Plaintiff v Defendant

1 In this proceeding, the plaintiff claims damages pursuant to the Wrongs Act 1958 for nervous shock, a major depressive disorder and a pathological grief disorder (collectively 'Injury') allegedly suffered by her as a result of the death of her father ('deceased') from mesothelioma. The plaintiff alleges that the deceased died as a result of inhaling asbestos fibres in the course of his employment with Thermalite Pty Ltd ('Thermalite') as a lagger in Victoria from about 1965 until about 1973. The asbestos fibres were said to be in products that were manufactured by the defendant in partnership with Amaca Pty Ltd ('Amaca') in New South Wales.

2 The plaintiff was born on 30 November 1968. Until July 1973, she lived with her parents in Victoria. The family then permanently moved to the island of Zakynthos in Greece. In July 2006, the deceased was diagnosed with mesothelioma. The plaintiff's brother and sister brought the deceased to Sydney to undergo surgery due to the unavailability of suitable medical facilities in Greece. He died in Sydney on 5 October 2006.

3 The plaintiff did not accompany the deceased to Sydney because she was caring for her two children. She claims that she suffered the Injury when she was informed of the deceased's death. She has received ongoing psychiatric treatment, including hospitalisation, in Greece.

4 Shortly prior to his death, the deceased made a claim for damages against Amaca in the Dust Diseases Tribunal of New South Wales ('DDT'). Amaca cross-claimed against the defendant. The proceeding was settled by the deceased's estate after his death. Prior to the settlement, the defendant filed a reply to Amaca's cross-claim in which the defendant did 'not dispute that the Deceased suffered from malignant peritoneal mesothelioma' or that 'the Deceased's asbestos-related condition was caused by the inhalation of asbestos fibre.' The defendant also admitted that it 'knew or ought to have known that exposure to asbestos gave rise to a risk of personal injury (either of the kind suffered by the claimant or other person[al] injury) at the time of the alleged exposure.'

5 The plaintiff's brother made a claim for damages under the Wrongs Act 1958 against Amaca in the DDT on behalf of himself, his mother and his other sister. Amaca cross-claimed against the defendant. The defendant filed a reply to the cross-claim in which it made admissions similar to those set out at [4] above. On 24 February 2009, the DDT delivered judgment in favour of th[1] claimants.1

6 In February 2009, the plaintiff temporarily returned to Australia and stayed with her aunt in Queensland. She was hospitalised in Brisbane following a suicide attempt. The plaintiff made a claim for damages under the Wrongs Act 1958 against the defendant in the DDT. On 12 February 2009, the plaintiff was examined in Sydney by a Sydney-based psychiatrist, Dr Patricia Jungfer, in connection with her DDT proceeding. Dr Jungfer re-examined the plaintiff in London on 26 March 2012.

7 On 27 February 2013, the New South Wales Court of Appeal decided in Trustees of the Sydney Grammar School v Winch,[2] that the DDT lacked jurisdiction to determine claims for damages for nervous shock sustained by a dependant of a person who had died of a dust disease. As a result of that decision, on 17 September 2013, the plaintiff's DDT proceeding was struck out with no order as to costs.

8 The plaintiff commenced this proceeding on 22 May 2013. She is due to be examined by a psychiatrist, Dr David Weissman, on 21 January 2014 in Melbourne.

9 By summons filed on 20 June 2013, the defendant has applied for an order that the proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 ('Cross-vesting Act'). In the alternative, the defendant has applied for an order under r 62.02 of the Supreme Court (General Civil Procedure) Rules 2005 ('Rules') that the plaintiff provide security for costs in the amount of $80,000 for work performed up to and including a mediation.

10 For the reasons that follow, I have concluded that both of the defendant's applications should be dismissed.

Section 5(2) of the Cross-vesting Act and legal principles applicable to it

11 Section 5(2) of the Cross-vesting Act relevantly provides:

...

(2) Where -

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and

(b) it appears to the first court that -

...

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory -

the first court shall transfer the relevant proceeding to that other Supreme Court.

