McKee v Van Haften and QBE Insurance Ltd [2001] VSC 251

6. The plaintiff, Nicole McKee ("the plaintiff"), is a veterinary surgeon, aged 31 years, who resides in the State of Victoria.

9. On 30 May 1998, she was driving a motor vehicle in the State of Queensland when it collided with another motor vehicle. As a result of the collision, the plaintiff suffered injuries and incurred losses and expenses.

12. The first defendant, Rudy Van Haften ("Mr Van Haften"), is an elderly gentleman, aged 72 years, who was the driver of the motor vehicle which struck the plaintiff's vehicle. He resides in Queensland.

15. The second defendant, QBE Insurance Ltd ("the insurer"), is the insurer of the vehicle driven by Mr Van Haften.

19. On 25 May 2001, the plaintiff instituted a proceeding in this Court, by writ, against the two defendants, claiming damages for the injuries suffered and the losses and expenses incurred as a result of the said collision.

25. The insurer was joined as a second defendant evidently because there is some statutory provision in Queensland which required the insurer of a vehicle to be joined as a party to the proceeding.

28. The proceeding has been instituted in this State, in this Court, and the substantive and procedural laws which apply, at present, are Victorian. It is unnecessary to join the insurer as a party to the proceeding in this State. There is no cause of action pleaded against it. It follows that the second defendant should not be a party to the proceeding and should be removed from the proceeding.

31. On 13 June 2001, the defendants, through a Victorian firm of solicitors, filed a conditional appearance and on 12 July 2001, delivered a defence. There is no dispute that the Court has jurisdiction to hear the claim. It is accepted that the defendants have submitted to the jurisdiction.

34. In their defence, the defendants deny negligence and allege contributory negligence on the part of the plaintiff. An additional defence is pleaded, namely, inevitable accident, by reason of the fact that it is alleged that Mr Van Haften suffered a blackout immediately before the accident and lost control of his vehicle.

37. The defendants have not pleaded that the laws of Queensland apply to the proceeding and accordingly, the issues shall be considered and determined in accordance with the laws of this State, unless the proceeding is transferred.

41. On 18 July 2001, the defendants filed a summons seeking the transfer of the proceeding to the Supreme Court of Queensland, pursuant to the Act.

44. Section 5(2)(b) relevantly provides -

(a) a proceeding (in this sub-section referred to as the 'relevant proceeding') is pending in the Supreme Court (in this sub-section referred to as the 'first court'); and

(b) it appears to the first court that -

(i) ...

(ii) ...; 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."

51. Section 5(2) contains three alternative bases for a transfer. The defendant relied upon the third basis, namely, the "interests of justice".

54. The legislation has been on the statute books since 1987, and many applications have been made pursuant to s.5(2). Whether or not a court should grant the application to transfer a proceeding, is a matter of discretion. One looks in vain in the provisions of the Act to ascertain the relevant criteria to take into account in considering such an application. Nevertheless, a number of courts have considered the provisions of the Act and have identified matters which are relevant and to be considered on the application.

57. The application is brought by the defendants in the proceeding before this Court. They carry the onus of proof of establishing that, in the exercise of the discretion, it is in the interests of justice that the proceeding be transferred to the Supreme Court of Queensland.

60. There was some doubt as to whether there was a burden by reason of what was said by Rogers A-JA in Bankinvest AGC v Seabrooke and Ors (1988) 14 NSWLR 711. In the case of Realistech Consulting Pty Ltd v Westbank Banking Corporation Ltd and Ors, an unreported decision delivered 30 September 1998, I disagreed with His Honour's approach and concluded that there was an onus resting upon the applicant. In James Hardie & Coy Pty Ltd v Thomas Joseph Barry, an unreported decision of the New South Wales Court of Appeal, delivered 4 December 2000, Mason P, at paragraph 100, stated that, in his opinion, there was a burden resting on the applicant for a transfer, although he did conclude - "Fortunately 'onus' will seldom, if ever, be determinative at the end of the day."

63. Another matter which has caused controversy in the past is the question whether the person issuing the proceeding is entitled to have his choice of forum accorded substantial weight. In my opinion, the plaintiff's choice of the particular court and the reasons for it are relevant to the application. They must be given due weight in the absence of forum shopping. This Court does have jurisdiction to hear the plaintiff's case. There is no suggestion by the defendants to the contrary. It is a fairly straightforward motor car collision case and there is no suggestion of forum shopping or abuse of process.

66. The plaintiff's choice must be accorded due weight. The plaintiff's main residence has always been in this State, prior to and after the accident. She was present in Queensland, attending a course at the University, at the time of the accident. This Court is her home court and she wishes her case to be heard here, in the place where she resides.

