Livestock Transport (Sydney) Pty Ltd v Commonwealth of Australia

Judgment 1In August 2007 there was an outbreak of equine influenza in Australia. The virus ignored jurisdictional boundaries, spreading to horses in both New South Wales and Queensland. 2Steps taken to contain the spread of the virus included the imposition of extended restrictions on the transport of horses. The present proceeding is a claim brought against the Commonwealth of Australia by a New South Wales horse transport company, Livestock Transport (Sydney) Pty Limited, to recover financial loss allegedly suffered as a result of the impact of those restrictions on its business. Livestock's claim is based on the contention that the introduction of the virus was due to negligence on the part of the Commonwealth in the management of the nation's quarantine system. 3Three weeks before the commencement of this proceeding, the owner of a horse stud at Nobby in the State of Queensland, Clasul Pty Limited, brought a similar claim against the Commonwealth in the Supreme Court of Queensland. A large number of Clasul's horses became infected with equine influenza in late 2007. Clasul seeks to recover damages for lost stud and agistment fees, the cost of veterinary treatment and the value of a mare and a number of foals who allegedly died as a consequence of being infected with the disease. 4The solicitors in the Queensland proceeding have informed the Supreme Court of Queensland that Clasul's action is "the lead case in a series of actions yet to be started by approximately 800 other parties" also represented by the same solicitors. 5The application presently before the court is an application by the Commonwealth to have the present proceeding transferred to the Supreme Court of Queensland pursuant to section 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 so that the two claims can, if seen fit by that Court, be heard together. Livestock opposes the application. 6So far as their cases on liability are concerned, the claims brought by Livestock and Clasul each arise out of essentially the same facts. Most if not all of the relevant events occurred within the State of New South Wales. The central issues raised by the claims concern the Commonwealth's operation of a quarantine facility at Sydney Airport and the Eastern Creek Quarantine Station, both of which are within the State of New South Wales. Eastern Creek is on the western fringes of Sydney. 7Both claims are based on the allegation that equine influenza was introduced into Australia when a number of stallions imported from Japan arrived at Sydney Airport and were conveyed to Eastern Creek Quarantine Station. One of the stallions was allegedly infected with equine influenza at the time of his arrival. The plaintiffs allege that the virus subsequently spread within and escaped from the quarantine facility as a result of the fact that grooms, farriers and private veterinarians attending horses there were not required to take adequate steps to decontaminate themselves upon their departure. 8The Commonwealth acknowledges, in those circumstances, that the primary factual inquiry common to both claims concerns events that occurred within New South Wales and that "some of the lay witnesses will hail from New South Wales". 9The principal basis for seeking to have what is essentially a New South Wales claim transferred to be heard in Queensland is the existence of the Clasul proceeding. The Commonwealth brings the present application as a step towards having both proceedings heard together in Queensland so as to avoid duplication of costs and other resources and the risk of inconsistent findings in the two sets of proceedings. 10In recognition of the undoubted costs burden that would be imposed upon Livestock if the application were granted, the Commonwealth has offered to pay Livestock's reasonable additional legal costs incurred as a result of the cross-vesting. 11The Commonwealth relies upon subsections 5(2)(i) and (iii) of the Jurisdiction of Courts (Cross Vesting) Act, which provide: (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, ... 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. 12To the extent that the application is brought under section 5(2)(b)(i), the Court must consider two matters: whether this proceeding is related to the Queensland proceeding and whether it is more appropriate that this proceeding be determined by the Supreme Court of Queensland. The Commonwealth's reliance on section 5(2)(b)(iii) raises a separate question, namely whether it is in the interests of justice that this proceeding be determined by the Supreme Court of Queensland. 13If it appears to the court that either of those inquiries favours determination of the proceeding by the Supreme Court of Queensland, the statute directs that the order be made. There is no residual discretion. 14It is well established that, in considering whether to make an order for transfer, there is no prima facie presumption that the court the jurisdiction of which was properly invoked should exercise it: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 727B per Rogers A-JA, Street CJ and Kirby P agreeing. The application in that case, thought to be the first contested application for a transfer order in this Court following the introduction of the cross-vesting legislation, was referred to the Court of Appeal so as to provide authoritative guidance as to the law and practice in this State relating to the cross-vesting scheme: at 715F and 717G. 15The leading judgment was given by Rogers A-JA. His Honour explained the historical context in which the legislation had been introduced and (at 725G) emphasised the importance: that full effect be given by the courts to the imaginative and detailed code for ensuring that throughout Australia disputes are dealt with by the one court and that be the court most appropriate for the particular dispute. 16It follows that no particular significance attends the plaintiff's original choice of forum: BHP Billiton v Shultz [2004] HCA 61; (2004) 221 CLR 400 at 425 [26] - [27] per Gleeson CJ, McHugh and Heydon JJ; 439 [77] per Gummow J. The task is to inquire whether it appears to the court that the case falls within the terms of the provisions relied upon. 17A majority of the Court in Bankinvest was of the view that it is inapt to speak in terms of an onus on the applicant, having regard to the fact that the court has power under section 5(7) to make an order of its own motion: at 727B per Rogers A-JA; Street CJ agreeing at 713E; Kirby P reserving that question at 716G. The view of the majority was embraced by Gummow J in BHP Billiton v Shultz at [71]. Notwithstanding views to the contrary (such as those expressed by Kirby P in his dissent on this point in Bankinvest and those expressed by Mason P in James Hardie Company Ltd v Barry (2000) 50 NSWLR 357 at [100]) the proper approach in this Court is that which accords with the majority view in Bankinvest.