicable. As to the second, the fact that the proceedings are fixed for hearing in approximately two months is a factor which weighs heavily in favour of refusing the order sought. Accepting that this court is not an inappropriate forum, the plaintiff should not be shut out of having his proceedings heard and determined, particularly in circumstances where the cause of action arose in 2011, and the proceedings themselves were commenced in 2015.

Despite the submissions of senior counsel for the plaintiff, there is no evidence whatsoever as to when the Tribunal is likely to determine the proceedings which are pending before it. Even if there was such evidence, it would not alter my determination as to the appropriateness of this Court to deal with the matter. Should it come to pass that the Tribunal does make a determination prior to the finalisation of the proceedings in this Court, there may well be an issue as to the extent to which I am bound by that determination. However, that is not an issue which can, or should, be decided at this point. Such a decision would obviously involve a consideration of any reasons the Tribunal might publish. It would also require far more fulsome and detailed submissions than those made to me on the hearing of the current motion.

Finally, I am unable to accept the submission of senior counsel for the plaintiff that the Tribunal’s determination would “assist” this court. As I understood it, such assistance was said to be in the form of assistance as to the application of French law. My understanding is that the plaintiff is to qualify an expert in French law as part of his case. The court will therefore be provided with that assistance, as would be expected.

For all of these reasons, the order sought by the defendant should be refused.

I make the following orders: