Dunn v The State of New South Wales [2025] ACTSC 260

1. The application before the Court is brought by the defendant and seeks to transfer the proceedings commenced in this Court by the plaintiff to the Supreme Court of New South Wales (NSW Supreme Court).

2. The substantive proceedings were commenced relatively recently in March 2025. They are proceedings for personal injury arising from sexual abuse alleged to have occurred whilst the plaintiff was a state ward and subject to a foster care arrangement at Dubbo in New South Wales, in or about 2006. The plaintiff was then aged about eight years old.

3. The application is brought pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT). The defendant was not specific about the part of the section relied upon. The provision relevant in this instance is s 5(2)(b)(iii) as there is no suggestion that either: (a) The proceedings arise out of or are related to another proceeding pending in the NSW Supreme Court (s 5(2)(b)(i)); or (b) The proceedings are or would have been incapable of being instituted in the ACT (s 5(2)(b)(ii)(A)).

4. Section 5(2)(b)(iii) requires this Court to transfer the proceedings if it is otherwise in the interests of justice that the proceedings be determined by the NSW Supreme Court.

Applicable principles

5. The determination is not an exercise of discretion. If this Court is satisfied that it is in the interests of justice that the action be determined by the NSW Supreme Court, the proceeding must be transferred: BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400 (Schultz) at [63].

6. The summation of relevant principles set out by McWilliam AsJ in Langton v Western Sydney Local Health District [2017] ACTSC 352 at [5]-[8], remains apposite: The principles to be applied in determining an application for transfer under the cross-vesting legislation were expounded by the High Court of Australia in BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 (BHP v Schultz). Theyhave [sic] been followed in this Court in cases such as Barker v Robert Barker Nominees Pty Ltd [2011] ACTSC 73 per Master Harper at [21] and in Bateman v Fairfax Media Publications Pty Ltd & ors [2013] ACTSC 72; 8 ACTLR 13 (Bateman), where Refshauge J set out in detail the applicable principles at [68]-[70], to which I have had regard in the determination of this application. It is not necessary to repeat them in totality here. The factors which I consider to be relevant to the circumstances of the proceedings before me are addressed below. As a starting point, the legislation does not confer a discretion on the Court. If satisfied that it is in the interests of justice that the action be determined by another Supreme Court, this Court must order a transfer. The interests of justice are not limited to the interests of the parties, although these must be considered: BHP v Schultz at [15]; Bateman at [68]. It is not necessary that the first court is clearly an inappropriate forum. Rather, it is both necessary and sufficient that, in the interests of justice, the second court is more appropriate: BHP v Schultz at [15].

7. In that passage her Honour referred with approval to the more detailed statement of applicable principles by Refshauge J in Bateman and Idameneo (No 123) Pty Limited v Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72; 8 ACTLR 13 at [70(o)]. I have also had regard to his Honour’s statement at [70(p)], that significant weight will, as a general rule, be given to the place of the tort and, in personal injury matters, the place where the parties live. Should these matters coincide, that will ordinarily resolve the question of the more appropriate forum, although other factors must still be considered in determining whether it is in the interests of justice to transfer the proceedings. I have also had regard to the statement in Schultz at [15] (per Gleeson CJ, McHugh and Heydon JJ), that although the plaintiff’s choice of forum is not to be given significance, the reasons why that choice was made may be relevant and should be considered.

The application of the principles

8. The defendant relied upon the affidavits of Luke McCann, solicitor for the defendant, sworn on 19 May 2025 and 12 June 2025. Mr McCann identified the following matters of relevance: (a) No timetable has been set in the ACT proceedings; (b) Both parties obtained expert medical opinions from doctors located in Queensland (based on assessments conducted via AVL) prior to the commencement of proceedings; (c) The plaintiff was residing in Tamworth, NSW at the time of each of the medical examinations, although he presently resides in Queensland; (d) Transfer to NSW was likely to result in the matter proceeding to mediation prior to 19 December 2025 with a hearing likely in the last quarter of 2026; (e) Four prospective lay witnesses had been identified at various locations in rural NSW: three in the Dubbo region and one in the Taree region; (f) Four other prospective witnesses were in a category where their whereabouts had not been determined; (g) Interlocutory appearances in the NSW Supreme Court in Sydney are frequently attended via AVL.

