Farrelly v Mataranka HomesteadTourist Resort Pty Ltd [1999] VSC 13

11. On 13 November 1998 the plaintiff filed a writ in the court in which she seeks to recover damages from the defendants in respect of the injuries she received as a result of her fall from the horse. The plaintiff alleges that those injuries were caused to her by the negligence of the defendants in failing to ensure that the ride was suitable for the plaintiff, in failing to provide any or any adequate warning to the plaintiff as to the risks associated with the ride, representing to the plaintiff that the horses that were being provided for the ride were safe for her to ride, failing to undertake any or any adequate enquiry as to the capacity of the plaintiff to ride the horse or horses that were to be provided to her for the ride, and failing to ensure that horses which were to be used upon the ride were horses which were safe for the plaintiff to ride. Other allegations are made by the plaintiff in relation to the matter. It is unnecessary to rehearse them in my reasons for judgment this afternoon.

14. I now have before me an application by the second-named defendant pursuant to s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) to transfer the proceeding to the Supreme Court of the Northern Territory. It is contended by the second-named defendant that it is in the interests of justice that the proceeding be determined by that court as that is a more appropriate jurisdiction. The application is neither supported nor opposed by the first-named defendant. Not surprisingly, it is opposed by the plaintiff. The plaintiff opposes the application on the ground that she is a resident of the State of Victoria, that a number of witnesses who were present with her at the time of her fall are also resident in the State of Victoria, that the bulk of the medical evidence that she would wish to call in support of her claim will come from medical practitioners practising in this State, and that a number of lay witnesses she would wish to call to give evidence concerning the effect the plaintiff's injury has had on her are also resident in Victoria. It is said on behalf of the plaintiff that, in so far as witnesses for the defendant, including the second-named defendant herself, who are resident in the Northern Territory are concerned, their evidence could be taken in this State by video link.

17. For the second-named defendant it is said that not only would she be required to come to Victoria if the proceeding remains for trial in this State, it would also be necessary for her to bring a number of employees of the first-named defendant to this State to give evidence and a number of other witnesses who would give evidence as to their experience with the horse the plaintiff was riding, and its suitability for trail rides in general and in particular the trail rides at Mataranka Homestead; further it may well be that a view of the trail ride at Mataranka Homestead would be necessary.

20. The principle that the court will apply in determining an application of this nature was considered quite recently by the Court of Appeal in Schmidt v. Won and Others [1998] 3 V.R. 435. It is sufficient for present purposes to note the following passage from the judgment of Ormiston, J.A. at p.453, where his Honour said:

"So the ordinary remedy of parties, who are served in Australia with process issued out of the Supreme Courts of States or Territories other than that in which they reside and who wish to complain that the Supreme Court of that other State or Territory is not the appropriate forum in which the litigation should be heard, is to seek transfer pursuant to the provisions of s.5(2) of one of the State Cross-Vesting Acts. In the light of the complex and sophisticated scheme now in operation in this country, a stay of the kind contemplated by Voth [that is a reference to the decision of the High Court in Voth v. Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 C.L.R. 538] must be seen as an inappropriately heavy-handed means of ensuring that issues are determined in the proper forum, i.e. in the court within Australia most appropriate to hear the action and most convenient to the parties for that purpose. Transfer under the cross-vesting legislation should be seen as now providing the necessary and appropriate weapon to achieve the same end by transferring litigation to a more appropriate jurisdiction within Australia. Not only is a transfer a fairer means of protecting a defendant sued in the 'wrong' court, one saving both parties much unnecessary expenditure, but it also provides a remedy based, so far as a defendant is concerned, on a less demanding test and one which is designed to ensure that litigation is heard in the most convenient and appropriate court, unaffected by the reasons which impelled the High Court to impose the strict test in Voth when issues are raised as to whether a local court 'should allow a foreign forum rather than itself to determine a question ...'."

24. And so I turn to consider which is the more appropriate jurisdiction so far as this particular proceeding is concerned.

27. It would seem to me in the circumstances of this case that the more appropriate jurisdiction is the Supreme Court of the Northern Territory. I say that for these reasons. The real conflict in this case will relate to the issue of liability. The injuries suffered by the plaintiff would appear to have been comparatively straightforward, in the sense, as I have already indicated, that they consisted of a fracture of the mid-shaft of the right arm which required open reduction. It would be surprising, therefore, if there was any conflict in the medical evidence relating to the injury or the disability, if any, suffered by the plaintiff as a consequence. In that situation I consider that it would be quite appropriate for the plaintiff's medical witnesses to give their evidence to the court in the Northern Territory by means of a video link.

30. But the question of liability, on the other hand, could be a hotly debated issue. If that proves to be the case, as I consider it may well be, the trial judge may well be better able to determine the question if he actually has before him the witnesses giving evidence in relation to the matter, and is, of course, then in a much better situation, in my view at all events, to assess their credibility.

33. Accordingly I order, pursuant to s.5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), that this proceeding be cross-vested to the Supreme Court of the Northern Territory.

36. It was quite open to the plaintiff to institute her proceeding in this State because this court has the jurisdiction to determine her proceeding. In that regard see Breavington v. Godleman [1988] HCA 40; (1988) 169 C.L.R. 41. Accordingly, in my view she should not be penalised by an order for costs against her. In the circumstances I consider that the appropriate order to make in respect of the costs of the application is that each party's costs be their and its costs in the cause.

39. I direct that this order be prepared by the solicitors for the second-named defendant and brought to me for authentication.