Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab

Supreme Court of NSW|2016-12-06|Before: Campbell J

ex tempored Judgment- revised

The plaintiff, who I will refer to as the employer, is a defendant in proceedings in the District Court brought by the defendant, who I will refer to as "the worker."
The worker's proceedings are for damages for personal injury arising out of an accident which occurred in the course of his employment with the employer at a work site on Curtis Island off Gladstone in the State of Queensland.
The worker commenced work with the employer on 10 July 2013 as a tradesman painter. He alleges his injury occurred on 16 January 2014 when he was working with some fellow employees rolling up a tarpaulin.
There is no issue that the lex loci delicti is the law of Queensland and that the plaintiff's entitlement to damages, if any, are modified and informed by the provisions of the Workers' Compensation and Rehabilitation Act 2003 (Qld).
The employer by summons seeks relief under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (Cross-vesting Act) by way of orders, ultimately, transferring the District Court proceedings to the Supreme Court of Queensland.
The employer relies upon the provisions of s 5 of the Cross-vesting Act and in particular on the ground provided by s 5(2)(b)(ii)(C). That is, that the interests of justice make it more appropriate that the relevant proceedings be determined by the Supreme Court of Queensland.

Applicable principles

The principles informing the question of whether the interests of justice require transfer of the proceedings to the Supreme Court of Queensland have been authoritatively discussed by the High Court of Australia in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61.
I think it fair to say that although the justices constituted by a seven-justice bench divided on the appropriate order for the disposition of the appeal, there was no real difference between them so far as the principles informing the exercise of the power are concerned.
It should be noted at the outset that Gummow J, with whom Hayne J agreed, at 437 [71] said: "It is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof." Nonetheless, a decision about whether to "cross-vest" involves an exercise of judicial rather than administrative power.
It was also said that the decision does not, in truth, involve the exercise of a judicial discretion. Rather, it involves an evaluative decision. If the Court concludes on the evidence before it that the interests of justice point to the case being transferred, the power to transfer must be exercised. The plurality of Gleeson CJ, McHugh and Heydon JJ (who were in the minority as to the disposition of the appeal) said (at 421 [14]): "If it appears to [the court considering the application] 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 that 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 was also pointed out that applications under the Act are not like applications for a stay on the ground of forum non-conveniens: the clearly inappropriate forum doctrine does not apply. Rather, the question is which of the application State and the transfer State, if I can put it that way, is the more convenient forum. In considering such a question, all of the circumstances of the case must be considered and there will be, as it were, no bright-line test. Rather, all of the relevant factors governing the appropriateness of the competing fora will need to be weighed and assessed.
In James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353, Spigelman CJ said at 361 [7]: "To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross Vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of 'appropriate court', although other factors may need to be assessed in the process of determining where the interests of justice lie."
Although the Act proceeds on the assumption that the court in which the proceedings have been commenced is an appropriate forum, in the sense of the proceedings having been regularly commenced there, there is no presumption favouring that court over, as I have said, the transfer court. I emphasise, and repeat, that all of the considerations informing the interests of justice need to be weighed and assessed.

Submissions

I also acknowledge, as was argued by Mr Adam of counsel, who appears for the employer, that the observations of Callinan J at [248] and [259] of Schultz may be entitled to some significance. His Honour at (491, [248]) observed: "In general it is better that the laws of a State be construed by the Supreme Court of that State for the obvious reason that that Court will be more familiar with and will construe such laws on a frequent and consistent basis." At [259] his Honour pointed out that the consideration that "the events giving rise to the claim were at the time subject to, and regulated by, the law of the jurisdiction where they occurred, and in respect of the evaluation of which the court of that place should be the most experienced and efficient", was likewise of importance.
As Mr Graham of counsel, who appeared for the worker, pointed out, it is not obvious on the material before me that the resolution of the dispute between the worker and the employer will require any question of construction of the Queensland statute, as opposed to its application. He drew my attention to the provisions of part 8 of the Queensland Workers' Compensation and Rehabilitation Act, dealing with civil liability, which, as he argued, followed a pattern familiar to all Australian tort lawyers inasmuch as they adopt the Ipp Review blueprint for the modification of the law of negligence.
However, Mr Adam put greater weight on the provisions relating to the assessment of damages contained in part 9 and also in the Workers' Compensation and Rehabilitation Regulation 2014, which, it may be said, are particular to the law of Queensland inasmuch as they provide a very detailed scheme for the assessment of any general damages to which an injured worker may be entitled by reference to an injury scale value set out in great detail in schedule 9 of the Regulation. The objectives of this scheme of general damages include the promotion of consistency in awards including the making of similar assessments of general damages for different types of injury which have a similar level of adverse impact on the injured worker. Mr Adam submits, with some force, that Queensland courts are likely to be more adept at working with and applying those detailed provisions than the courts of New South Wales. To put it in practical terms, Queensland judges are likely to know the local tariff better.
However, New South Wales courts are not entirely unfamiliar with the assessment of general damages native to the State of Queensland: see Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559, as Mr Graham drew to my attention.

