Fong v The State of New South Wales [2025] ACTSC 329

1. The plaintiff alleges personal injury as a consequence of physical and sexual abuse that he suffered between 1988 and 1989, when he was a year 7 or year 8 student at Model Farms High School (the school), a public secondary school at Baulkham Hills in New South Wales. He was then aged 13 or 14 years, and he is now 50 years old.

2. In his statement of claim the plaintiff identifies his abuser as a male teacher employed by the school. He refers to repeated incidents of abuse, at undisclosed locations, with some occurring in the teacher’s car. As a consequence of the abuse the plaintiff asserts injury in the form of psychological and physical injury that is not further particularised in the statement of claim. He claims damages and exemplary damages.

3. The plaintiff currently resides at Robina in Queensland. There is no suggestion that he has ever been resident in the ACT. His connections with the Territory are that the legal firm representing him is primarily located here, and he has received some treatment from a psychologist located in the ACT, albeit remotely by way of “telehealth”.

4. The plaintiff sues the State of NSW as the entity responsible for the operation and management of the school, asserting negligence and breach of the non-delegable duty of care owed to him as a student at the school. In the alternative the plaintiff contends that the school, and in turn the State, is vicariously liable for the actions of the teacher.

5. By its defence the defendant makes admissions that: (a) The school is a NSW government school under the auspices of the NSW Department of Education (the Department); (b) The Department, through its employees, had the care control and maintenance of the school; and (c) The plaintiff was a student at the school in years 7 and 8 between 1988 and 1989.

6. The defendant does not admit the allegations pertaining to the claim in vicarious liability.

7. In relation to the negligence claim, the defendant re-characterises the risk of harm to be the risk that a student at the school might suffer psychological injury as a result of being physically or sexually abused by a teacher, but denies that the risk of harm was foreseeable, or one which the Department knew or ought to have known: s 5B(1)(a) of the Civil Liability Act 2002 (NSW) (the CLA). In addition, the defendant relies upon s 5B(1)(b) of the CLA, which deems a person not negligent unless the risk under consideration was not insignificant.

8. As to the asserted non-delegable duty of care, the defendant admits such a duty, but confines it in terms consistent with s 5B of the CLA, and expressly denies that the duty extends to intentional criminal acts such as those asserted in this case.

9. The defendant expressly denies the particulars of breach of duty of care alleged by the plaintiff.

10. In relation to the claim for exemplary damages, the defendant relies upon s 21 of the CLA that prevents a court from awarding such damages for personal injury due to negligence.

Evidence

11. The defendant read two affidavits of Kalyna Becker affirmed on 6 June 2025 and 8 July 2025. The plaintiff read an affidavit of Peter Glover sworn on 20 June 2025.

12. The points of significance made in Ms Becker’s affidavits, that are relevant to the application before me, may be summarised as: (a) Having considered the allegations in the plaintiff’s statement of claim, it is the intention of the defendant to call evidence from employees, including teachers at the school at the relevant time, to give evidence about the practices and procedures of the school during the relevant period; (b) The potential key witnesses identified thus far reside in NSW; (c) The defendant's legal representatives, and those providing instructions on its behalf, all reside in NSW; (d) Although initially no records pertaining to the plaintiff's attendance at the school could be located, inquiries are continuing (and in view of the admissions in the defence recently filed, some relevant records have been identified); (e) A potential witness, Ms Van der Wall, who was jointly responsible for sports organisation at the school for students in years 9 to 12 as at 1989, has been located living in a retirement village at Castle Hill, NSW. She is aged 80 years; and (f) Other potential witnesses, including the Principal and Deputy Principal at the school in the relevant period, have been identified by name, and with reference to the last known addresses for each of them, were then resident in NSW. It is not suggested that their present whereabouts are known, or that there has been any contact with the individuals identified.

13. The points of significance made in the affidavit of Mr Glover not otherwise addressed above are: (a) The plaintiff has in the past received psychological treatment from a psychologist in Queensland; (b) The medical expert relied upon by the plaintiff, Professor Lorraine Dennerstein, is located in Melbourne; (c) In respect of intended witnesses, the defendant has provided no evidentiary statements or outlines of evidence the witnesses may be able to give.

Expert evidence

14. The plaintiff has served the report of Professor Dennerstein, a psychiatrist, dated 16 March 2022. With due regard to the caution to be applied to the acceptance of factual 1 matters as recorded in expert medical opinions because of their summary nature, the following may be gleaned from the Professor’s report concerning the state of affairs in March 2022: (a) The plaintiff was born in Sydney and at one time had a large and extended family there; (b) In his teenage years he spent time in youth detention at Cobham (presumably in Victoria), before moving to Queensland; (c) He was in contact with his mother and his two younger sisters; and (d) His parents separated when he was aged 20, and his father is deceased.