12 It was common ground between the parties that the applicable legal principles were authoritatively decided by the High Court in BHP Billiton Ltd v Schultz.[3] It was also common ground that those principles were accurately summarised by Robson J in Irwin v Queensland[4] in the following 17 propositions:

(a) The Act requires that the [first] court should exercise the power of transfer whenever 'it appears' that it is in the interests of justice that it should be exercised.

(b) It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.

(c) The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.

(d) The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.

(e) The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.

(f) It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. Rather the jurisdiction must be exercised when 'it appears' to the court that 'it is in the interests of justice' that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued. Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.

(g) The court should adopt what has been described as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.

(h) The appropriate court is the natural forum as determined by connecting factors to that forum.

(i) Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.

(j) In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate [or] natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.

(k) If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.

(l) Factors which may be relevant to a tortious action are:

(i) The place where the wrong occurred.

(ii) Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.

(iii) The convenience of the parties and witnesses. However in this day and age this factor may not carry substantial weight because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because [of] the provision of evidence by audio visual link.

(iv) The law governing the proceeding.

(v) The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with particular evidentiary and procedural rules hearing particular types of cases.

(vi) The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.

(m) As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort. Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.

(n) A relevant factor is whether the coincidence of the lex fori and the lex loci delicti will avoid debates concerning substantive and procedural law.

(o) The plaintiff's choice of forum by itself is not a relevant connecting factor.

(p) Each case depends on its own particular facts.

(q) The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.[5]

13 In the present case, the parties gave prominence to the following questions which I will consider in turn:

(a) where did the defendant's alleged negligence occur?

(b) where did the defendant's alleged negligence cause damage to the plaintiff and thus give rise to her cause of action?

(d) where do the parties reside and, if relevant, carry on business?

(e) where are the parties' witnesses and documentary evidence located?

14 In para 3 of her statement of claim, the plaintiff alleges that, during the course of the deceased's employment with Thermalite in Victoria, he inhaled asbestos fibres in insulation products manufactured and supplied by the defendant.

15 In para 4 of her statement of claim, the plaintiff alleges that during the deceased's employment by Thermalite, the partnership between the defendant and Amaca manufactured and supplied insulation materials containing asbestos to Thermalite in Victoria.

16 In para 5 of her statement of claim, the plaintiff alleges that the defendant's negligence caused the deceased to contract mesothelioma, from which he died.

17 In para 6 of her statement of claim, the plaintiff alleges that, as a consequence of the deceased's death, she has suffered and continues to suffer the Injury.

18 In para 7 of her statement of claim, the plaintiff alleges that the Injury was caused by the negligence of the defendant. The plaintiff relies on 24 particulars of negligence. Although those particulars are prolix and repetitive, their key theme is that, notwithstanding that the defendant knew or ought to have known that exposure to asbestos fibres in its insulation products created serious health risks, the defendant did things it should not have done or omitted to do things it should have done. Of the 24 acts or omissions complained of: eight concern failure to warn users such as the deceased of the health risks; four concern continuation of the manufacture of the products; four concern inadequate research of the health risks; two concern failure to explore alternative non-asbestos products; one concerns manufacture and supply of the products; one concerns failure to withdraw the products; one concerns failure to make inquiries about the health risks; one concerns failure to promote safe practices in relation to the use of the products; one concerns inducing customers to purchase the products; and one concerns failure to act on internal warnings about the health risks.

20 The defendant submitted that all of the alleged negligent acts and omissions occurred in New South Wales. According to the defendant, this applies not only to the manufacture of the allegedly harmful asbestos products but also to the alleged failure to warn the deceased, as any warning would logically have taken the form of warning labels on the packaging of the products. As negligence was one of the key issues in dispute and as the evidence relating to that issue was located in New South Wales, it was said that the Supreme Court of New South Wales was the most appropriate forum.

21 The plaintiff submitted that, in substance, her claim against the defendant was that, due to its negligent failure to warn the deceased of the dangers associated with its asbestos products, the deceased died as a result of inhaling asbestos fibres from those products, and that she sustained the Injury upon learning of the deceased's death. According to the plaintiff, the critical location in relation to the defendant's negligence was Victoria, where the deceased inhaled the asbestos fibres, rather than New South Wales, where the asbestos products where manufactured. That was because, so it was said, those products were not defective in the sense that something went wrong in the manufacturing process; rather, they were dangerous due to the defendant's failure to warn of the dangers of inhaling the asbestos fibres in those products.

