As set out in an Amended Statement of Claim filed on 21 May 2021, the plaintiff seeks damages from the defendant, the Trustees of the De La Salle Brothers, arising out of sexual assault and abuse alleged to have been perpetrated upon him by a number of persons in 1997, whilst he was a resident of the facility known as BoysTown Beaudesert in Queensland.
The defendant has not yet filed a defence.
The matter comes before me today for the hearing of a motion filed by the defendant on 5 July 2021, seeking an order that the proceedings be transferred to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("the Act").
Michael Fordham SC appears with Callan O'Neill for the defendant on the application. John Ryan of counsel appears for the plaintiff.
The plaintiff opposes the application.
[2]
Principles to be applied
The defendant seeks an order for transfer pursuant to s 5(2) of the Act. As set out in s 5(2), where a proceeding is pending in this Court (being these proceedings) and it appears to the Court that, having regard to the interests of justice, it is more appropriate that the proceedings be determined by another Supreme Court, this Court shall transfer the proceedings to that other Supreme Court.
The relevant principles and purpose underpinning the cross-vesting legislation in Australia were summarised by Street CJ in Bankinvest AG v Seabrook: [1]
"The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice. To describe it as a judicial determination, should not be permitted to obscure the real purport of the decision. The determination must, of course, be made with full regard to principles governing an adjudication. But, in its effect, an order granting or refusing a transfer is an administrative decision."
See also Seven Network (Operations) Limited and Anor v Amber Harrison. [2]
In BHP Billiton Limited v Schultz [3] the High Court emphasised that the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for a transfer under s 5 of the Act is brought upon the hypothesis that the jurisdiction of the Court to which the application is made has been regularly invoked.
If it appears to that Court that it is in the interests of justice that the proceedings be determined by another designated Court, then the first Court shall transfer the proceedings to the other Court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised.
It is not necessary that it should appear that the first Court is a clearly inappropriate forum. It is both necessary and sufficient that, in the interests of justice, the second Court is more appropriate.
[3]
The Defendant's Contentions
The defendant contends that the Supreme Court of Queensland is a more appropriate court. In support of its application, the defendant relies on two affidavits of its solicitor, Martin Slattery, dated 2 July and 2 August 2021.
The defendant identifies a number of reasons why the proceedings should be transferred to the Supreme Court of Queensland, including that:
1. the events the subject of the proceedings all occurred in Queensland;
2. the law which must be applied is the law of Queensland;
3. the conduct for which the defendant is said to be vicariously liable occurred in Queensland;
4. the alleged breach of statutory duty is in respect of a Queensland statute;
5. pre-litigation steps were initially taken in Queensland pursuant to the Personal Injuries Proceedings Act 2002 (QLD) ("PIPA");
6. there are potentially twelve other sets of proceedings relating to BoysTown Beaudesert that have been commenced in the Supreme Court of Queensland, and another twenty-five which are in the PIPA pre-litigation phase;
7. there is no meaningful connection between the proceedings and New South Wales; and
8. there is no meaningful forensic disadvantage advanced by the plaintiff for resisting the transfer.
Not all of those matters would necessarily be persuasive but they are certainly relevant. Further, as set out in the affidavits of Mr Slattery, the defendant originally sent a notice of contribution to Crown Law Queensland, giving notice of an intention to join the State of Queensland in due course. At this stage, the notice of contribution is merely part of the pre-litigation PIPA process.
The defendant identifies a number of persons who it will be seeking to call who live in Queensland. Further, the defendant emphasises that the plaintiff does not live in New South Wales and suggests that there is no real connection with New South Wales, other than the fact that the plaintiff's solicitors operate out of Sydney, and that the order or institution constituting the defendant is based in New South Wales.
In those circumstances, the defendant submits that a more appropriate forum, in accordance with the interests of justice, is Queensland.
[4]
The Plaintiff's Contentions
The plaintiff relies on two affidavits of his solicitor, Gregory Choat, dated 23 July and 24 August 2021. Mr Choat says that he formed a view that New South Wales was the more appropriate forum, having regard to the nature of the proceedings, and the role and significance of the institution (which is based in New South Wales) to the outcome in the proceedings.
He identifies and the plaintiff submits that New South Wales is the appropriate forum, based on the following matters:
1. the lex loci delicti is reasonably arguably that of New South Wales;
2. the defendant has at all times been operating in and from New South Wales, including the superiors of the order who oversaw BoysTown Beaudesert;
3. both the plaintiff's and the defendant's lawyers are based in Sydney;
4. the plaintiff himself is based in South Australia, and the jurisdiction most suitable to his lawyers is therefore one that is suitable to him;
5. one of the witnesses, Mr Firman, lives in Victoria and another, Mr Payne, lives in Sydney; and
6. finally, the plaintiff's medico-legal expert, Professor Quadrio, is based in Sydney.
Mr Choat says that,in reality, most of the witnesses come from outside of Queensland, including medical professionals, lay witnesses, the plaintiff, the plaintiff's partner, and the medico-legal experts.
Further, the plaintiff submits that continuing with the proceedings in this Court, will result in a more just, quick and cheap resolution. The plaintiff says that the proceedings are well advanced, albeit the defendant has not yet filed a defence.
Further, the plaintiff raises a concern as to what might happen if the matter is transferred back to Queensland, having regard to the PIPA provisions.