Applicable principles

15. Section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) is in the following terms: 5 Transfer of proceedings … (2) If— (a) a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court (in this subsection called 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

1 See Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. more appropriate that the relevant proceeding be determined by that other Supreme Court; or (ii) having regard to— (A) whether, in the opinion of the first court, apart from this Act and a 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; and (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 that other State or Territory and not within the jurisdiction of the first court apart from this Act and a 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 Territory; the first court must transfer the relevant proceeding to that other Supreme Court.

16. The matter to be addressed is whether, pursuant to s 5(2)(b)(iii), it is “otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of another state or territory”.

17. I refer to the summation of relevant principles in Dunn v The State of New South Wales [2025] ACTSC 260 (Dunn), at [5]-[7] and [19].

18. The defendant also relied upon the decision of the Supreme Court of New South Wales (NSW Supreme Court) in Comino v Kremetis [2023] NSWSC 32; 110 NSWLR 224 (Comino), particularly the summary of interests of justice principles set out by Chen J at [70]. The application under consideration in Comino sought transfer of proceedings from the NSW Supreme Court to the Federal Circuit and Family Court of Australia (Division 1), Sydney Registry, in circumstances where the parties were involved in existing proceedings in the Family Court. The determination of the loan issues in the Supreme Court proceedings was considered directly relevant to a primary issue in the Family Court proceedings, being the determination of the assets and liabilities of the first and second defendant. Equivalent interests of justice considerations arise under s 5(1)(b)(ii)(c) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), as those arising under s 5(2)(b)(iii) of the equivalent ACT legislation.

19. In Comino at [70], Chen J observed: 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].

20. In respect of the claim made by the plaintiff that seeks to attribute to the defendant liability for the wrongful acts of the unidentified teacher, the defendant referred to the recent decision of the High Court in Bird v DP [2024] HCA 41; 98 ALJR 1349 (Bird). At [46], the High Court restated what it described as the “just limits” or “essential requirement” for this form of attributed liability. That is, that the wrongful act must be committed by the employee in the course or scope of the employment. In CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 278 CLR 165 (Schokman), the High Court stated (per Kiefel CJ, Gageler, Gordon and Jagot JJ) at [12]: For an employer to be held liable for the tort of an employee the common law requires that the tortious act of the employee be committed in the course or scope of the employment. In Prince Alfred College Inc v ADC this was described as an essential requirement of the common law. In Bugge v Brown, Isaacs J referred to it as a rule of the law. The necessity for it, as providing the parameters or outer limits of vicarious liability, has never been doubted. The principle upon which the rule is based is that it is just to make the employer, whose business the employee is carrying out, responsible for injury caused to another by the employee in the course of so acting, rather than to require that the other, innocent, party bear their loss or have only the remedy of suing the individual employee. (Footnotes omitted.)

21. The latter authorities were relied upon by the defendant in the sense that they bear on the assessment of the evidence likely to be called in the matter to enable a determination of the legal issues pertaining to vicarious liability.

Submissions of the applicant/defendant

22. The preponderance of connecting factors is with Sydney, rendering the NSW Supreme Court, sitting in Sydney, the more appropriate forum.

23. There may be a need for a view, which would take place at the school located in Baulkham Hills, in Sydney.

24. The defendant carries out its functions in NSW and the Department office is located in Parramatta. Those from whom instructions will be received for the defendant are located in Sydney.

25. All currently identified potential witnesses have a last known address in Sydney. It is overwhelmingly likely that a court case in Sydney will be more convenient for the likely liability witnesses called. This is particularly so in circumstances where the allegations relate to events that occurred more than 35 years ago, thus increasing the likelihood that any identified witnesses will be quite elderly.

26. Accepting that there is a degree of generality about the likely witnesses identified to date, as a matter of inference, it is overwhelmingly likely that the majority of witnesses will come from the Sydney area.

27. The plaintiff resides in Queensland and his only expert witnesses (as currently identified) are located in Melbourne. If evidence is to be called from any of the plaintiff's family members, they also appear to be located in Sydney. Evidence from expert witnesses is likely to be by way of AVL.

28. The location of the plaintiff’s legal representative in the ACT is of little weight.

29. The specialisation and experience of the NSW Supreme Court in assessing damages under the CLA is a relevant factor.

30. The case is effectively a systems case and a vicarious liability case and as a consequence the witnesses required to be called may not be directly involved with the plaintiff, but will be connected with the defendant located in Sydney.

Submissions of the respondent/plaintiff

31. The plaintiff submitted: (a) The identity of the assailant is unknown and there is no suggestion that any persons witnessed the alleged assaults; (b) Efforts to further particularise the claim have been thwarted by delayed disclosure of documents on the part of the defendant; (c) The defence as pleaded lacks precision and therefore does not advance the application to cross-vest the claim; (d) In a similar vein, the lack of clarity as to witness identification and location is both difficult to understand, given the effluxion of time since claim notification, and of little assistance to the Court in seeking to draw inferences from the material; (e) Further, there is no indication of the nature of evidence the witnesses may be called upon to give or of their capacity to give evidence at all; (f) The case in Dunn, an application to cross-vest recently rejected by the Court, was stronger than the present case; (g) The location of the defendant itself is of little moment given the paucity of documents available; (h) The onus in respect of the application rests with the defendant, and the defendant has failed to place any conclusive evidence before the Court; and (i) The present application is therefore premature and the later availability of cogent evidence would not prevent a further application being made at an appropriate time.

