Dillon (by her litigation guardian Humphreys) v Tasmania [2025] ACTSC 132

1. Before the Court is an application to have the proceedings transferred to the Supreme Court of Tasmania pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT). The proceeding is a common law claim for damages arising out of an injury suffered by the plaintiff to her hand when she was visiting a national park in Tasmania. Plainly, the cause of action arises in Tasmania. However, the plaintiff is a resident of the ACT. She is a minor, presently aged 13, and prosecutes the claim by a litigation guardian, being her mother.

2. The requirement of s 5(2)(b)(iii) is that this Court must transfer the proceeding to the Supreme Court of Tasmania if: it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory.

3. The principles applicable to determining when it is in the interests of justice for a proceeding to be determined in a different court were considered by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400. Those principles were summarised by McWilliam J in her Honour’s decision in Yates v New South Wales [2021] ACTSC 193 at [4] – [12]. A starting point for the determination of such an application is, of course, as indicated by the wording of the section that I have set out above, that the legislation does not confer a discretion on the court. If the court reaches a state of satisfaction that it is in the interests of justice that the application be determined by another Supreme Court, a transfer order must be made.

4. A second consideration of importance is that the place where the plaintiff chose to commence the proceedings is not determinative. It is indicative of the plaintiff’s choice but does not of itself attract any specific emphasis or weight. That is to say, the position is not that the defendant is required to, in effect, discharge an onus as to why the proceedings should be transferred. Thirdly, as noted in Schultz at [15], cited by McWilliam J in Yates at [9], the interests of justice are not necessarily the same as the interests of the parties, although they may sometimes coincide and should be considered by the court.

5. Examples include the interests of containing costs and promoting efficiency. Those are considerations that weigh in favour of the ACT being the preferred forum in the present case, because although the defendant is the State of Tasmania, being a state, it is able to be represented by lawyers in either jurisdiction, whereas the plaintiff, a minor, resides in the Territory and the process of attending a hearing in Tasmania would be costly and disruptive to the family. The detail of those matters is addressed in an affidavit relied upon in support of the application, which gives detail of the usual kinds of disruption that a hearing in another jurisdiction would visit upon a family with young children and busy parents.

6. A separate consideration is the question of case management. The evidence relied upon by the plaintiff indicates that, in the experience of her solicitor, based on other proceedings he supervises in Tasmania, that Court does not have any equivalent of this Court’s Practice Direction 2 of 2014, which provides for proceedings ideally to come before the Court only twice, for a first listing and a second listing, but more importantly to be completed within 12 months of commencement.

7. My own experience is that, since the introduction of that Practice Direction in its current form, and with the benefit of careful management of the civil list by the registrars, this Court has in recent times seen a significant improvement in the efficiency of the conduct of the civil list, to the extent that proceedings such as the present often either resolve or conclude within that period. The defendant did not seek to be heard against the proposition established on the plaintiff’s evidence that the Supreme Court of Tasmania has no equivalent case management process.

8. In all the circumstances, I am not satisfied in the terms of s 5(2)(b)(iii) that it is in the interests of justice that the proceeding be determined by the Supreme Court of Tasmania. It follows in accordance with the statute that I must refuse the application.

Orders

9. For those reasons I make the following orders: (1) The application to have the proceedings transferred to the Supreme Court of Tasmania is refused. (2) I order that the defendant pay the plaintiff’s costs of the application, such costs not to be assessable until the conclusion of the proceedings. (3) I vacate the listing on 7 April 2025. (4) I list the proceedings for directions before the Registrar on 14 April 2025 at 9:30am. I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date: