Byrne v Sowter

Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5, 8
Uniform Civil Procedure Rules 2005 (NSW), r 8.2

Cases Cited: Comino v Kremetis [2023] NSWSC 32

Category: Procedural rulings

Parties: Brooke Byrne (Plaintiff)
Ambria Sowter (Defendant)

Representation: Counsel:
A Davis (Plaintiff)
S Onitiri (Defendant)
Solicitors:
Barry Nilsson Lawyers (Plaintiff)
Blumers Personal Injury Lawyers (Defendant)

File Number(s): 2025/78594

Publication restriction: N/A

JUDGMENT

1. HIS HONOUR: Before the Court is an application for transfer of proceedings to Tasmania. Currently, proceedings for nervous shock arising from negligence are before the District Court of New South Wales and the current plaintiff, by summons, seeks for the matter in the District Court to be transferred to this Court and then to Tasmania pursuant to the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (hereinafter “the Act”).

2. The proceedings that are sought to be transferred are proceedings filed by the current defendant to the summons (hereinafter the “current defendant”) in the District Court of New South Wales, filed in Queanbeyan. The proceedings rely on the cause of action under the Motor Accident (Liabilities and Compensation) Act 1973 (Tas), arising from a motor vehicle accident in Tasmania. The current defendant, in her Statement of Claim, alleges that the plaintiff in these proceedings (hereinafter “the current plaintiff”) was the driver of a motor vehicle, registered in Tasmania, which was involved in an accident in which the current defendant’s sister was injured.

3. The current defendant’s sister (hereinafter “the deceased”) was a passenger in a second vehicle. The deceased was seriously injured in the accident. The injuries included the transection of the deceased’s spinal cord and subsequent quadriplegia. The accident occurred on 29 October 2017 and, following the injuries arising from the accident, the deceased passed away on 25 August 2019. The current defendant is the younger sister of the deceased. The current defendant sues, in the District Court of New South Wales, for nervous shock.

4. As to the nature of the allegation, the current defendant alleges in the Statement of Claim that the two cars were travelling in opposite directions and the current plaintiff’s vehicle crossed the road into the wrong side of the road. It is alleged that the current plaintiff was driving under the influence of marijuana and distracted by a mobile phone.

5. The deceased was taken to Royal Hobart Hospital in an ambulance and the injuries are particularised in the Statement of Claim as is the treatment that followed. The Statement of Claim asserts that the current defendant attended on the deceased when she was receiving treatment and rehabilitation and, in so doing, observed the deceased’s distress, pain and depression.

6. The current defendant provided care and support to the deceased and suffered nervous shock as a result of the information provided to the current defendant in relation to the accident and injuries; that which was seen, heard and otherwise observed as a result of the injuries; the current defendant’s experiences as a result of the injuries to the deceased; and the deceased’s ultimate death as a result of complications from the injuries.

7. It is alleged that the current plaintiff owed a duty of care to the deceased and that the loss and damage to the current defendant was foreseeable, being persons who are family members of road users injured as a result of the current plaintiff’s failure to take reasonable care.

8. No defence has yet been filed in relation to the Statement of Claim. Because no defence has yet been filed, it is unclear to the Court whether the current plaintiff’s negligence is in dispute in the proceedings in so far as it was the cause of the accident or the cause of death for the deceased. Further, it is unclear and/or unknown, as this stage, whether the foreseeability and/or duty of care to the current defendant, as a family member of the deceased, is in dispute.

Legislation

9. As earlier stated, the current plaintiff seeks orders pursuant to the Act. The provisions of s 5(1) of the Act do not apply as they relate only to circumstances where the Supreme Court is of the opinion that it does not have jurisdiction in relation to proceedings that may be instituted in the Supreme Court. The legislative scheme upon which the plaintiff relies for this transfer, depends upon two provisions.

10. The first provision, s 8 of the Act, allows the Court to transfer proceedings into the Court, which are before another court or tribunal; in this case, the District Court. The Court may transfer the proceedings from the District Court into this Court where the proceeding arises out of or is related to proceedings pending, relevantly, in the Supreme Court of another State and, if so transferred, there would be grounds upon which that other proceedings would be transferred to the Supreme Court of the other State.