Consideration

32. The statutory power to cross-vest is one that should be exercised whenever it is in the interests of justice that the proceedings be determined by another designated court. The task of the court is to assess whether there are objective factors leading to the conclusion that another designated court is a more appropriate forum for the determination of the proceeding.

33. As Refshauge J observed in Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd [2013] ACTSC 72 at [70(p)], in personal injury matters, “[s]ignificant weight will, as a general rule, be given to the place of the tort and... the place where the parties live”. The latter is, in my view, of much less moment in the conduct of modern litigation where so much evidence is received remotely. In any event, in circumstances where the plaintiff is domiciled in Queensland, the only medical expert retained at this point is in Victoria, and the defendant is yet to identify with precision the identity, and the place of residence, of the witnesses who are likely be called in the defence case, no natural forum emerges.

34. The place of the tort, however, does assume some significance in this matter. In that regard there is merit in returning to the pleaded claim.

35. As a component of the claim in negligence made against the defendant, the plaintiff contends (in his statement of claim at [11]) that the following precautions should have been taken: 11․ The Defendant ought to have taken the following precautions: a. Instituted and maintained a system whereby students were encouraged to report misconduct (including sexual misconduct) to those in authority. b. Ensured that those who were employed at the School, including the teacher, were not able to have abusive personal contact with any student at the School. c. Removed abusive employees and staff from the School. d. Supervised or adequately supervised the Plaintiff in the circumstances. e. Supervised or adequately supervised abusive employees and staff, including the teacher. f. Appointed a representative charged with safeguarding students. g. Instituted and maintained a system of mandatory reporting of child abuse or suspected child abuse. h. Ensured that students, including the Plaintiff, were not placed in circumstances where they would be assaulted or would fear being assaulted.

36. In response to [11], in its defence, the defendant says: As to paragraphs 10, 11 and 12 [of the plaintiff’s statement of claim], the Defendant: (a) says it took reasonable precautions relevant to and consistent with its operational requirements and statutory obligations and standards, including standards based upon societal standards and the state of knowledge that existed at the time in which the Plaintiff alleges that he was a student [at] the School; 2 (b) repeats and relies on paragraph 8 of this defence; and (c) otherwise denies the balance of those paragraphs.

2 In [8] of its defence, the defendant re-characterised the risk of harm as “if a risk of harm existed, it was a risk that a student at the School might suffer psychological injury as a result of being physically or sexually abused by a teacher”, and denied that the risk was foreseeable, was one of which the Department knew or ought to have known, or was not insignificant pursuant to s 5B of the CLA.

37. In addition, the plaintiff makes a claim in reliance upon the principle that the defendant was vicariously liable for the actions of the unidentified teacher who was an employee of the Department. That claim is denied by the defendant. Consistent with the observations of the High Court in Bird and in Schokman, the vicarious liability claim will require satisfaction of the threshold requirement that the teacher in question was acting in the course or scope of his employment.

38. As counsel for the defendant submitted, the cause of action is therefore one that may be conveniently described as a systems case. Its determination will likely involve consideration of: (a) The locations at which the events relied upon occurred, whether within or outside of the school; (b) The scope of the duties required of teachers in the position of the subject teacher; (c) The systems in place at the time for management of student complaints; (d) The systems in place for management of student teacher interactions; and (e) Employment guidelines and performance appraisal processes.

39. Evidence about those matters will need to be considered within the framework provided by the CLA.

40. The focus of the submissions of the plaintiff in resisting the application to cross-vest was on the lack of certainty as to the witnesses who may ultimately be called, having regard to the lack of progress in the defendant’s efforts to identify suitable witnesses. Counsel for the plaintiff also contended that the paucity of documentation meant that the location of the defendant was of less significance.

41. Unlike the position in Dunn, the defendant has in this case joined issue with a number of the contentions in the statement of claim. I accept that there is at present a lack of clarity as to who may ultimately be called to give evidence. However, I am satisfied in a case where the subject teacher is unidentified, and the plaintiff seeks to impeach the defendant’s systems relating to supervision and management of the school, that the need to call evidence from the Department about systems and procedures in place at the time is almost inevitable. I also consider it likely that the disputed vicarious liability claim will likely involve some careful analysis of the locations and the circumstances in which the particular events of abuse occurred, and may well require a view of the relevant area in Sydney.

42. By its application the defendant proposed that there be no order as to the costs of the application. I am of the view that the appropriate order is an order for costs in the cause.

Orders

43. For the reasons stated above the State of NSW, and more particularly the city of Sydney, presents as the natural forum for the determination of the plaintiff’s claim. I therefore make the following orders: (1) The proceedings are transferred to the Supreme Court of NSW pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT). (2) The costs of the application in proceeding dated 10 June 2025 are costs in the cause.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: