Pocock v Universal City Studios LLC

Evidence on the motion 8In her affidavit of 12 July 2012, Ms Pocock states that on 12 December 2009 she was on a tour of Universal Studios when she slipped and fell. She claims to have sustained injuries to her neck and back, lacerations, contusions and suffered psychological sequelae as a result. 9It appears to be common ground that Ms Pocock was initially treated for lacerations at Providence Saint Joseph Medical Centre at Burbank, California. 10In her affidavit, Ms Pocock says that on her return to Sydney she saw a number of medical practitioners in relation to her injuries. She attended her general practitioner, Dr Tran at his surgery at Campbelltown who referred her to a number of specialists. 11Reports of the following medical practitioners concerning Ms Pocock were served on Universal: + Dr Eng Chye Lim, radiologist + Dr Alan Sacks, radiologist + Dr Renta Abraszko, neurosurgeon and spinal surgeon + Dr Alvin Chan, radiologist + Dr John Davis, occupational medicine consultant + Dr Manohar, specialist in musculoskeletal medicine, pain medicine and rehabilitative medicine 12The reports indicate that all of these doctors are based in the Sydney metropolitan area. 13The evidence for Universal was in the form of an affidavit of Tricia Hobson, Universal's solicitor, affirmed 14 May 2012. It states that in the proceedings, Universal would need to call between four and five lay witnesses, all domiciled in California. Ms Hobson also expected that it would be necessary to retain an expert in Californian personal injury law, and that person would also be domiciled in the United States.

Whether this Court is a clearly inappropriate forum 14The hearing proceeded on the basis that the power to serve the originating process outside Australia was properly exercised pursuant to UCPR, sch 6(e), ie the proceedings are wholly or partly founded on a claim for damages suffered in New South Wales. 15Under UCPR, rr 11.7(2)(b) and 12.11(1)(a), this Court may set aside an originating process served outside of Australia on the basis that, inter alia, the court is an inapropriate forum for the trial of the proceedings. The test to be applied in determining whether it is an "inappropriate forum" is the same as the common law test of "clearly inappropriate forum": Garsec v His Majesty The Sultan of Brunei [2008] NSWCA 211; (2008) 250 ALR 268 at [59]-[60], Regie Nationale des Usines Renault v Zhang [2002] HCA 10; (2002) 210 CLR 491 at [25] considering the substantially identical predecessor provisions in the Supreme Court Rules 1970, Part 10 r 8 and Part 11 r 8. 16Every court also has an inherent or implied power to stay proceedings on the ground that it is a clearly inappropriate forum for the trial of the proceedings: CSR Limited v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345 at 391. Further, this Court has the power to stay proceedings pursuant to the Civil Procedure Act 2005 (NSW), s 67. 17The test in Australian law by which a court is to decide whether to stay proceedings that have been commenced in it is whether the court is a "clearly inappropriate forum": Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538. The test was most recently restated by the High Court in the majority judgment of French CJ, Gummow, Hayne and Kiefel JJ in Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265 at [27]: [A] defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for determination of the dispute. The reasons of the plurality in Voth [at 565] pointed out that the focus must be "upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum". (Citation omitted) 18In determining whether this is a clearly inappropriate forum, the question is whether to try the proceedings in this Court would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of being productive of serious and unjustified trouble for Universal: per Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay [1998] HCA 32; (1988) 165 CLR 197 at 247, and approved by Mason CJ, Deane, Dawson and Gaudron JJ in Voth at 564-565.

Submissions 19In support of the application, Universal submitted that it was a factor that there existed another appropriate forum for the trial of the proceedings, ie California. But it was conceded this is not determinative, and that the relevant determination is whether this Court is an inappropriate forum. 20It was also submitted that it was a significant factor that Californian law would apply to the proceedings. The law governing liability in respect of foreign torts is the lex loci delicti: Regie Nationale des Usines Renault v Zhang at [75]: Neilson v Overseas Project Corp of Victoria [2005] HCA 54; (2005) 223 CLR 331. And it was uncontentious that the applicable law governing liaility in the proceedings is that of California. 21It was also submitted in favour of granting the application that Universal's lay witnesses to the proceedings are all domiciled in California. It would impose a major financial burden and inconvenience on Universal to have them attend a trial in Australia. Universal would also not be able to enforce subpoenas on witnesses unwilling to make the journey. 22Universal also indicated that an expert witness in Californian law, domiciled in the United States, would be required and that this would impose additional cost and inconvenience. 23For Ms Pocock, it was submitted that "ten or twelve" witnesses could be required during the proceedings. They included her general practitioner and treating medical specialists, lay witnesses to the incident, and lay witnesses to give evidence of her "pre-accident employment status and pre-accident general life status", all domiciled in Sydney. There would be considerable inconvenience and expense involved in having these witnesses travel from Australia to California. 24It was also submitted that there was far less speculation about the likelihood of Ms Pocock's witnesses being required compared with Universal's prospective witnesses; at least in relation to the medical expert witnesses there were reports demonstrating their connection to the proceedings. 25It was submitted that there were only bald statements on the part of Universal about the witnesses it intended to call and that little weight should be given to its submissions concerning expense and inconvenience. 26There was some discussion about the possible use of an audiovisual link that would obviate the need for witnesses to travel either to or from California, and the associated expense and inconvenience. It was conceded for Universal that this was a possibility, although there had been no agreement between the parties. 27It was suggested by counsel for Ms Pocock that in California, actions of this nature were tried by juries and this might discount the capacity to adduce evidence via audiovisual link. Without any evidence as to the procedure in California I am disinclined to give this submission much weight. 28In light of the concessions made by Mr Campbell at the outset of the proceedings, Universal did not press its written submissions that a factor in favour of the application was that the escalator is located in California. Nor was it maintained that a relevant factor was the difficulties that may arise out of cross-claims brought against possible cross-defendants in California. 29In relation to those concessions, counsel for Universal conceded, "I would have to say that those changes have materially changed the ... weight of discretionary factors... it now becomes a more even argument with respect to expense and inconvenience."

