• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

JUDGMENT ex tempore (Revised)

1. The Plaintiff, Mr Jimmy Kaponikolos, commenced these proceedings in the Common Law Division of this Court by Statement of Claim filed on 29 May 2026. The claim is for sexual abuse that he alleges he suffered while a student at Deepdene Public School in Victoria, which he attended from kindergarten to year 6. That abuse is alleged to have started when the Plaintiff was in year 4 and continued until he commenced attending high school. The State of Victoria is the Defendant.

2. Mr B Williams of Counsel moves on the Plaintiff’s Notice of Motion filed on 27 July 2026, by which the Plaintiff seeks an order that the proceedings be transferred to the Supreme Court of Victoria pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the JCVA) and the Judiciary Act 1903 (Cth).

3. Returning to the Statement of Claim, the specific allegations are that the teacher’s sexual abuse, which started with touching the Plaintiff’s penis through his pants, escalated over time to multiple instances of anal and oral rape. The abuse allegedly occurred first at school and later, by virtue of the teacher’s friendship with the Plaintiff’s parents, at the teacher’s house.

4. In his Statement of Particulars, the Plaintiff alleges that, as a result of the actions and omissions of the Defendant, he has suffered psychological injuries, the sequelae of which continue to substantially impact him.

5. The particulars of the alleged breaches of duty include failure to ensure that the teacher was not a paedophile, failure to discipline the teacher in relation to paedophilic misconduct (or allegations thereof), failure to implement a system whereby students could complain of abuse, failure to implement effective safeguards against abuse and failure to refer information or complaints of abuse to the police.

6. The Defendant has not entered an appearance and there are no affidavits in the Court file. Today, in Court, Mr B Williams filed an affidavit of his instructing solicitor, Ms Melinda Anne Griffiths of Melinda Griffiths Lawyers Pty Ltd. That affidavit confirms that Ms Griffiths, on 15 July 2026, received a letter from HWL Ebsworth Lawyers in Melbourne, in which they confirmed that they had been appointed as the legal representatives for the Defendant and stated, somewhat unsurprisingly, that "the more appropriate forum for this proceeding is the Supreme Court of Victoria".

Legal principles

7. Section 5 of the JCVA provides, relevantly, as follows:

5 Transfer of proceedings

…

(2) Where—

(a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Supreme Court (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 of a 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 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,

(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 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 of a Territory,

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

8. In the circumstances, s 5(2)(b)(iii) is the relevant provision. Justice Lonergan, in Pilbara Ports Authority v Ashton [2019] NSWSC 1488, set out at [12] the applicable principles, being:

“a. The power to exercise the power to transfer is not a discretionary power but a mandatory obligation when the interests of justice are determined. No question of discretion arises: BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at 434-5 [62]-[63] (per Gummow J); 481 [222] (per Callinan J).

b. The plaintiff's choice of forum, indicated by commencement of the proceedings, does not require any specific emphasis or weight to be given to it: Schultz at 425 [25] (per Gleeson CJ, McHugh and Heydon JJ); 439 [77] (per Gummow J); 466 [170] (per Kirby J); 492 [258] (per Callinan J).

c. The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424 [22] (per Gleeson CJ, McHugh and Heydon JJ).

d. The interests of justice are not the same as the interests of one party and there may be interests wider than those of either party to be considered: Schultz at 421 [15] (per Gleeson CJ, McHugh and Heydon JJ).

e. The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at 419-20 [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski [2007] NSWSC 440 at 411 [69].

f. Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at 422-3 [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ).

g. In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear: Schultz at 423 [19] (per Gleeson CJ, McHugh and Heydon JJ).

h. Significant weight will, as a general rule, be given to the place of the tort and, in personal injury matters, the place where the parties live: Ewin v BHP [2005] VSC 4 at [33]. Where these coincide, that will ordinarily resolve the question of the more appropriate forum, although other factors may still need to be given careful consideration to determine in which court it is in the interests of justice that the proceedings be heard: James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 361 [7].

i. It is also relevant if there is a coincidence of the law of the forum (lex fori) and the law of the place where the tort was committed (lex loci delicti) and this will avoid debate concerning substantive and procedural law: Schultz at 444 [99] (per Gummow J).”

Consideration

9. There are powerful factors which support the transfer of the proceedings to Victoria. The fact that the tort is alleged to have occurred entirely in Victoria has implications for the applicable law. As Faulkner J recently explained in Doyle’s Farm Produce Pty Ltd atf Claredale Family Trust v Murray-Darling Basin Authority [2026] NSWSC 1036 at [92]:

“For a claim arising from a tort, all questions of substance are to be determined according to the law of the place where the tort was committed. Questions of substance include the existence, extent and enforceability of remedies, rights and obligations. They do not include procedural issues, namely the rules which regulate the mode or conduct of the proceedings. Procedural issues are governed by the law of the forum.”

(Footnotes omitted.)

10. His Honour there cited John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 543 [99] and 544 [102] as authority for those propositions.

11. Should this matter remain in this Court, procedural issues will be governed by the law of New South Wales while substantive questions will be governed by the law of Victoria. The case being transferred to Victoria would avoid a disconnect between the law applicable to questions of substance and procedure. The Supreme Court of Victoria is plainly the more appropriate forum.

12. Furthermore, the Plaintiff resides in Victoria. Although the Defendant is the State of Victoria rather than an individual, the Plaintiff's residence nevertheless remains a matter of significant weight. It would appear to be more convenient and cost-effective for the matter to be transferred to Victoria.

13. On the material before me, no factors militate against the transfer. The Plaintiff’s choice of forum does not require any specific weight, and what weight I would have given that factor must be considered in light of this application being made on the Plaintiff's own motion.

14. On a fair balancing of the factors which constitute the interests of justice in this matter, I am persuaded that it is in the interests of justice that the transfer order sought be made. Absent any discretion, I am therefore obliged to effect that transfer.

15. I make one final observation. It was at all stages blindingly obvious that there was no justification for these proceedings to be commenced in New South Wales. The only connection to the State of New South Wales is the geographic location of the solicitors that the Plaintiff chose to represent him, who are in Wollongong. Every single factor in this matter points towards Victoria being the appropriate forum. Ms Griffiths’ affidavit does not explain why that was not the course taken. Quite how it occurred to anybody that the proceedings should be commenced in New South Wales remains a mystery.

16. It is incumbent upon practitioners to consider a matter as fundamental as the proper jurisdiction in which to commence proceedings. That has not been done on this occasion for, as I have stated, reasons which remain wholly mysterious. I can only surmise that zero consideration was given by the Plaintiff's solicitor to the obvious question of jurisdiction and the matter was, without any thought, filed in this Court when it should have never been so filed. That is a lamentable situation.

Orders:

17. I make the following orders:

18. The proceedings are transferred to the Supreme Court of Victoria pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

19. No order as to costs.

**********