Frost v Bankstown Wiley Motor Cycle Club Inc & Ors [2008] ACTSC 104

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

3. The present action was commenced by originating claim on 5 March 2008 by a firm of solicitors in Wollongong, New South Wales, through Canberra agents, on behalf of the plaintiff whose home address is at Windang, New South Wales. Windang is on Lake Illawarra and is effectively a suburb of Wollongong. The plaintiff's claim is for damages for personal injury occasioned in a collision during a motorcycle race at Wakefield Park Raceway at Goulburn in New South Wales. The first defendant is sued as having been responsible for the race meeting, the second defendant as owner and operator of the raceway and the third defendant as the body responsible for motorcycle sport in New South Wales. It is alleged in the statement of claim that each of the defendants was negligent in allowing the race to start when it was not safe to do so; failing to abort the race; failing to have a safe system in relation to the start of the race; allowing the race to take place in an area too small for the number of motorcycles; and failing to have enough marshals supervising the race.

4. It is alleged that the plaintiff suffered a severe head injury causing brain damage, and a ruptured spleen. The claim includes components for past and future treatment and domestic assistance, and for impairment of earning capacity.

5. The first defendant is an association incorporated in New South Wales. The second and third defendants are companies. All three have their registered offices in the suburbs of Sydney. They are represented by the same solicitors, a Sydney firm through Canberra agents, from which it can be assumed that there is no issue as between the three defendants. The defendants have filed a conditional notice of intention to respond, flagging a challenge to the jurisdiction of this Court. No such challenge has yet been launched, and no defence has been delivered. I assume for the purposes of the transfer application that if the action proceeds to trial, each of the defendants will deny negligence. In a supporting affidavit, the solicitor with carriage of the matter on behalf of the defendants has deposed to his "belief that any lay witnesses to be called to give evidence at the trial are likely to be resident in NSW".

6. The solicitor for the plaintiff has sworn that her client was transported from the raceway by ambulance to Goulburn Base Hospital; two or three hours later he was airlifted to Canberra Hospital where he was an inpatient for about three weeks. He was then transferred to a rehabilitation centre in Sydney. While in Canberra Hospital he was attended by a number of Canberra-based medical specialists. A Canberra doctor specialising in rehabilitation has been retained for a medico-legal report and a Canberra accountant with experience in the preparation of reports relating to loss of earning capacity has also been engaged. She expressed the opinion, without citing any expert support for it, that it was likely that the plaintiff would have to attend on some of the Canberra specialists for his care and rehabilitation.

7. There is, it seems to me, a somewhat tenuous connection with the Australian Capital Territory, and it is not immediately obvious why the plaintiff's solicitors elected to commence proceedings here. It was of course a common practice in relation to New South Wales accidents in the days when Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 was good law, and damages were restricted by statute in the courts of New South Wales. Since Stevens v Head was overruled in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503, such applications have been relatively rare, no doubt for the reason that solicitors for plaintiffs have not perceived any benefit in commencing proceedings in this Court expect where it is clearly a more convenient venue for all parties. For example, it remains reasonably common for actions for damages for personal injury arising out of motor vehicle collisions and work accidents in and around Queanbeyan, involving New South Wales residents, to be brought and heard in this Court, undoubtedly because, despite the State-Territory border, this Court is seen to be more convenient to the parties in every way.

8. The principles to be applied in determining an application for transfer under the Act were explained in some detail by the High Court in BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400, and applied in this Court by Connolly J in Woodham v Medina Group Pty Limited [2005] ACTSC 92 and MC v The State of South Australia [2006] ACTSC 9; (2006) 196 FLR 470.