11. If the Court were to exercise the jurisdiction conferred by s 8 of the Act to transfer into the Supreme Court the proceedings in the District Court, then the Court is able, pursuant to the terms of s 5(2) of the Act, to transfer the said proceedings to the Supreme Court of Tasmania, subject to the formation of opinions prescribed by the provision. It is appropriate for the Court to extract the particular provisions of the Act, which are in the following terms:

5 Transfer of proceedings

...

(2) Where—

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and

(b) it appears to the first court that—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court,

(ii) having regard to—

(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory,

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C) the interests of justice,

it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

(3) Where—

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of another State or of a Territory (in this subsection referred to as the first court), and

(b) it appears to the first court that—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of New South Wales and it is more appropriate that the relevant proceeding be determined by the Supreme Court of New South Wales,

(ii) having regard to—

(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of New South Wales,

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C) the interests of justice,

it is more appropriate that the relevant proceeding be determined by the Supreme Court of New South Wales, or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of New South Wales,

the first court shall transfer the relevant proceeding to the Supreme Court of New South Wales.

…

8 Orders by Supreme Court

(1) Where—

(a) a proceeding (in this subsection referred to as the relevant proceedings) is pending in—

(i) a court, other than the Supreme Court, of the State, or

(ii) a tribunal established by or under an Act, and

(b) it appears to the Supreme Court that—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Federal Circuit and Family Court of Australia or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court, or

(ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court,

the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court.

(2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court.

(3) Where a proceeding is removed to the Supreme Court in accordance with an order made under subsection (1), the Supreme Court may, if the Supreme Court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed. [1]

Principles

12. As would be expected, the application of the above legislation has been the subject of significant authority and applied on numerous occasions. The principles were extracted from a judgment of Chen J in the current plaintiff’s written submissions and the current defendant accepts the principles as adumbrated by the current plaintiff. The extract from the judgment of Chen J is in the following terms:

“The authorities dealing with the residual provision (viz., the ‘interests of justice’) are well-established. Relevantly, they may be summarised as follows:

(1) The determination of whether it is in the ‘interests of justice’ under s 5(2)(b)(iii) for proceedings to be transferred depends on what is the ‘more appropriate’ forum for those proceedings without any particular emphasis in favour of the forum selected by the plaintiff: James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [87] (‘Barry’); BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14] and [25]. (‘Schultz’). This last matter is sometimes expressed to the effect that there is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz at [25].

(2) Although it has been suggested that there is strictly no onus upon either party to persuade the Court to transfer the proceedings or not, the better view is that the applicant for transfer has to persuade the Court to make the order it seeks: Barry at 380 [100]. That is, unless ‘it appears’ that the proceedings should be determined in another court, ‘the court does not have power under the act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion’: Irwin v State of Queensland [2011] VSC 291 at [14](f).

(3) The Court must make a ‘management decision as to which Court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute’: Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714 (‘Bankinvest’); Barry at [87]; Schultz at [14] and [63]. Put slightly differently, the interests of justice are ‘concerned with the question of which jurisdiction is better placed to determine a dispute between the parties from a practical point of view’: Opes Prime Stockbroking Ltd (In Liq) (Scheme Administrators Appointed) v Stevens [2014] NSWSC 659 at [25].

(4) Rather than the selection of the most advantageous, or least disadvantageous, forum for one of the parties, the ‘interests of justice’ are to be judged by objective factors to facilitate identification of the ‘natural forum’, in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party: Valceski at [69].

(5) The interests of justice include a range of matters such as the governing law, forensic advantages and disadvantages, balance of convenience to the parties and the witnesses and convenience to the Court system: Barry at [95].

