Joo v Tyler

Young Kim Lawyers - Plaintiff SOLICITORS : Hunt & Hunt - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 Shaw J: In this matter the interlocutory application by the defendant is to cross vest the proceedings and to refer them to the Supreme Court of Queensland pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth). The relevant provision of the statute is: 5(2) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court of a State or Territory (in this subsection referred to as 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 Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of a 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; (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 the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a 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 shall transfer the relevant proceeding to that other Supreme Court. 2 The cross-vesting regime constituted by Commonwealth and State legislatures in 1987 as a series of complementary laws was intended as an exercise in co-operative federalism. However, in Re Wakim; Ex parte McNally (1999) 198 CLR 511 the High Court struck down as invalid that aspect of the legislation that empowered Federal courts constituted under chapter III of the Constitution to receive State jurisdiction. Nonetheless, the capacity of a State court to transfer or cross-vest a matter to another State court, which might be a more convenient forum, remains intact. 3 It is submitted by the applicant that the controversy before this court in New South Wales is substantially related to the Queensland jurisdiction and that witnesses and associated costs would substantially come from Queensland. 4 On the other hand, the plaintiff's case has been pending in this Court for a considerable time and has been listed for a final hearing on 22 September 2003. The statement of claim was filed on 30 July 2002. 5 The plaintiff alleges that he, being a university student, was the subject of a series of injuries including damage to the legs, neck and head and that these adverse medical conditions resulted from an event which occurred on or about 14 August 2000 and that the resulting damages should result in a verdict of $750,000. 6 The defendant submits that the proceedings should be referred to the Supreme Court of Queensland. 7 However the plaintiff's claim seems to me to have the requisite connection to this jurisdiction. It is true that the plaintiff's claim arises out of an event which was dealt with by the criminal courts of Queensland. 8 The question is whether these proceedings should be heard in this Court or should be transferred to the Supreme Court in Queensland. 9 There are a number of Queensland witnesses and there would obviously be costs associated with such witnesses coming to Sydney for the disposition of the proceedings. On the other hand the plaintiff is resident in New South Wales. He would suffer inconvenience in having to conduct his case outside the jurisdiction of his place of domicile. It does not seem to be disputed that the law governing the determination of the matter, that is the common law, is the same in Queensland and New South Wales. No material difference has been identified. 10 In circumstances where liability is conceded, and the case concerns a question of contributory negligence of no more than 25 per cent, and where the matter has been pending in this Court for some time it seems to me the convenient forum is to be found in this jurisdiction. 11 In James Hardie and Co Pty Limited v Barry (2000) 50 NSWLR 357, Mason P considered the criteria applicable to determining what was in 'the interests of justice' in the context of the cross-vesting legislation. 12 The more appropriate legislative category for transfer is that when a duly instituted matter is perceived by a party (usually the defendant) to be in a forum which is not preferred, the test is which forum is 'more appropriate' (see Mason P at 377), as distinct from the jurisprudence about forum non conveniens. His Honour applied the judgment of Rogers AJA in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730, saying that: If ever there was a field where consistency and comity were vital it is this one. 13 Spigelman CJ generally agreed with Mason P as to the 'more appropriate' test (at 361) whilst pointing out that the transfer power 'does not confer a discretion, in the sense that the Court exercises a power of choice' (at 361). For relevant purposes, Priestley JA agreed with Mason P (at 385). 14 In all of the circumstances I would decline the application for cross vesting of the cause pending in this Court to the Supreme Court of Queensland. One factor which influences me particularly is that the matter has been assigned a date for hearing in September of this year and can presumably be conveniently be determined on or about that date. It is unclear when the matter would proceed in Queensland. The plaintiff may face procedural hurdles in that State. 15 Here, the reasons why I think this Court is more appropriate include: (a) the residence and convenience of the plaintiff; (b) the fact that the transfer application was lodged in October 2002 whereas the statement of claim was issued on 30 July 2002; (c) the identity of similar legal principles applicable to the case in both jurisdictions as there is a single common law in Australia: John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; (d) the scheduled hearing in New South Wales in September of this year, or, in the submission of the plaintiff, that it is 'imminent'; (e) the briefing of New South Wales counsel; (f) The inequality of resources between the plaintiff and defendant. The plaintiff, the Court has been informed, is a young man from Korea who is disabled, having lost both his legs and having a head injury, whereas the defendant is represented by an insurance company; (g) the reliance on the need for overseas witnesses is irrelevant; they can come to Sydney as easily as they would to Brisbane or Townsville; (h) the plaintiff's submission that a plethora of witnesses (for example, all the passengers on the bus) would not be required seems cogent. The question seems to come down to whether the plaintiff was, or was not, wearing a seat belt; (i) the apparent fact that there are other cases pending in Queensland arising out of the accident does not, in my view, outweigh these considerations. These cases involve different parties. It is true that, theoretically, different findings of fact could be made in Queensland with respect to other plaintiffs. However, the case seems to me to be within a relatively narrow frame of factual controversy, and, in my view, this possibility is remote and not, of itself, sufficient to tilt the balance in favour of transfer when measured against the countervailing factors; (k) video link facilities are available, especially for expert witnesses. 16 Thus my conclusion is that the application for cross vesting should be dismissed and the costs of the application should be paid by the defendant. 17 Accordingly, I would make the orders reflecting these reasons for judgment, in particular: 1) The defendant's notice of motion to cross-vest the proceedings is dismissed; 2) The defendant (applicant) is to pay the costs of this notice of motion.

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