22 Both parties relied upon Ewins v BHP Billiton Ltd,[6] in which the defendant ('BHP') was successful in its application to have the proceeding transferred to the Supreme Court of South Australia. Ewins, who suffered from mesothelioma, had brought a claim in negligence in the Supreme Court of Victoria. He claimed that he had been exposed to asbestos materials during his employment with BHP in South Australia. Ewins continued to reside in that State. At the time of hearing the application, his life expectancy was approximately six months.

23 Gillard J stated that while this Court's jurisdiction had been validly invoked, it was clear that Ewins' cause of action arose in South Australia and the law of South Australia applied.[7] His Honour reviewed a series of judicial decisions concerning s 5(2)(b)(iii) of the Cross-vesting Act, observing that the Act does not clearly identify the relevant matters to be taken into account.[8] Nonetheless, the cases have established a number of factors which are relevant.[9] Gillard J's summary of those factors was repeated by Robson J in Irwin, in proposition (l) cited at [12] above.

24 In Ewins, factors which were found to support the transfer of the proceeding to South Australia included that: the tort occurred in that State; it was Ewins' place of residence; BHP had offices and carried on business there; and Ewins was being treated by doctors in that State.[10] Gillard J was not prepared to place weight on the location of witnesses who would give evidence as to liability, or the location of a medical practitioner engaged by BHP to prepare a report. His Honour stated that a costs comparison was of little weight, unless it could be established that costs would be grossly disproportionate, and was not prepared to find that the costs of bringing the proceeding would be much greater in Victoria than in South Australia.[11] Similarly, his Honour did not place any real weight on the location of the lawyers for either party.[12]

25 The main factor relied on by Ewins in support of continuing the proceeding in Victoria was the proposition that the case could be determined more quickly in this Court than in the Supreme Court of South Australia. While Gillard J accepted that the latter did not have the proven 'track record' of this Court, his Honour was satisfied that the Supreme Court of South Australia would nevertheless be able to provide the same level of efficiency and expedition.[13]

26 In addition to Ewins, the plaintiff placed particular reliance on Amaca Pty Ltd v Frost,[14] in which the New South Wales Court of Appeal found that Frost was precluded from bringing a proceeding in an Australian court. While employed as a lagger in New Zealand, Frost had been exposed to asbestos fibre in insulation products manufactured in New South Wales by Amaca. Frost had subsequently migrated to Australia, where it became apparent that he had contracted asbestos related diseases. The principal issue for the Court of Appeal was whether the place of the tort was New Zealand or New South Wales. Frost's potential entitlement to compensation, were he ultimately successful, would have been much more significant in New South Wales than in New Zealand.

27 Spigelman CJ, with whom Santow and McColl JJA agreed, emphasised that courts must look beyond 'a prolix smorgasbord of particulars' and must focus on issues of substance and identify the true nature of the cause of action.[15] His Honour stated that:

Expressed, as they necessarily must be expressed, at a high level of generality, the authoritative tests for determining the place of a tort are to identity the place:

• Which gives the plaintiff cause for complaint (Jackson v Spittall).
• Where in substance the cause of action arose (Distillers Co (Biochemicals) Ltd).
• Where the act or omission assumes significance (Voth).

Each of these tests will lead to the same result. The common theme is a concern with substance not form.[16]

28 In a case in which goods are manufactured in one locality with a view to their distribution in another locality, particular weight must be given to the place where the act was directed, rather than to the place where it originated.[17] Spigelman CJ found that the simple act of manufacture of the insulation products was not the relevant act of Amaca in Frost. His Honour said:

The product was inherently dangerous, in the sense that it could not be safely used without special precautions. It was not, however, defective in the sense that something went wrong in the manufacturing process. It was always intended that the product would be distributed in New Zealand. The respondent, to whom the duty was owed, was always located in New Zealand.[18]