9. The statute does not confer a discretion on the court. If the court is satisfied that it is in the interests of justice that the action be determined by another Supreme Court, the court must order that the proceedings be transferred to that court. The interests of justice are not limited to the interests of any of the parties, although the interests of the parties must be considered. The fact that the plaintiff has chosen to bring the proceedings in a particular court is not a factor to be given any particular weight. The choice of a plaintiff to bring proceedings in a court where he may gain an advantage at the expense of the defendant, whereas on transfer he would lose that benefit to the defendant's advantage, is generally a neutral factor.

10. Each case depends on its own facts. In BHP Limited v Schultz, the High Court by majority (Gummow, Kirby, Hayne and Callinan JJ; Gleeson CJ, McHugh and Heydon JJ dissenting) decided that on the facts of the case, the court, having upheld an appeal from a judge of the Supreme Court of New South Wales at first instance, should order the transfer of the proceedings to the Supreme Court of South Australia - and proceeded to do so. Factors included that the cause of action had arisen in South Australia; the courts of that State provided the forum which best gave effect to the reasonable expectations of the parties and to the policy in the cross-vesting legislation; the transfer would remove the need for a decision as to whether a relevant New South Wales legislative proceeding was substantive or procedural; most of the witnesses at the trial would come from South Australia; and the appellate procedures available in South Australia had a more generous scope for an appellant than those in New South Wales.

11. The plaintiff's claim in MC v State of South Australia arose out of medical treatment she had been given in that State thirty-five years earlier when she gave birth to a child which was subsequently adopted pursuant to the then State legislative regime. The claim was in negligence, breach of statutory duty and breach of fiduciary duty. The claim included an allegation that she had been pressured or coerced into agreeing to the adoption of the baby.

12. Connolly J accepted that the vast majority of witnesses, both as to the factual issues, and as to any issue of prejudice which would arise on an application for an extension of the limitation period, were likely to be based in South Australia.

13. His Honour also noted that the action was not a routine claim in negligence for personal injury. It raised a challenge to past State government policy, was a novel claim breaking new ground in the development of the law, and was likely to be a complex and lengthy proceeding. Taking evidence from Canberra by telephone or video link, in His Honour's view, would be far from satisfactory.

14. His Honour went on to say that in routine personal injury cases, the fact that the court might have to apply the law of an interstate jurisdiction generally caused no difficulties and would not of itself be a ground for transfer. If the case had been a routine personal injury case, His Honour would not have been satisfied that the interests of justice favoured a transfer. However, the case was not in that category. His Honour said that where a court was asked to break new ground in reviewing past conduct of a government and determining whether that conduct, forming part of a long term pattern of conduct, was unlawful, there were compelling reasons why the court making the determination should be the court of the polity concerned. Questions of comity between jurisdictions were also relevant.

15. As against those considerations, the plaintiff resided in the Australian Capital Territory and had quite properly chosen to institute proceedings in the Territory. Her income was limited, and there was a psychiatric opinion that the transfer would place her under additional stress.

16. His Honour expressed the view that if the only issues were cost and convenience, the question would have been finely balanced but would not ultimately have favoured transfer. The particular considerations about the novelty of the cause of action and the issue of past government policy outweighed the more usual considerations and favoured a transfer to the Supreme Court of South Australia, which His Honour ordered.

17. In the present case, I have a bare expression of opinion that lay witnesses who might be called by the defendants are likely to be resident in New South Wales. I have been given no information as to how many such witnesses there are, or what part of New South Wales they come from. I am inclined to assume in the circumstances that any eyewitnesses to the collision probably came from the Goulburn region, though I acknowledge that I may prove to be incorrect about this, considering that the plaintiff had apparently travelled from Wollongong to Goulburn for the race.