9. The plaintiff relied upon the affidavit of Peter Glover, solicitor for the plaintiff, sworn on 12 June 2025. Mr Glover attested to the following relevant matters: (a) The plaintiff was residing in emergency housing in Queensland; (b) The plaintiff had recently received treatment (via AVL) from a psychologist located in the ACT; (c) There is little difference in the travel time required from Dubbo (where some prospective witnesses are located) to either Sydney or Canberra; (d) The plaintiff is represented by his firm on a “no win no fee” basis.

10. The argument put by the defendant in support of transfer of this proceeding was helpfully set out in a written outline of submissions. The defendant argued: (a) It is a statutory entity based in New South Wales with no connection to the Territory; (b) The cause of action accrued to the plaintiff in NSW and its determination will be subject to the laws of NSW; (c) All relevant prospective defence witnesses are located in NSW; (d) The plaintiff had failed to provide any evidence pointing to why the ACT was a more appropriate forum; (e) No differences of substance arise in relation to timing issues in either jurisdiction; (f) There was no connection with the ACT apart from the presence of the plaintiff’s solicitor in the jurisdiction.

11. In oral submissions counsel for the plaintiff suggested that the primary basis for the application was that the Territory presented an inconvenient forum for the defendant. In this regard reliance was placed on the observations in Voth v Manildra Flour Mills [1990] HCA 55; 171 CLR 538 at [30] where the High Court observed, in the context of an analysis of the doctrine of forum non conveniens on a stay application, that the effect of the balance of convenience favouring another jurisdiction does not justify the dismissal of an action or the grant of a stay.

12. Counsel for the plaintiff relied upon the speculative nature of the engagement of the plaintiff’s solicitor and the prospect of increased costs were the proceedings transferred to NSW. The Court was invited to consider the risk that the plaintiff may not be able to retain representation in that jurisdiction.

13. It was also submitted that this Court is well equipped to deal with the proceeding.

Consideration

14. It is a matter of significance that in modern litigation, where so much is or is able to be achieved remotely, that some of the matters that have occupied the minds of judges entertaining cross vesting applications in the past are of little, or at least less, relevance today. In this case the issue is thrown into sharp relief by reference to the state of the medical evidence. Both of the retained experts are located in Queensland and have only met the plaintiff via remote consultation. That is also the case with his treating psychologist, who is located in the Territory, but whose presence here is for present purposes a matter of coincidence only.

15. I accept the submission of the defendant that the happening of the subject events in NSW, the consequent application of NSW law to the determination of the cause of action, the domicile of a number of prospective witnesses in that jurisdiction and the nomination of the State of NSW as the defendant, are factors lending weight to the proposition that NSW presents as the natural forum in this case. However, this application has been brought at a time when no defence has yet been filed. As a consequence, the Court is faced with a pleaded cause of action that is presently without contradiction, and that may be the subject of admission in part or in full. It is in those circumstances very difficult to make an assessment of the significance to be attached to the possibility that the defendant will seek to rely upon a substantial body of lay evidence. In addition, half of the identified witnesses are yet to be located and their place of domicile is therefore unknown. There are also no local law considerations that render the NSW Supreme Court a more appropriate forum.

16. To the extent that lay witnesses presently domiciled in Dubbo may be required to be called to give evidence, and noting the location of that city with reference to Sydney and Canberra, I consider their place of domicile to be a neutral factor.

17. The plaintiff’s present place of residence in emergency accommodation in Queensland is also a neutral factor.

18. It is perhaps trite to observe that the continuation of this proceeding in the ACT will be more convenient for the plaintiff’s solicitor and the transfer of the proceeding will be more convenient for the defendant’s solicitor. I regard that issue as a neutral factor.

19. In Schultz, at [14] the High Court (per Gleeson CJ, McHugh and Heydon JJ), observed: An application for transfer under Section 5 of the Cross Vesting 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 that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interest 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.

20. I am not satisfied that the defendant has established on the material before me that the NSW Supreme Court is a more appropriate forum for the determination of this proceeding, such that it is in the interests of justice to order their transfer to that Court.

Orders

21. Accordingly I make the following orders: (1) The application is dismissed. (2) The defendant is to pay the plaintiff’s costs of the application.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: