Lend Lease Funds Management t/as Sunshine Plaza v Sawaya

Judgment 1Mrs Joumana Sawaya has sought to recover damages for a slip and fall at the Sunshine Plaza Shopping Centre at Maroochydore in Queensland in August 2012 in proceedings commenced in the District Court. By summons filed in February 2014 orders removing the proceedings from the District Court to this Court, so that they could be transferred to the Supreme Court of Queensland under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), were sought. The three applicants are defendants in the District Court proceedings. 2The application raises for consideration the mechanism established by s 8 of the Jurisdiction of Courts (Cross-vesting) Act and the principles established in s 5. As discussed in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, they require that the application be resolved by a determination of what the interests of justice dictate in the circumstances revealed on the evidence (see at [14] per Gleeson CJ, McHugh and Heydon JJ). That requires the respective benefits and disadvantages of the grant of the application to be weighed. 3Affidavits sworn by the first and second applicants' solictor Mr Lynch and by the third applicant's solicitor Mr Breen were relied on. A solicitor in the employ of Mrs Sawaya's solicitor also swore an affidavit. 4There is no question that the proceedings in the District Court were commenced regularly, or that the laws of Queensland will apply to their determination. Before commencing the District Court proceedings Mrs Sawaya's solicitors gave a notice of the claim required to be given under the applicable Queensland legislation, the Personal Injuries Proceedings Act 2002 (QLD). 5The Jurisdiction of Courts (Cross-vesting) Act establishes no presumption as to where the balance of the interests of justice might come down (see Schultz at [25] per Gleeson CJ, McHugh and Heydon JJ). The application must be determined without any specific emphasis in favour of the choice of forum made by Mrs Sawaya (see Schultz at [77] per Gummow J). 6The natural forum for the District Court proceedings which Mrs Sawaya has brought was in issue. That depends on an assessment of matters such as convenience and expense, availability of witnesses, the places where the parties respectively reside or carry on business, and the applicable law (see Schultz at [18]). This is a case where there are significant connecting factors with both New South Wales and Queensland. 7There may be cases in which justice dictates that an interest of one party be given weight (see the discussion in Schultz at [27]), as was urged for Mrs Sawaya, given that she is the injured party and the applicants are in a better position to fund the cost of litigation at a distance, but was observed at [16]: "On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party." 8This appears to be such a case. 9Mrs Sawaya lives in New South Wales where she has been treated by general practitioners, orthopaedic surgeons and a chiropractor and where her husband, daughter and a friend have assisted her. She has plainly commenced the proceedings where it is convenient for her to have the matter dealt with. Her husband witnessed her fall and she will call evidence from him and treating doctors and medical experts resident here. An engineering expert engaged resides in the ACT. It would unquestionably be more costly for her if the proceedings were transferred to Queensland. 10The converse is also true. It would be more costly for the applicants, of whom there are three, represented by two firms of solicitors, if the proceedings were not transferred. Mr Lynch and Mr Breen explained why it would be convenient to the applicants to have the proceedings heard in Queensland, where the slip and fall occurred and where witnesses the applicants would call reside. They include cleaners, a supervisor and manager, as well as experts. While there was some dispute as to how many witnesses the applicants would call, this must be resolved on the unchallenged evidence of the applicants' solicitors, as to what is in contemplation. 11The location of witnesses, both lay and expert, cannot be a decisive consideration in this case. Wherever the case is heard, one side or the other and their witnesses will have to travel. In any event, given the widespread and successful use of telephones and video link technology nowadays, which has proven to be both a convenient and cost effective way for evidence to be given by witnesses who are located at a distance from the court, problems caused by witness location can be minimised. 12One relevant consideration is the likelihood of a view of the premises at which Mrs Sawaya's fall occurred during the hearing. While disavowed for Mrs Sawaya at the hearing of the summons, it was a possibility earlier raised in the District Court and cannot be entirely excluded. That would certainly favour the transfer of the matter to Queensland, as would the nature of the claim itself. Spigelman CJ observed in James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at 361 [7]: "To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross-vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of 'appropriate court', although other factors may need to be assessed in the process of determining where the interests of justice lie.". 13Where the proceedings involve the construction of legislation, it may also be better that they be construed by the Supreme Court of that State (see Schultz at [248] per Callinan J discussed by McCallum J in Reid v Wright [2012] NSWSC 1149 at [19]). 14In this case, both the place of the alleged slip and fall and the governing law is that of Queensland. The system established by the Civil Liability Act 2003 (QLD), by s 61 requires that any general damages be calculated by reference to a scale established by the Civil Liability Regulation 2003 (QLD). Section 62 provides a calculator which must also be applied. By schedule 4 of that Regulation it is provided that the range of those values reflects the level of adverse impact of such injuries. The calculator is date based. The objectives of Schedule 4 provides: "(a) consistency between assessments of general damages awarded by courts for similar injuries; and (b) similar assessments of general damages awarded by courts for different types of injury that have a similar level of adverse impact on an injured person." 15That system does suggest, as was submitted for the applicants, that experts familiar with assessments under this regime will have to be engaged. 16In the result, I have concluded that it is in the interests of justice that these proceedings be determined by the Supreme Court of Queensland, Queensland being the more appropriate forum for the hearing of Mrs Sawaya's claim. 17The usual order as to costs is that they follow the event. In this case, that would be an order that the applicants' costs be borne by Mrs Sawaya, as agreed or assessed. Unless the parties approach within 14 days to be heard on the question of costs, that will be the costs order.