29 The Court of Appeal concluded that the place of manufacture was not the place of the tort. The breaches of duty admitted by Amaca were breaches of a duty to a person in New Zealand. The element of causation occurred in New Zealand. As a matter of substance, the place where the cause of action arose was where Frost was exposed to the risk, that is, New Zealand.[19]

30 Consistent with Ewins and Frost, if this were a proceeding by the deceased prior to his death against the defendant, the place that would give the deceased cause for complaint and the place where the defendant's alleged acts or omissions would assume significance, would be Victoria. That is because it was in Victoria that the defendant's alleged failure to warn the deceased of the dangers of using its asbestos products resulted in his inhaling asbestos fibres and contracting mesothelioma.

31 In my opinion, the fact that this is a proceeding by the plaintiff rather than the deceased does not diminish the significance of Victoria to the plaintiff's cause of action. It is true that, unlike the deceased's cause of action, the plaintiff's cause of action did not accrue upon the deceased contracting mesothelioma but when she suffered her Injury upon learning of the deceased's death. Nevertheless, for the reasons explained in Frost, the place where the deceased inhaled the asbestos fibres without being warned by the defendant of the dangers of doing so is more significant to the plaintiff's cause of action than the place where the asbestos products were manufactured.

32 Accordingly, this important consideration supports the plaintiff's contention that this Court is the most appropriate forum.

33 The defendant submitted that two causation issues arose from the statement of claim. The first issue related to the place at which the defendant's negligence was said to be causally relevant to the plaintiff's cause of action. That place was said to be New South Wales, where the alleged negligence took place. The second issue related to the place at which the event which caused the Injury took place. That place was said to be Sydney, where the deceased died. The defendant contended that the plaintiff's cause of action accrued in Greece where the Injury took place. Overall, according to the defendant, causation issues pointed strongly to the Supreme Court of New South Wales being the most appropriate forum.

34 The plaintiff submitted that, in substance, the defendant's negligence which caused her Injury took place in Victoria where the deceased contracted mesothelioma. According to the plaintiff, the fact that the deceased died in Sydney and the fact that she learnt about the death while living in Greece are fortuitous and immaterial. If the deceased had died in Paris, so it was said, that fact would not make that city the most appropriate forum for the plaintiff's claim. Further, according to the plaintiff, the fact that the Injury occurred in Greece did not support the defendant's contention that the Supreme Court of New South Wales is a more appropriate forum than this Court.

35 I accept that the fact that the deceased died in Sydney and the fact that the plaintiff suffered her Injury in Greece are relevant considerations. In my opinion, however, those facts do not have the same significance for the plaintiff's claim as her allegation that the deceased died - and she suffered her Injury - as a result of the deceased inhaling asbestos fibres while using the defendant's asbestos products in Victoria without being given appropriate warnings by the defendant. The place of the tort is Victoria rather than New South Wales.

36 These considerations support the plaintiff's contention that this Court is the most appropriate forum.

37 The defendant submitted that the law governing the proceeding was either the law of New South Wales, where the alleged negligence took place and the deceased died, or the law of Greece, where the plaintiff suffered her Injury. It submitted that the Supreme Court of New South Wales was the most appropriate forum to apply the law of New South Wales, including the Civil Liability Act 2002 (NSW), which differs in some respects from the Wrongs Act 1958. The defendant conceded that there were no material differences between the common law of negligence of Victoria and the common law of negligence of New South Wales.

38 The plaintiff submitted that the law governing the proceeding is the law of Victoria because it was in Victoria that the events which in substance gave rise to her cause of action occurred. In support of this proposition, the plaintiff relied on the fact that the proceedings in the DDT by the deceased, by the plaintiff's brother and by the plaintiff herself were brought under the Wrongs Act 1958.

39 For the reasons set out at [30] to [32] and [35] to [36] above, the law that governs the proceeding is the law of Victoria. Even if the law of New South Wales were to apply, this Court would be well equipped to conduct the proceeding in accordance with that law.

