Henderson bhnf Blumer v Murray [2008] ACTSC 120

4. The solicitors for the defendant have not filed a notice of intention to respond or delivered a defence. The first document they filed was the present application for transfer. In that document, and in two supporting affidavits handed up in court, they presumed to amend the title of the action by substituting the plaintiff's mother, Cherie Mann, as next friend. Needless to say, no consent to act as guardian by Ms Mann has been filed. Rule 280 of the Court Procedures Rules 2006 does not permit the replacement of a litigation guardian except by order of the Court. The documents I have mentioned should not have been accepted by the Court for filing with the unauthorised altered title.

5. Also before the Court on the day I heard the application, 31 October, was an application on behalf of the plaintiff for leave to commence proceedings out of time.

6. The cause of action having arisen in New South Wales, the Court is required to apply the law of that State as to matters of substance: John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503. Since that decision, limitation periods are to be regarded as substantive and not, as previously assumed, procedural. Section 109 of the Motor Accidents Compensation Act 1999 (NSW) provides that a claimant is not entitled to commence proceedings more than three years after the date of the motor accident except with the leave of the Court, which must not be granted unless the claimant provides a full and satisfactory explanation to the Court for the delay. The originating claim in these proceedings was filed on 18 July 2008, just on six months outside the three-year period. For reasons which I gave orally on 31 October, I was satisfied that the claimant had provided a full and satisfactory explanation for the delay, and granted leave to commence the proceedings out of time.

7. It appears that the delay may have been somewhat less than six months. Subsection 109(2) provides that time does not run for the purposes of the section from the time a claim is referred to the authority for assessment until two months after a certificate as to the assessment or exemption from assessment is issued. Whilst it is a little unclear on the evidence, it is possible that the subsection was triggered in later 2006, giving rise to a period of about six months during which time did not run, and that the application for extension of time was unnecessary. Be that as it may, I granted leave and the proceedings are now regular as far as compliance with section 109 is concerned.

8. The police report placed in evidence on behalf of the defendant reveals that the car accident happened at about 11.00 pm on 17 January 2005 in Tullamore Road, Peak Hill. Mark Edward Gillon, born in 1973, was driving a Holden station wagon registered in the name of the defendant. There were four passengers in the vehicle, including the plaintiff who was the centre of three passengers in the back seat. According to the police report, the plaintiff was not wearing a seatbelt. Because the seatbelt item is completed "not worn" as opposed to "not fitted", counsel for the defendant submits that it should be inferred that a functional seatbelt was fitted. Other items "child restraint" and "airbags" are completed as "not fitted". It seems to me there would need to be a little more evidence on the hearing of the action to justify a finding that there was a functional seatbelt fitted in respect of the plaintiff's position in the car.

9. The accident was a single vehicle collision with a tree. I am satisfied that the plaintiff will have no difficulty establishing on hearing that the collision occurred as a result of the negligence of the defendant. According to the police report, all occupants of the car were seriously injured and taken to hospital. The driver was found to have a blood alcohol level of 0.074%. The item "opinion of sobriety" is completed "moderately", but the investigating police officer states that she did not speak to the driver on the night. There is a reference to drugs having been found but the only detail given is "located used bong in vicinity of vehicle". Also in evidence is a claim form lodged on behalf of the plaintiff with the third party insurer, signed by the plaintiff's mother. The claim form was lodged with the insurer in August 2005. It is not signed by the plaintiff herself. The plaintiff's mother, who was not present at the time, completed a description of the accident as follows:

He was drunk and he hit a tree. My daughter was a rear seat middle passenger. There was no seatbelt available to her.

10. Ms K Calvert, a solicitor employed by the firm acting for the defendant, relevantly deposes as follows:

5. There are substantial liability issues in the case as the driver and plaintiff had consumed alcohol and smoked marijuana prior to the accident.

6. Witnesses will be required on the issue of liability including those who were passengers in the vehicle and those who were at the party being the venue from which the vehicle left on the journey culminating in the accident. People at the party who might be required as witnesses include the people who are listed in paragraph 5.3 of Annexure NB-20 to the affidavit of Nooraini Blumer sworn 7 October 2008.

