Home Ground Advantage: Victoria Court hears Australian FIFO worker’s claim for injuries sustained in PNG

The Victorian Supreme Court has permitted a Victorian-based ‘fly in fly out’ (FIFO) worker to continue proceedings in Victoria in relation to an injury sustained while working in Papua New Guinea (PNG) for a PNG-based subsidiary of an Australian-based, ASX-listed miner.

Background & Findings

The Plaintiff resided in Victoria and worked (on a FIFO basis) in Papua New Guinea (PNG) for Simberi Gold Company Ltd (Simberi), a wholly owned subsidiary of St Barbara Limited (St Barbara), an Australian mining company. Simberi was incorporated in PNG.

While working in PNG, the Plaintiff fell and fractured his leg and ankle. He commenced proceedings in the Supreme Court of Victoria (Court) against both Simberi and St Barbara, alleging his injury was caused by St Barbara’s negligence and breach of duty. He also alleged that Simberi and St Barbara both owed him a duty of care as occupier of the mine and breached their duties.

Both Defendants applied for the proceedings to be dismissed, stayed or struck out on the basis that PNG was the appropriate jurisdiction for the claim and/or the proceedings were an abuse of process.

Inappropriate forum

The Court identified the relevant question for determination as whether Victoria was a clearly inappropriate forum, not whether PNG was a more appropriate forum. The Court found that Victoria was not a clearly inappropriate forum.

Accordingly, the Defendants failed to establish that the claim should not be determined in Victoria. The Court was not satisfied that a trial in Victoria would be oppressive or vexatious for the Defendants. In coming to that conclusion, the Court considered the following factors:

1. The applicable law;
2. Connecting factors between Victoria, the subject matter and the parties;
3. Juridical advantage; and
4. The Defendant’s choice of insurance coverage.

The applicable law

While there was residual uncertainty as to whether Victorian or PNG law applies, the Court found it was strongly arguable that the applicable law was that of PNG. However, the question as to what the applicable law should be, was found to be a matter for the trial judge to determine. In any event, the uncertainty as to the applicable law and the possibility of PNG law being the applicable law, was not a determining factor.

The Court noted that while PNG law governed the employment agreement, the claims were in tort regarding alleged breaches of duty which may have occurred in Australia.

Connecting factors

Despite most witnesses residing outside of Victoria, the Court placed weight upon the availability of giving evidence by audio-visual link.

Photographs of the site were available and a site visit was unlikely to be necessary.

Further, the Defendants did not adduce evidence to contradict the Plaintiff’s assertions that the relevant documents were all located in Australia – such as the Plaintiff’s medical, financial and subsequent employment records.

Procedural advantage

Due to the nature of proceedings in the PNG – particularly, discovery not being available in such claims and the general requirement for evidence to be given in person – the Court found that there was a procedural advantage in issuing proceedings in Victoria.

Importantly, in PNG aspects of the Plaintiff’s claim were time barred and therefore, the Court found the Plaintiff would be significantly prejudiced if he was precluded from proceeding with an injury claim against his employer.

The Defendant’s insurance coverage

Due to the Defendants’ choice of insurance coverage (which was found to be sophisticated, including six different, bespoke policies), if a claim were commenced in Victoria, the Defendants would suffer a loss of up to PGK K5,000,000 that its coverage would otherwise have provided had the proceedings been conducted in PNG. At the time of the hearing, this was quantified at approximately AUD $1.9 million.

The Court found that the possible loss to the Defendants due to its inadequate insurance coverage was not determinative of whether Victoria was an appropriate forum. In so finding, the Court noted that the Defendants’ own insurance arrangements provided for workers to return to Australia for treatment of serious injuries, and that Australian FIFO workers would likely bring claims in Australia.

Implications

The decision highlights that, despite the best laid plans, miners engaging Australian-based FIFO workers overseas run the risk of claims proceeding in Australian courts and should plan their insurances accordingly, seeking expert legal advice where necessary to ensure adequate coverage.