40 This factor supports the plaintiff's contention that this Court is the most appropriate forum.

41 The plaintiff's residence in Greece is a neutral consideration. So is the fact that the defendant carries on business throughout Australia. The fact that the defendant's registered office is in New South Wales provides only marginal support for the defendant's contention that the Supreme Court of New South Wales is the most appropriate forum.

42 The defendant submitted that the Supreme Court of New South Wales is the most appropriate forum because that was the location of its witnesses and documents, the medical witnesses and documents relating to the deceased and the only Australia-based doctor who has examined the plaintiff (Dr Jungfer). The defendant contended that the plaintiff's location in Greece and the presence of medical records relating to her treatment in Queensland were either neutral factors or favoured New South Wales.

43 The plaintiff submitted that it was unclear whether any of the defendant's employees would be required to give evidence and, in any event, those employees could, with relative ease and minimal expense, travel to Melbourne to give evidence or give evidence by audio-visual link. The same was said to apply to Dr Jungfer. The plaintiff also submitted that documentary evidence could be brought to Melbourne cheaply and efficiently and that the circumstances and causes of the deceased's death were unlikely to be disputed. The plaintiff relied on the fact that Dr Weissman is located in Melbourne.

44 The location of witnesses and documentary evidence provides only limited support for the defendant's contention that the Supreme Court of New South Wales is the most appropriate forum.

45 Subject to the defendant's contention summarised at [37] above, it was common ground that both this Court and the Supreme Court of New South Wales are well equipped to conduct the proceeding and that neither would have any particular institutional advantage or disadvantage in doing so.

46 I have noted, but have not given any weight to, the fact that the plaintiff lived with the deceased in Victoria during the period in which the deceased was being exposed to asbestos fibres.[20]

Overall assessment: this Court is the most appropriate forum

47 The authorities require this Court to adopt a 'nuts and bolts' management decision as to which Court, in the pursuit of the interests of justice, is more appropriate to hear the substantive dispute between the parties. The Court must weigh up the connecting factors to this forum and New South Wales and determine which is the natural forum.

48 While some of the connecting factors favour the Supreme Court of New South Wales, the most significant factors, namely those discussed at [14] to [40] above, are connected to Victoria and clearly support this Court as being the natural and most appropriate forum. Accordingly, it does not appear to me that it is in the interests of justice that this proceeding be determined by the Supreme Court of New South Wales.

49 It follows that the defendant's application for a cross-vesting order will be refused.

Application for an order for security for costs

Rule 62.02 of the Rules and legal principles applicable to it

62.02 When security for costs may be ordered

(1) Where -

(a) the plaintiff is ordinarily resident out of Victoria;

...

the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against that defendant be stayed until the security is given.

51 The principles that are relevant to an application for an order for security for costs in a proceeding for damages for personal injuries by a natural person ordinarily resident out of Victoria may be summarised as follows.

52 The purpose of a security for costs order is to protect the efficacy of the exercise of the jurisdiction to award costs.[21] The Court has a broad discretion to order security for costs, depending on the particular circumstances of the proceeding.

53 At common law, citizens - whether poor or wealthy - have a fundamental right of access to the courts.[22] In Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd,[23] Branson J stated that this fundamental right 'might be thought to be immanent in the rule of law.'[24] Consistent with this fundamental right, the courts apply the general principle that impecuniosity alone is no ground for ordering a litigant who is a natural person to provide security for costs.[25] This is particularly so in a personal injury case.[26] However, an order for security for costs may be appropriate if there are factors additional to impecuniosity.[27]

54 Although courts have shown a disinclination to order a plaintiff who is a natural person to provide security in the absence of some factor in addition to impecuniosity,[28] impecuniosity may be taken into account for the purposes of an application for security for costs. The exercise of the Court's discretion to order security for costs requires balancing the injustice that would be occasioned to an impecunious plaintiff by unnecessarily shutting the plaintiff out or prejudicing him or her in the conduct of the proceedings, and ensuring that the defendant be adequately and fairly protected against the risk of not being able to enforce a costs judgment against the plaintiff.[29]