7. Apart from the plaintiff, all of these persons and other people at the party reside in NSW.

11. It is not clear where the first reference to a party came from, but the annexure to Ms Blumer's affidavit is a copy of a letter she wrote to the defendant's solicitors on 30 May 2006 in answer to a request for particulars. In those answers, Ms Blumer said that the plaintiff arrived at the party at 8.00 pm on the day of the accident. She said that there were about fifteen people at the party when she arrived there and about twenty when she left. During that time she had one vodka cruiser and a sip of Woodstock bourbon and coke, and she smoked one marijuana cigarette about an hour and a half before the accident. She had first met the driver about four days before the accident, and had first seen him and spoken to him on the day of the accident about six hours before the party. In answer to a request for the names of the people at the party, Ms Blumer responded:

The people that our client can recall, to the best of her knowledge, and including surnames where known, were:-

Corey; Sarah's brother; Sarah; Caleb Towney; Lateisha Towney; Carla; Adam; Shanara; and Eddie.

There were a few others but she is not sure who they are.

12. To add a little light to this information, the other passengers in the car according to the police report were Sarah Lee Wright and Leticha Ball both of Peak Hill, and Carla Murray of Goonellabah, New South Wales. I am prepared to assume that "Eddie" was the driver and that the other three passengers are the Sarah, Lateisha and Carla in the list.

13. Having regard to what is said and what is not said in Ms Calvert's affidavit, I infer that the defendant's solicitors have not yet taken statements from the defendant, the passengers, or any of the other named persons at the party.

14. It is far too early for me to be able to arrive at a view as to the witnesses likely to be called on behalf of the defendant on hearing. Having regard to the available information about the circumstances of the accident, the driver's blood alcohol level and the plaintiff's admissions about alcohol and marijuana, I am satisfied, at least for the purposes of the application, that the plaintiff will have no difficulty establishing that the accident happened because of the driver's negligence. There would be no prospect of a defence of volenti non fit iniuria succeeding under the general law. Section 138 of the Motor Accidents Compensation Act provides that the common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, subject to some provisions of the section not relevant to the present case. The reference to the enacted law in the section is a reference to Division 8 of the Civil Liability Act 2002 (NSW). It is not suggested that the provisions of that Division operate any differently to the common law as to contributory negligence in the present case. Having regard to the plaintiff's age, it seems to me that the defendant would be unlikely to succeed in establishing contributory negligence on her part.

15. Hence, on the information presently available, it seems to me unlikely that those advising the defendant would call the driver or any of the passengers or other persons at the party to give evidence, whether the hearing of the action takes place in Canberra or in Sydney.

16. In that regard, I take account of the fact that whilst the Supreme Court of New South Wales for many years heard civil actions, including actions for damages for personal injury, on circuit at Dubbo, near Peak Hill, this has not been its practice for a number of years. Indeed, the Supreme Court would almost certainly of its own motion remove the action to the District Court of New South Wales if I were to order the transfer which is sought. I am tempted to ask rhetorically how I can be satisfied that the Supreme Court of New South Wales is the appropriate court to hear the action, rather than this court, when it is common knowledge that the Supreme Court of New South Wales will decline to hear the action at all and will remove it to a lower court.

17. I accept Ms Blumer's evidence that the plaintiff lives in the Australian Capital Territory, and was visiting New South Wales only temporally when she was injured. She was initially taken by ambulance to Dubbo Base Hospital but was transferred a week later to the Canberra Hospital where she was treated under the care of Dr Bryan Ashman, orthopaedic surgeon. She has since been under the care of her general practitioner, Dr Bobba at Belconnen.

18. As against this, Ms Blumer has obtained a specialist medico-legal report from Dr P Endrey-Walder, surgeon, of Sydney.

19. As with liability, it seems to me that it is too early to arrive at a view as to the likelihood of particular medical practitioners being required to give oral evidence on hearing. I take account of the fact that frequently medical evidence is given by agreement on both sides in medical report form without any oral evidence. Almost as frequently, expert medical witnesses give oral evidence, by agreement, by telephone. It has become rare for medical witnesses, particularly specialists, to attend court in person.

20. I also note that it is common practice for solicitors on both sides in cases of this kind to serve notices for non-party production upon the treating doctors, so as to have access to their records well in advance of any hearing. It is apparent from the court file that that stage in these proceedings has not yet been reached.