18. Counsel for the defendants submits that the substantive law to be applied on the hearing of the action will be the law of New South Wales, which includes the Civil Liability Act 2002 of that State. Counsel draws attention to a number of differences between that Act and the Civil Law (Wrongs) Act 2002, the equivalent legislation in this Territory. Counsel draws my attention to observations made by Callinan J in BHP Billiton v Schultz at para [259] that the Court of the jurisdiction where the cause of action arose "should be the most experienced and efficient" in the evaluation of the law of that jurisdiction. Whilst I accept that in some cases, including Schultz, this might be an important factor, I must recognise that the Civil Liability Act applies generally in New South Wales to claims for damages for personal injury, and that the task of construing and applying it regularly falls to this Court. The Australian Capital Territory is a small island surrounded by the State of New South Wales, and inevitably its residents suffer injury in New South Wales, just as NSW residents are from time to time injured on the Canberra side of the border. It does not seem to me that the decision in BHP Billiton Limited v Schultz mandates a transfer whenever this Court is required to apply New South Wales legislation in the course of a proceeding.

19. I should take account, it seems to me, not only of the choice of forum as between New South Wales and the Australian Capital Territory, but of the likely venue for the hearing of the action. If the action is not transferred, the hearing will almost certainly take place in Canberra, although the Court may sit at any other place in Australia from time to time determined by the Chief Justice: Supreme Court Act 1933, section 18. There is no reason why the Court could not sit for part of the hearing of an action in Canberra, and for part of the hearing somewhere else, for example in Goulburn.

20. In previous years, the Supreme Court of New South Wales sat annually at Goulburn. I am informed that this is no longer the case, and that the Supreme Court rarely if ever hears civil actions in country New South Wales.

21. If I were to order a transfer, it would be open to the Supreme Court of New South Wales of its own motion or on application by a party to remove the proceedings to the District Court of New South Wales, but my understanding is that even the District Court no longer holds regular sittings at Goulburn. Indeed, the nearest District Court town to Goulburn where civil sittings are held may well be Queanbeyan, which would offer no advantage in convenience over Canberra.

22. It may well be that it is too early, in the present action, to make a decision about the most convenient venue for the hearing of the action. It is still very early in the proceedings. The pleadings have not closed. It may prove that the parties will have little difference as the evidence on damages. Many personal injury cases, in such circumstances, proceed on the basis of medical reports without the need for doctors to give oral evidence. On the other hand, it may eventually prove that there is little or no issue between the parties about liability and that the real dispute is about quantum. A further alternative is that there may be no real issue about the circumstances of the plaintiff's collision but a significant issue about the basis of any liability on the part of one of more of the three defendants.

23. I make the point that if the defendants do not persuade me that the Supreme Court of New South Wales is the appropriate court on the present evidence, there is no bar to a further application being made after the pleadings have closed, or after the parties have completed their investigations and preparations in relation to liability or the medical issues or the claim for loss of earning capacity. It may ultimately be apparent that there are no issues left in relation to which this Court could be seen as the appropriate court. At the moment, I simply note that some of the medical witnesses, though not all, are Canberra-based. At least one other witness, the expert witness proposed to be qualified on behalf of the plaintiff in relation to loss of earning capacity, lives and practises in Canberra. Some medical witnesses and some lay witnesses may be based in or near Goulburn. The plaintiff and his family, and some treating doctors, are based at or near Wollongong. (I cannot make any assumptions about witnesses arising from the fact that the registered offices of each of the three defendants are in Sydney). I am not satisfied that there is anything about the statute law of New South Wales which makes the Supreme Court of New South Wales a more appropriate court to hear the action than this Court. I am not at this stage satisfied that the action is likely to be heard at a venue in New South Wales which would be any more convenient, or any less inconvenient, to any of the parties than Canberra.

24. For those reasons I am not satisfied at this stage that it is in the interests of justice that the proceedings be determined by the Supreme Court of New South Wales rather than by this Court.

25. The application will be dismissed. I shall provide the parties with an opportunity to be heard on the questions of costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the plaintiff: Maguire & McInerney (Wollongong, New South Wales) by their agents Pamela Coward Higgins Lawyers

Solicitors for the defendant: Riley Gray-Spencer Lawyers (Sydney, New South Wales) by their agents Nicholl & Co Lawyers