55 Where the plaintiff is ordinarily resident outside the jurisdiction, and has no assets within the jurisdiction, an order for security for costs may be made to ensure that a fund is available within the jurisdiction against which a judgment for costs can be enforced if the plaintiff is ultimately unsuccessful in the proceeding.[30] The fact that a party bringing a proceeding resides out of the jurisdiction and has no assets within the jurisdiction is a circumstance of great weight in determining whether an order for security for costs should be made.[31]

56 Considerations which have been found to be relevant to the exercise of the discretion whether to order security for costs include:

• the prospects of success in the proceeding, subject to the practical circumstance that the Court will generally not be required to investigate in considerable detail the likelihood or otherwise of success in the action;

• whether an order for security for costs would preclude the plaintiff from pursuing the claim;

• the financial position of the plaintiff, and if the plaintiff is impecunious, whether that impecuniosity arises out of the wrongful conduct alleged against the defendant;

• the timing of the application, namely that it should be brought promptly; and

• the difficulty of enforcing a costs order in an overseas jurisdiction.[32]

57 The stultification of proceedings is recognised as a powerful factor to be taken into account when determining whether an order for security is appropriate.[33]

58 The defendant adduced evidence establishing that the plaintiff does not own any land in Victoria and is not an officer of any company registered in Australia. As the plaintiff has lived permanently in Greece since 1973, it can be safely inferred that she does not own any assets in Victoria.

59 In relation to an appropriate amount of security for costs, the defendant relied on an affidavit of a costs consultant, Ms Jennifer Young. Ms Young deposed that the defendant's costs taxed on a standard basis for work done up to and including a mediation would amount to $94,032.04, that a further amount of $69,351.58 would be incurred for preparation for trial and that a further amount of $164,008.85 would be incurred at trial. The defendant sought an initial order for security for costs in the amount of $80,000 for work done up to and including a mediation, with leave being reserved for the making of applications for further security for costs.

60 The plaintiff did not swear an affidavit in opposition to the defendant's application for an order for security for costs. However, her solicitors swore affidavits exhibiting various documents, including documents relating to the plaintiff's DDT proceeding. In the plaintiff's sworn statement of particulars in her DDT proceeding, which was dated 8 May 2012, the plaintiff set out details of her personal circumstances and the effects of the Injury on her financial position and her day to day activities.

61 The picture painted by the plaintiff in the statement of particulars is of a serious psychiatric illness which has severely incapacitated her and deprived her of her enjoyment of life and the ability to engage in normal daily activities, including looking after her children, her home and herself. The plaintiff claims that until she sustained the Injury, she worked as a secretary in a notary's office earning a salary of €1,000 and €200 in tips per month. After sustaining the Injury, she worked 'sporadically' and ceased work entirely in July 2008.

62 In the statement of particulars, the plaintiff claims that her inability to work and the poor economic circumstances in Greece have made it difficult for her and her husband to cope financially. She refers to a struggling 'family business' in which her husband and brother work. She also states that the family finances have been strained by her medical expenses and by repairs to what she described as 'our house' that became necessary after an earthquake in 2006. There is a suggestion that the family's savings have been depleted.

63 The reference to 'our house' in the statement of particulars is ambiguous. While it may be inferred from it that the plaintiff and her husband own a home in Zakynthos, no information is provided about the nature of the property and its value or whether it is subject to a mortgage. What is clear, however, is that the plaintiff considers that she is in a parlous financial position; that this is due to her Injury which was caused by the defendant's negligence; and that the parlous financial position will continue into the foreseeable future.

64 The plaintiff's Sydney-based solicitor has sworn an affidavit in which she stated that she was instructed by the plaintiff that 'if this Honourable Court grants the application for security for costs this will stultify the Plaintiff's ability to pursue the proceedings further.'

65 The plaintiff's Melbourne-based solicitor swore an affidavit in which she made some brief observations about why she considers that the calculations in Ms Young's affidavit are excessive.

66 Neither party adduced any evidence about the procedures for enforcing an Australian costs order on assets located in Greece.

67 The defendant submitted that the fact that the plaintiff was ordinarily resident outside Victoria conferred jurisdiction on this Court to make an order for security for costs pursuant to r 62.02(1)(a) of the Rules. The defendant contended that cases that have applied the general principle set out at [53] above are distinguishable because they do not deal with foreign plaintiffs.