21. I had recent occasion to set out the principles to be applied in an application for transfer under the cross-vesting legislation in an action for damages for personal injury in Frost v Bankstown Wiley Park Motor Cycle Club Inc & Ors [2008] ACTSC 104. The plaintiff's claim there was for damages suffered in a motor cycle race, coincidentally also in country New South Wales. I referred in those reasons to the decision of the High Court of Australia in BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400, in which the principles to be applied in determining a transfer application were explained in some detail. I referred also to the decisions in this court of 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. Counsel for the defendant referred me also to a decision of Crispin J in a defamation action, Le Busque v ACP Publishing Pty Limited [2006] ACTSC 46.

22. As I said in Frost, the Jurisdiction of Courts (Cross-Vesting) Act 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 she may gain an advantage at the expense of the defendant, whereas on transfer she would lose that benefit to the defendant's advantage, is generally a neutral factor. Each case depends on its own facts.

23. In the present case, I have an expression of a solicitor's opinion that lay witnesses resident in New South Wales are likely to be called on behalf of the defendant. For reasons I have already stated, it is too early for me to be satisfied that the opinion is likely to be borne out. The position may be different when the defendant's solicitors have taken statements from potential witnesses, and all medical reports have been obtained and exchanged.

24. Although counsel for the defendant submits that it is likely that a number of witnesses from the Peak Hill area will be called, I have not been given any evidence or information as to where and when the action is likely to be heard if I order the transfer. If it is heard by the Supreme Court, my understanding is that it would be likely to be heard in Sydney. If it were removed by the Supreme Court to the District Court, I accept that it might be heard at Dubbo, although no doubt this would depend on the balance of convenience as between all involved.

25. Counsel for the defendant also submitted that a factor I should take into account was that the hearing of the action would involve the construction of New South Wales legislation. As I said during submissions, I see the present action as fundamentally an action for damages for personal injury arising out of a motor vehicle accident, rather than a case involving statutory interpretation. I have already referred to the applicable New South Wales legislation. It is legislation which applies to every motor vehicle personal injury action in New South Wales, and legislation which is regularly applied by this court when determining such actions in circumstances where the cause of action arose in New South Wales. This court, unsurprisingly having regard to the proximity of Canberra to the border between the Australian Capital Territory and New South Wales, is regularly called upon to determine such actions. There will, of course, be cases where questions of statutory interpretation will be fundamental to the outcome, and where it will be appropriate for the proceedings to be transferred to the Supreme Court of the State whose legislation is to be interpreted. I am not satisfied that this is such a case.

26. The point should also be made, as I said in Frost, that under section 18 of the Supreme Court Act 1933, this court is able to sit at places in Australia other than Canberra if the Chief Justice so determines. There is no reason why the Court could not sit for part of the hearing of an action like the present one in Canberra, and for part of it, for example, at Peak Hill, where there is a courthouse where the Local Court of NSW sits and which, I have no doubt, could be made available for the purpose.

27. On the evidence presently before me, I am not satisfied that the Supreme Court of New South Wales, rather than this Court, is the appropriate court to hear and determine the action. It may be that it is too early in practical terms for a decision to be made about the most convenient venue. The pleadings have not closed. It may prove that the parties will have little difference as to damages, and that the medical evidence will consist solely of expert reports. On the other hand, it may eventually turn out that there is little or no issue between the parties about liability and that the real dispute is about quantum.

28. I suggested to counsel for the defendant during the course of submissions that in the circumstances the practical solution might be to stand the present application over until closer to hearing. Counsel for the defendant was not attracted to this option and urged me to deal with the application on its merits immediately. In those circumstances, I am left with little choice but to dismiss the application.

29. There is no bar to a further application being made in the future, perhaps after the pleadings have closed and the parties have completed their investigations and preparations in relation to liability and to the medical issues. It may ultimately become 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 the plaintiff and some of the medical witnesses, though not all, are Canberra-based. At least one potential medical witness is based in Sydney. Likely police witnesses were based at Peak Hill at the time of the accident and may or may not still be based there. Likewise, some potential lay witnesses lived at Peak Hill at that time. The driver and one of the passengers gave addresses in the Northern Rivers region of New South Wales. In the circumstances I cannot at this stage be satisfied that the action would be 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.

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

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the plaintiff: Blumers Personal Injury Lawyers