Decision

The basis upon which Mr Adam sought to demonstrate that the interests of justice required transfer to Queensland generally depended upon two sides of the same coin. He argued that the matter would be dealt with more expeditiously in Queensland, largely because of the familiarity of Queensland courts with the Queensland law that was to be applied. But also because of the consideration that experts in Queensland - that is to say medical experts in Queensland - would be more familiar with assessing personal injury in accordance with the Queensland injury scale value.
The employer, even though the proceedings are currently in New South Wales, has engaged a Queensland medical expert to give evidence in relation to the nature and extent of the worker's injuries and disabilities, no doubt in accordance with the Queensland scale. I acknowledge that that is an important factor in determining the more appropriate forum.
Other matters, however, are that the worker was at all times resident in New South Wales, being a fly-in fly-out worker in Queensland. The project, as I understand it, on which he was working at Curtis Island, is complete and it is unlikely that there will be any need or any utility in having a view. In any event, the process in which he was engaged at the time of the injury was an occasional process involving rolling up a tarpaulin in concert with other workers. It is hardly likely that any demonstration or experiment could recreate the circumstances that pertained at the time of the injury. It also seems that there has been a diaspora of the various workers who were engaged on the project and who may have been witnesses to the injury. They, like the worker, were fly-in and fly-out workers. It seems to be common ground between the parties that they are, or may be, spread throughout the Commonwealth of Australia. There is certainly evidence to that effect in the worker's affidavit. Their evidence can be taken, whether here or in Queensland, by telephone or audio-visual link, if that is considered to be appropriate by the trial judge when the matter is heard.
The matter has been in the District Court of New South Wales for quite some time and the various procedural steps required to be followed under the Queensland legislation have in fact been followed whilst the matter has been pending in that court. The proceedings were apparently commenced in March 2015. Case management directions have been made for the exchange of evidence and the preparation for hearing in accordance with the usual practice of the District Court. Those proceedings are currently stayed pending the disposition of this summons.
I acknowledge that Schmidt J in the Lendlease case decided that the fact that that case required the application of the Queensland law in relation to general damages and that the matter would be advanced with experts familiar with assessment under that regime, meant that the interests of justice required transfer. But that of course was a factual decision and not a matter of law or principle. Given that there is a national system of courts throughout Australia, courts of all States are familiar with the application of interstate law. Indeed, since the decision of the High Court of Australia in John Pfeiffer Pty Ltd v Rogerson, the question of the application of choice of law rules in both state and federal jurisdiction has been settled and, with respect, are of easy application.
Despite the importance of the point made by Mr Adam, relying on Callinan J's observations in Schultz, it would seem to me that there is only one factor to be weighed and assessed with all the other factors in every case. The test is what the interests of justice require, not what the applicable law is. The question of the applicable law should not be elevated to the status a trump card, decisive in every case. In my judgment, given that: there is no strong evidential connection with Queensland inasmuch as the witnesses are, on the evidence before me, spread throughout the country; the proceedings are well advanced in the State of New South Wales; the District Court is able to dispose of its civil business expeditiously; and the case is likely to be heard here in 2017; the interests of justice do not favour a transfer to the Supreme Court of Queensland.
I did raise with the parties during argument whether the consideration that the lawyers for the plaintiff have accepted the retainer on a no win, no pay basis, as is common in personal injury cases in New South Wales, was a factor favouring New South Wales as the appropriate forum. Different arguments were advanced to me about that. Although I have not found it necessary to rely on that matter in making this decision today, I am of the view that the additional expense and inconvenience that an impecunious plaintiff might find in prosecuting a case interstate is capable of being a factor relevant to the question of the interests of justice.
For these reasons, I make the following orders: 1. Under s 8(1) Jurisdiction of Courts (Cross-vesting) Act 1987, proceedings numbered 2016/224328 are removed from the District Court to this Court for the purpose of the consideration of an application under s 5 of said Act. 2. Dismiss the plaintiff's application under s 5(2) of the said Act. 3. Under s 8(3) of the said Act, remit the proceedings to the District Court to be heard and determined by it. 4. Plaintiff to pay the defendant's costs.

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