68 According to the defendant, it can be inferred that the plaintiff would not be in a position to meet any costs order that is made against her or, at the very least, that the plaintiff's overseas residence would make it more difficult and more expensive to the defendant to enforce any costs order. In the absence of any rebuttal evidence, so it was said, the Court should accept the calculations set out in Ms Young's affidavit and make an initial order for security for costs in the amount of $80,000.

69 The defendant placed particular reliance on Li in support of its contention that an order for security for costs should be made. Li sued the State of New South Wales in the District Court of that State for damages for personal injuries allegedly sustained by him as a result of assault, battery and trespass to the person allegedly committed by two police officers in that State. Li was ordinarily resident in China and the alleged torts were committed while he was temporarily in New South Wales.

70 The New South Wales Court of Appeal held that, in ordering Li to provide security for costs in the amount of $50,000, the primary judge had applied the correct legal principles and that there was no basis for interfering with the exercise of her discretion. The Court summarised the primary judge's findings on some of the relevant considerations as follows:

Of the respective factors considered by the primary judge, her Honour: proceeded on the basis that the claim was bona fide with a reasonable prospect of success; accepted Mr Li's evidence and found that he was impecunious, but declined to find that the State had caused his impecuniosity; accepted that Mr Li said he could not afford to pay (or borrow) the amount sought as security for costs (and seems thereby to have accepted that the proposed order would or would be likely to stultify the proceedings); found that there was a delay between January and August 2012 in the bringing of the application, in which period Mr Li would have incurred legal costs; and noted that a party seeking to enforce an Australian judgment in China would need to re-litigate its case on the merits in that jurisdiction.[34]

71 In the present case, the plaintiff submitted that no order for security for costs should be made principally for the following reasons:

(a) this Court should apply the general principle set out at [53] above;

(b) the plaintiff was impecunious and her impecuniosity was caused by the defendant's negligence;

(c) the plaintiff had a strong case against the defendant;

(d) an order for security for costs would stultify the plaintiff's ability to pursue this proceeding; and

(e) the defendant did not seek an order for security for costs in any of the DDT proceedings.

72 The plaintiff sought to distinguish Li on the basis that the primary judge in that case did not accept that Li's impecuniosity was caused by the alleged tortious conduct of the State of New South Wales. The plaintiff also contended that the cases upon which Li relied involved commercial organisations rather than natural persons seeking damages for personal injuries.

73 In my opinion, while the plaintiff's foreign residence engages this Court's jurisdiction to make an order for security for costs, such an order should not be made in the circumstances of this case. My reasons are set out below.

74 First, the plaintiff's claim has reasonable prospects of success. The defendant eschewed any suggestion that the plaintiff was not genuine or that this proceeding is hopeless.

75 Secondly, while the plaintiff's asset position is unclear, it can be inferred that, since she ceased employment, she has had ongoing financial difficulties. In particular, it can be inferred that the plaintiff and her husband are struggling to meet their family's expenses from the income received by her husband.

76 Thirdly, I accept that the plaintiff's financial difficulties have arisen as a result of her Injury. If she establishes that the defendant was negligent, she has reasonable prospects of establishing that her Injury and the resulting financial difficulties were caused by the defendant.

77 Fourthly, I accept the defendant's submission that the assertion by the plaintiff's solicitor that the making of an order for security for costs would stultify the plaintiff's ability to pursue the proceeding was not made by the plaintiff herself on oath and did not refer to any supporting evidence. However, on the basis of the plaintiff's financial position as set out in the statement of particulars, it can be inferred that the making of an order for the provision of security for costs would cause the plaintiff great hardship and would preclude her from pursuing this proceeding.

78 Fifthly, the defendant correctly submitted that the general principle set out at [53] above cannot be applied with equal force to a natural person who is a foreign resident due to the competing principle set out at [55] above. Nevertheless the circumstances of a particular case involving a foreign resident may render the principle set out at [53] particularly apt. In my opinion, this is such a case. The plaintiff appears to be an extremely vulnerable person whose mental health is precarious. It is in the interests of justice that she be able to pursue her claim against the defendant rather than being denied access to a legal remedy from this Court through an order for security for costs.