(6) If ‘it appears’ that one court is more appropriate than the other, however so slightly, then a transfer to the more appropriate court is mandatory; no question of discretion arises: Valceski at [70].” [2]

13. As Chen J stated, the principles are now well-established. It is to the advantage of all Australians that the determination as to which of a number of courts should hear a matter no longer depends upon a party showing that one or other of the courts is a “clearly inappropriate forum”. The coordinated legislation promulgated in each State and federally in the cross-vesting scheme permits the Court to determine the question of the appropriate forum on the basis of the “interests of justice”. [3]

14. The discretion to be exercised under s 8 of the Act is a discretion that is, in many respects, dependent upon the answer to the exercise of the discretion under s 5. Assuming for present purposes that the proceedings in the District Court of New South Wales were transferred to this Court, the Court would then need to exercise its jurisdiction under s 5.

15. It is, in my view, inappropriate to determine the exercise of discretion under s 5 on the basis that the proceedings are not currently in this Court but in the District Court of New South Wales, in circumstances where the purpose of the cross-vesting regime is to ensure litigation is conducted in the most efficient manner, avoiding a multiplicity of proceedings, the possibility of conflicting findings and avoiding forum shopping. Rather, the Court should assume that the jurisdiction and discretion to be exercised under s 8 would necessarily be exercised, if the Court were of the view that it is in the interests of justice for the proceedings to be transferred to the Supreme Court of another state (or to the Supreme Court of another state for subsequent transfer to another Court or Tribunal in that State).

16. The Australian Constitution was crafted to build, over time, a national entity and has created an Australian common law, uniform throughout the nation. The cross-vesting scheme promulgated federally and in each state augments that purpose.

17. In the application of the principles extracted above, there have been a number of criteria, not intended to be exclusive, utilised by the courts in considering that which is in “the interests of justice”. The factors include: most importantly, the law to be applied in the determination of liability, particularly if that law be different from the law of the forum in which the proceedings have been commenced; the place where the parties and/or witnesses reside and carry on business; the location of the subject matter of the dispute; the importance of local knowledge to the resolution of the issues; the law governing the relevant transaction, as already stated, particularly if it involves a construction of autochthonous state legislation; the procedures available in the different courts; the likely hearing dates of the different courts; whether there is a specialist court to which proceedings are to be transferred; the stage at which the respective proceedings have reached; and, if there be one, any exclusive jurisdiction clause nominating the courts of a particular state for the resolution of disputes.

18. I take each of the above factors into account, except that there is no exclusive jurisdiction clause. I pay particular regard to the issue that liability will be determined on the basis of Tasmanian law.

Further facts

19. There is another proceeding pending in the Supreme Court of Tasmania, which, to state the obvious, is another State. As a consequence, the provisions of s 5(2)(b)(i) apply, as do the provisions of s 5(2)(b)(iii). Of course, the application of subsection 5(2)(b)(i) of the Act depends upon the proposition that the Supreme Court has transferred into it the proceedings of the District Court, which, as already stated, ought to be assumed for the purposes of the exercise of jurisdiction and discretion under s 5 of the Act.

20. There can be little doubt that the lex loci delicti is Tasmania. Proceedings have already commenced in Tasmania, being proceedings brought by the current defendant’s father and sister who will be required to be witnesses in the Tasmanian proceedings and are likely to be witnesses in the District Court proceedings. To that extent there is a commonality of evidence. It is possible, although not essential, and at this stage a little unclear, that the current defendant’s father and sister will be required to give evidence in both the Tasmanian and New South Wales proceedings.

21. Given the stage of proceedings, it would be difficult to identify all of the witnesses to be called by the current defendant on the Statement of Claim. However, that which is clear, assuming the proceedings survive the foreshadowed attack relating to limitations, is that the substantive proceedings will depend, very much, on the medical evidence relating to the current defendant. All of that evidence is in New South Wales.

22. To the extent that the current plaintiff would require evidence in relation to such medical issues, it is not suggested that such evidence has already been obtained or even foreshadowed and any expert evidence on the nervous shock and/or psychological issues suffered by the current defendant would, presumably, require an examination of the current defendant who is domiciled in New South Wales.

