A once-promising professional rugby league player can continue his NSW lawsuit against a French orthopedic surgeon for negligence over his treatment at a Toulouse clinic in 2011.
David Jones had asked the NSW Supreme Court to stay proceedings against him brought by former Newcastle Knights junior and inaugural Melbourne Storm under-20s captain Lucas Anthony Miller.
But Justice Geoffrey Bellew this week dismissed the application, rejecting a claim a trial held in NSW would be oppressive or prejudicial to the French national.
Miller alleges that on January 3, 2011, while carrying out a surgical procedure at Medipole Clinique Du Sport, Mr Jones negligently failed to afford him proper medical, surgical and specialist treatment.
He was playing professional football in France when injuring the anterior cruciate ligament of his right knee.
Mr Jones, who speaks fluent English, performed reconstruction surgery.
Miller alleges at a follow-up consultation in July 2011, Mr Jones told him his knee had recovered and he was fit to return to playing professional rugby league.
But when he began training back in Australia he noticed pain and discomfort and was diagnosed with a tear of the left medial meniscus.
This resulted in his undergoing various surgical procedures including a revision of Mr Jones's ACL reconstruction.
Miller claims as a result of the surgeon's negligence he has never been able to resume his career.
The surgeon's lawyers argued that holding the proceedings in France would ensure "substantially less inconvenience and expense", referring to the necessity for evidence to be given by French law experts and French medical experts.
Other contentions included that "subtleties and nuances" could be "lost" in any translation of evidence given in French.
But Justice Bellew on Thursday said all witnesses whom Miller is likely to call were Australian residents.
"Those witnesses will include expert witnesses as to (his) prowess as a footballer and the earnings which might have been available to him but for his injury".
While Mr Jones would obviously be required to travel to Australia for any hearing there was no evidence that this would cause undue disruption to him.
The judge said there also was a complete absence of evidence as to the number of French witnesses Mr Jones expected to call.
"Even if (he) does wish to call witnesses from France there is no reason why that evidence could not be given via audio visual link."