Marks v Berri Pty Limited

JUDGMENT - ex tempore

1. Before the Court is an application brought by the plaintiff with the consent of the defendant to have a matter which was commenced in the Sydney Registry of the Court fixed for hearing in Wagga Wagga.
2. In support of the application the plaintiff read the affidavit of Sandra Loway Aziz dated 14 June 2024.
3. Part 8.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows: "(1) If it appears to the court - (a) that a fair or unprejudiced trial of a question arising or likely to arise in or in connection with any proceedings cannot otherwise be had, or (b) for any other reason it is appropriate for the venue of any proceedings to be changed, the court may, subject to this Part, make an order changing the venue of the proceedings. (2) The judicial officer before whom proceedings are being heard by the court may direct that proceedings commenced at one location be continued at another location at which he or she is authorised to hear those proceedings."
4. The background to the matter is that the plaintiff by Statement of Claim filed on 1 March 2024 seeks damages in the tort of negligence for work injuries allegedly suffered on 7 June 2012. The defendant has pleaded a limitation issue and there is a separate application by the plaintiff for an extension order under s 151D of the Workers Compensation Act 1987 (NSW).
5. The affidavit of Ms Aziz dated 14 June 2024 gives some background to the matter and, in particular, states that a number of the lay witnesses to be called reside in Leeton in the Riverina area of New South Wales. One other witness resides in the Sydney area. Reference is made in the affidavit to the hardship which would occur to the parties and witnesses by reason of the need for lengthy travel or prolonged absences from home or work, if the trial were to be held in Sydney. The best estimate is that the hearing is likely to take six days. There is also a reference in the affidavit to the considerable costs to the witnesses and to the plaintiff if the trial were held in Sydney due to flights, accommodation and living expenses.