There was some uncertainty at the outset of the hearing as to whether the defendant would be taking issue with non-compliance with PIPA, should the matter be transferred to Queensland.
Mr Fordham pointed to correspondence and Mr Slattery's affidavits to confirm that no issue would be taken about any non-compliance with PIPA. I clarified what that meant. I understand that the plaintiff will still be required to undertake the PIPA process but no issue will be taken with the earlier abandonment of the process or any time constraints.
The plaintiff says that transferring the matter to Queensland will likely cause a delay in the resolution and finalisation of the proceedings. Mr Ryan submits that ordinarily, in this type of matter, the parties might proceed to mediation in the next three months or so, and that would not occur if the matter is transferred to Queensland.
[5]
Determination
The events the subject of these proceedings occurred in Queensland. At least for the purposes of this application, the law of Queensland applies in the substantive hearing. Those two factors do not necessarily dictate that the proceedings should be heard in Queensland but they are factors to be considered and which should be given weight in determining whether it is more appropriate that the proceedings be heard in Queensland.
Having regard to the very early stages of the matter, it is difficult to determine which witnesses might be called. The plaintiff provides a list of witnesses identifying quite a number who are not in Queensland. The defendant provides its own list identifying a number that are in Queensland.
In the end, the current location of witnesses is a point which is neutral because it is entirely unclear which of those witnesses might be required to provide evidentiary statements, which of those witnesses might be required for cross-examination, and indeed the issues at this stage are entirely unclear because the defendant has not filed a defence.
The fact that the plaintiff lives in South Australia might also be viewed as a factor which is neutral. It does not seem to me that plaintiff's view or instructions that he would like the case to remain in NSW should be given too much weight.
Whilst I acknowledge and Mr Fordham acknowledged that all of these cases impose considerable stress and anxiety on a person such as the plaintiff, I do not consider that the fact that the plaintiff may prefer his case to be in a jurisdiction where he does not live is particularly significant.
Further, unlike in Rowe v Queensland State Government, [4] the plaintiff does not submit that any change in forum will alter his relationship with his lawyers. In Rowe, Harrison J observed that litigation of this kind necessarily deals with a subject matter that is distressing and sensitive and the conduct of litigation usually requires the development and maintenance of a close relationship between plaintiffs and their legal advisors. That much is uncontroversial and can be said about this case.
However, in Rowe his Honour noted that the uncontested position was that the plaintiff would be required to obtain alternative representation if the matter was transferred to Queensland. That was an important factor in his Honour's determination not to transfer the matter. No such factor exists in this case. Further, as is well known, most civil cases have been determined during this pandemic through the use of audio-visual links ("AVL").
The Court has adapted to hearing evidence through AVL. No longer is the particular address of a witness of as much significance in determining what may happen with the case.
As such, the current address of witnesses and how that may impact upon their ability to give evidence does not seem to me to be a significant factor in determining whether Queensland is a more appropriate forum.
Having said that, it is significant that if this matter is transferred to Queensland, the plaintiff will be required to continue to pursue the PIPA process. According to Mr Fordham, that will involve some further collation of information, followed by a mandatory conciliatory conference, that is, a settlement conference, probably by the end of this year.
As I understand the process, it is not until that conference has been undertaken, and all information has been provided, that the proceedings can be pursued in the Supreme Court of Queensland. Mr Ryan, on behalf of the plaintiff, points to the delay that this may cause.
However, I take a different view. If all matters remain in issue, it is unlikely that this matter will be listed for hearing until 2023. That is because by the time the defendant files a defence and evidence is exchanged, it will probably be 2022. At least on current timing, matters are being allocated for hearing up to 10-12 months in advance.
As such, if this matter does not resolve, it will not be finalised in this Court until 2023 (assuming everything remains in issue). I doubt that, in those circumstances, transferring the matter to Queensland will result in a delay. Indeed, the PIPA process is designed to encourage resolution of matters.
In some respects, it is a bit like the work injury damages scheme in New South Wales, where parties are required to exchange all relevant information and attend a mediation to determine whether the matter can settle, prior to pursuing the proceedings in the Court. Further, the claim was originally commenced in Queensland through the PIPA process.
As Mr Fordham submits, the plaintiff signed off on two relevant documents, and the matter was proceeding through the PIPA process until such time as these proceedings were commenced in New South Wales.
I understand that the pursuit of proceedings in this Court would have been more convenient to the solicitors for the plaintiff. I understand that is what the plaintiff wants. However, having regard to my analysis of all of the factors, there are a number of significant factors which point towards Queensland being the more appropriate forum.
As I have identified, they include:
1. that the events the subject of the proceedings occurred in Queensland;
2. that the law of Queensland applies, including an allegation as to breach of a statute; and
3. most importantly, as far as I am concerned, is that the PIPA process is intended to facilitate the quick and efficient resolution of cases such as this. I thus do not accept the alternative that, by leaving the matter in New South Wales, that in some way the prospects of resolution will be increased.
In the end, I consider that it is in the interests of justice that the matter be transferred to the Supreme Court of Queensland and I make the following order:
1. The whole of the proceedings 2021/00138855 are transferred to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).
[6]
Endnotes
(1988) 14 NSWLR 711 at 713-714.
[2017] NSWSC 405 (Sackar J).
(2004) 221 CLR 400; [2004] HCA 61 at [14] (Gleeson CJ, McHugh and Heydon JJ).
[2021] NSWSC 133.
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Decision last updated: 06 October 2021