Written by Peter CarterMay 29, 2017
Matthew Dornan negotiated his employment contract with PNG labour-hire company Pacific Manpower Ltd over four months while he was working in Queensland.
A Queensland resident, he maintained a home in Brisbane to return to in his time off under the “eight weeks in and two weeks out” terms.
In August 2011 he sustained a serious injury as a consequence of having fallen down a slippery wet slope outside his donga shower.
Following initial medical treatment the next day in Lae, he was evacuated to Brisbane for surgery by orthopedic surgeon Dr Peter Brazel and subsequent rehabilitation.
Rather than bring a workers compensation claim in PNG, he filed for injury damages against the labour-hire company in Brisbane in November 2016.
That led to Manpower arguing for those proceedings to have stayed on the basis that the District Court of Queensland was a “clearly inappropriate forum”.
It contended that common sense dictated the dispute to be adjudicated in PNG where the incident had occurred.
Dornan readily conceded that Manpower had no connection with Queensland, had no offices or assets in Australia and only conducted business in PNG where its registered office was located.
At the heart of the contest was a dispute as to whether the injury was as a result of a run-of-the-mill slip and fall involving an assessment of the safety of the wet floor surface or whether it occurred during the course of an “altercation involving two girls” in which he was pushed.
Judge Julie Ryrie accepted that factual dispute might require evidence from a number of witnesses but was not persuaded that the potential their testimony might require translation or that the witnesses lacked passports, would prejudice to the company’s case were it to be determined in Queensland under PNG law.
Phone evidence even from remote locations in PNG could easily obviate any inconvenience or expense, she noted.
“Rules allow for evidence to be received by telephone and audio link from overseas or within Australia particularly where tyranny of distance and/or cost are involved,” she determined in an ex tempore judgment. “It is not at all uncommon for connections to be slow or erratic regardless of from where that evidence is being received”.
Neither was it necessary for the plaintiff to show that he wouldn’t receive justice were the matter to be heard in PNG.
Rather it was for the defendant to satisfy the court that Queensland was “clearly an inappropriate forum”.
Judge Ryrie concluded that none of the factors raised by Manpower indicated it would be “oppressive or vexatious” to have the proceedings conducted in Queensland.
The company thus failed in its assertion that Queensland was “clearly an inappropriate forum”.
The claim will proceed in the coming months in Brisbane if not settled sooner.