23. The extent to which there is a possibility of inconsistent findings and the extent to which the proceedings are “related” depend very much upon the attitude of the current plaintiff to liability in relation to the motor vehicle accident. Almost everything else depends upon evidence peculiar to the current defendant, in relation to the NSW proceedings, and the current defendant’s sister and father in relation to the Tasmanian evidence. Evidence of the distress and state of health of the deceased while in Tasmania may be common to each set of proceedings.

24. Much of the submission of the current plaintiff relies upon the circumstance that the proceedings have been filed in the District Court of New South Wales at Queanbeyan. However, that seems to be a wholly irrelevant circumstance.

25. The issue is whether in the interests of justice in this particular litigation should proceed in New South Wales or in Tasmania. If, as is at least arguable, Queanbeyan is an inconvenient or inappropriate venue for the proceedings, then the parties, or either of them, could move the District Court for orders moving the matter to a venue other than Queanbeyan. Indeed, the District Court could change the venue of its own motion. [4]

26. The power to change the venue is a broad discretionary power traditionally utilised where there is a manifest preponderance of convenience in trying the cause in a place other than the place it is currently listed. But it may be moved for any other reason that is relevant to the issue.

27. Such a motion would also depend upon the location of the witnesses to be called or where it is most convenient for those witnesses to attend. Thus, given that it is currently in the Queanbeyan list, it may be said that it is convenient for any Tasmanian witnesses to fly to Canberra, rather than some other regional area, or it may be said that it is more convenient to have the trial in Sydney. Much will depend upon the location of the treating medical practitioners, and the location of the experts that are otherwise qualified in relation to the current defendant’s medical issues.

28. Currently, the proceedings in Tasmania are, as the Court has been informed, subject to mediation. Addition of any proceedings, such as these, to the proceedings already in Tasmania, may have the opposite effect of that which is sought to be achieved by the cross-vesting regime in that it may result in a delay in the proceedings relating to the father and sister that are currently listed and proceeding in Tasmania.

Conclusion

29. The fundamental difficulty faced by the Court is that it is unclear, at this stage, whether there is a denial of liability as to the negligence in the motor vehicle accident. Further, it is unclear, because there is no defence, whether there is a denial that the motor vehicle accident caused the death of the deceased.

30. Evidence of the condition of the deceased and her suffering relate significantly to events that occurred in New South Wales, as well as in Tasmania. Certainly, medical evidence relating to the cause of death, given that the deceased died in New South Wales, would have a significant connection with New South Wales.

31. Given that the current defendant is domiciled in New South Wales, but for the evidence relating to the accident and the liability for that accident, none of the disputed evidence seems to relate to Tasmania. As already stated, much depends upon the attitude of the current plaintiff in the proceedings commenced by the Statement of Claim.

32. It seems to me, in the absence of a defence, the Court is not in a position to be satisfied that there is even a possibility of inconsistent findings; the relationship between the proceedings is at best unclear and, to the extent that it is predominantly related to the medical and other conditions of the current defendant, will be unrelated.

33. The Court is not satisfied that, at this stage of the proceedings, it is in the interests of justice for the proceedings to be transferred to Tasmania. Nor, at this stage of the proceedings, is it clear that the proceedings are “related”. If, given the nature of the allegation in the Statement of Claim as to the basis for liability, and assuming that there is a foundation for the allegation to be made, the proceedings in Tasmania were to concern the effect on the father and sister and medical and other evidence relating to that, while the proceedings in New South Wales depend upon the medical and other condition of the current defendant, the relationship between them is at best tenuous.

34. The result may be different if the current plaintiff were to deny any negligence causing the demise of the deceased, but it is unlikely that will be the case. Whether or not it is unlikely, the Court is not satisfied, at this stage of the proceedings, that it is in the interests of justice to transfer the proceedings as requested.

35. The Court makes the following orders:

36. Summons dismissed.

37. The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.

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Endnotes

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5(2), 5(3) and 8.

Comino v Kremetis [2023] NSWSC 32 at [70] (Chen J).

Jurisdiction of Courts (Cross-vesting) Act 1978 (NSW), s 5(2)(b)(iii).

Uniform Civil Procedure Rules 2005 (NSW), r 8.2.