79 Finally, Li is distinguishable because of the absence of a finding by the primary judge in that case that Li's impecuniosity was caused by the allegedly tortious conduct of the State of New South Wales. In addition, in that case, unlike the present case, there was specific material before the primary judge which enabled her to find that there would be significant difficulties in enforcing a costs order in China.

80 My conclusion that no order for security for costs should be made means that it is not necessary for me to consider the appropriateness of the calculations in Ms Young's affidavit. I note, in passing, that those calculations were based on instructions which relied on inaccurate assumptions about the likely course of the proceeding and which resulted in the calculations being inflated. For example, the instructions assumed that third party proceedings would be issued and disregarded the likelihood that the defendant would repeat admissions it made in the deceased's DDT proceeding.[35] If I had been persuaded to make an order for security for costs, I would have ordered security for an amount that was significantly less than $80,000.

81 For the above reasons I will order that both of the defendant's applications be dismissed. I will hear from the parties on the precise form of the order to be made by this Court and on the question of costs.

[1] Pastras v Amaca Pty Ltd [2009] NSWDDT 3 (24 February 2009).

[2] [2013] NSWCA 37; (2013) 83 NSWLR 80.

[3] [2004] HCA 61; (2004) 221 CLR 400.

[4] [2011] VSC 291 (27 June 2011) ('Irwin').

[5] Irwin [2011] VSC 291 (27 June 2011) [14] (citations omitted).

[6] [2005] VSC 4 (12 January 2005) ('Ewins').

[7] Ewins [2005] VSC 4 (12 January 2005) [6], [47].

[8] Ewins [2005] VSC 4 (12 January 2005) [24].

[9] Ewins [2005] VSC 4 (12 January 2005) [29].

[10] Ewins [2005] VSC 4 (12 January 2005) [39].

[11] Ewins [2005] VSC 4 (12 January 2005) [39].

[12] Ewins [2005] VSC 4 (12 January 2005) [39].

[13] Ewins [2005] VSC 4 (12 January 2005) [43]-[47].

[14] [2006] NSWCA 173; (2006) 67 NSWLR 635 ('Frost').

[15] Frost [2006] NSWCA 173; (2006) 67 NSWLR 635, 642 [23]-[24].

[16] Frost [2006] NSWCA 173; (2006) 67 NSWLR 635, 644 [38].

[17] Frost [2006] NSWCA 173; (2006) 67 NSWLR 635, 644-5 [41].

[18] Frost [2006] NSWCA 173; (2006) 67 NSWLR 635, 645 [43].

[19] Frost [2006] NSWCA 173; (2006) 67 NSWLR 635, 645 [44].

[20] See [1]-[2] above.

[21] Li v New South Wales [2013] NWSCA 165 (7 June 2013) [20] ('Li').

[22] Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 1400 (1 November 2004) [19] ('Airtourer').

[23] [2004] FCA 1400 (1 November 2004).

[24] Airtourer [2004] FCA 1400 (1 November 2004) [18].

[25] Airtourer [2004] FCA 1400 (I November 2004) [18]-[22].

[26] De Groot v Nominal Defendant [2004] NSWCA 88 (26 March 2004) [29]-[30].

[27] Airtourer [2004] FCA 1400 (I November 2004) [21].

[28] Knight v Beyond Properties Pty Ltd [2005] FCA 764 (10 June 2005) [32].

[29] Li [2013] NSWCA 165 (7 June 2013) [32].

[30] Li [2013] NSWCA 165 (7 June 2013) [22].

[31] Li [2013] NSWCA 165 (7 June 2013) [18], [33].

[32] See, eg, Gartner v Ernst & Young [No 3] [2003] FCA 1437 (8 December 2003) [10]; Li [2013] NSWCA 165 (7 June 2013) [20]-[24].

[33] Li [2013] NSWCA 165 (7 June 2013) [46].

[34] Li [2013] NSWCA 165 (7 June 2013) [14].

[35] See [4] above.