Determination 30In dealing with this application, I have had regard to the following statement of the majority in Voth at 565: [S]ubject to one qualification, we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada (at 465), namely, that the primary judge should "be allowed to study the evidence and refresh" his or her memory of the relevant law "in the quiet [of his or her Chambers] without expense to the parties"; that he or she should not be burdened by unhelpful reference to other decisions on other facts; and "that submissions will be measured in hours and not days". The qualification is that we think that, in the ordinary case, counsel should be able to furnish the primary judge with any necessary assistance by a short, written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. "clearly inappropriate forum") grounds. 31It is relevant to determining whether this Court is an inappropriate forum that relief would be available to Ms Pocock in California: Voth at 558. But the determination does not turn on an assessment of the advantage, or otherwise, of the trial proceeding in the foreign forum. 32It is a significant factor in support of the application that Californian law will apply to the proceedings. The requirement to prove foreign law introduces additional complexity, expense and uncertainty to the proceedings, together with the risk of incorrectly applying the foreign law: per Spigelman CJ, with whom McColl and Young JJA agreed, in Murakami v Wiryadi [2010] NSWCA 7; (2010) 268 ALR 377 at [150]. (Although, it does not appear that the legal issues in these proceedings would involve any great complexity.) 33But it does not follow that simply because liability for the alleged tort is governed by foreign law it will be established that the chosen forum is inappropriate: Puttick v Tenon Ltd at [31]. Application of foreign law is supportive of the application but does not determine it. 34That Universal would suffer the financial burden and inconvenience of having witnesses attend proceedings is a relevant factor: Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 477-478 per Lord Goff cited with approval in Voth at [51]. But this is not the same scenario as the example given Campbell JA in Garsec v His Majesty The Sultan of Brunei at [141] where all the witnesses and documents were in another country. Indeed, the evidence on the application would indicate that there would be similar, if not greater, inconvenience and expense imposed on Ms Pocock if this application were to be granted. The objective of the power to stay or set aside proceedings on the basis of forum non conveniens is not simply to give Universal an advantage at the expense of Ms Pocock: Spiliada at 482 per Lord Goff, cited in Voth at 564-565. 35Having had regard to the all material on the application and submissions of counsel, I am not satisfied that it would be either seriously and unfairly burdensome, prejudicial or damaging, or result in serious and unjustified trouble for Universal if the proceedings were to be tried in this Court. I am unable to find that this Court is an inappropriate forum and therefore refuse to permanently stay the proceedings or set aside the Amended Statement of Claim. 36In the alternative, Universal has sought a temporary stay of proceedings until a statement of claim is issued by Ms Pocock articulating the concessions made from the bar table. This was opposed by Ms Pocock on the basis that it would constitute a tacit acknowledgement by the Court that the application would have succeeded, had it not been for the concessions. 37I cannot agree. The determination of this application has proceeded on the basis of the concessions made by Mr Campbell at the hearing; there has been no consideration of what the outcome would have been otherwise. It is necessary for a further amended statement of claim to give effect to those concessions before the matter can proceed, and to ensure that occurs I grant the alternative order (3) sought on the application. 38Universal sought costs of, and incidental, to the notice of motion but there were no submissions made by either party as to costs. In the light of the late filing of submissions by Universal, and the concessions made by Ms Pocock at the hearing, I decline to make an order now as to costs but reserve liberty to apply on 7 days' notice.

Orders (1)The applications to set aside the amended statement of claim and to permanently stay the proceedings are refused. (2)The proceedings are stayed until such time as a further amended statement of claim is filed and served on the defendant giving effect to the concessions made by the plaintiff. (3)The parties have liberty to apply on 7 days' notice in respect of costs.

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