69. The ultimate determinant in the application is whether, in the interests of justice, the proceeding should be transferred. The defendants assume the onus of persuading the Court that it is in the interests of justice to transfer the proceeding. They are confronted with the fact that the plaintiff has exercised her right to bring a proceeding in this State.

72. The cases have established relevant criteria to guide the Court. It is both unwise and impossible to state an exhaustive list of relevant matters. Each case must be determined in accordance with its own particular facts.

75. Further, factors that may have been of some importance ten years ago may not, because of changed circumstances, assume the same degree of importance in this day and age.

78. The Bankinvest case, supra, was the first decision at appellate level to consider the provisions of the Act, and the Court gave some guidance as to the proper approach. The Court emphasised that, initially, the search is for, what is called, "the natural forum". This means "more appropriate". The expression "natural forum" was discussed by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd (1987) AC 465, and described, on p.478, as -

"... that with which the action has the most real and substantial connection."

82. Hence, the connecting factors must be weighed by the Court. "These will include not only factors, affecting convenience or expense (such as availability of witnesses), but also other factors, such as the law governing the relevant transaction ... and the places where parties respectively reside or carry on business." - ibid at p.478.

85. In Dawson v Baker (1994) 120 ACTR 11, Higgins J, speaking for the Full Court of the A.C.T., summarised the case law and listed a number of factors which were relevant. These were: application of substantive law; forensic advantage or detriment conferred by procedural law; the choice made by a plaintiff and the reasons for the choice; substantive connections with the forum; balance of convenience to parties and witnesses; and convenience to the court system. In my view, those matters are relevant, but it must be emphasised that the list is not exhaustive and the weight to be attached to each relevant matter depends upon the circumstances.

88. The application is concerned with two jurisdictions of Australia. There is no suggestion that the applicable law in both States will be different. Indeed, the defendants have not pleaded foreign law. If the defendants wish to have their own local legal team, it can be done with the minimum of fuss or inconvenience. If the proceeding is not transferred, it is possible for interstate practitioners to practise in this State. Admission is speedy and inexpensive, by reason of the Mutual Recognition (Victoria) Act 1998. In this State, under the provisions of Part 2A of the Legal Practice Act 1996, an interstate practitioner may engage in legal practice in this State without having to be admitted or having to obtain a practising certificate. The procedure is inexpensive and easily activated.

91. In addition, with the ease of transport and communications within Australia, it is no longer difficult to prepare a case, indeed, a large case, in one capital city and establish an office close to a court within another capital city, shortly prior to trial. It is not difficult to move witnesses around the country, or to subpoena them to attend from other States. In addition, witnesses can give their evidence in this State by audio-visual link.

94. Difficulties experienced ten years ago in relation to admission to practise, moving from State to State, and conducting litigation in another State, are far less today than they were then. Parties can have their own legal practitioners preparing and presenting the case. Witnesses can come and go. If there is any convenience, it is to the lawyers from another State. In this day and age, is it much of an inconvenience?

98. Affidavit material was filed on behalf of the parties.

101. The plaintiff, through her lawyer, relies upon a number of factors.

104. First of all, her normal place of residence is this State, and apart from a period of time when she was undertaking tertiary studies in Queensland, she has always resided in this State. She has resided in this State since December 1998 with her husband, save for a period of time working in New Zealand.

107. She has engaged a firm of solicitors in this State and wishes to have the proceeding heard in this State before a jury. Trial by jury would not be available to her in the State of Queensland. The fact that she has brought her proceeding in this State, and that she wishes to have the case decided by a judge and jury, are matters which must be accorded substantial weight.

110. Further, it is emphasised that the defendants carry the onus of persuading this Court that it is in the interest of justice that the matter should be heard in another State.

113. She also relies on the fact that her vehicle was registered in Victoria in her name, and that although she received emergency treatment in the Royal Brisbane Hospital, most of her ongoing treatment has been by a number of Victorian doctors. She has had some treatment from Queensland doctors, but her main doctors all reside in this State. It is proposed that she will call, as witnesses, at least six specialist doctors and a physiotherapist, all of whom reside in this State. It is emphasised that the more important evidence concerning the effects of her injuries and the prognosis for the future will be given by Victorian-based doctors. It will not be difficult to obtain the evidence from the Queensland doctors, most of whom could give evidence by audio-visual link.

116. In addition to her Victorian-based treating doctors, she has also consulted three medico-legal specialists, all of whom reside in Melbourne.

119. Further, the plaintiff has a veterinary practice in Victoria, which she must look after, and does not want to be absent from this State for any lengthy period of time. In addition, if she calls any witnesses as to her injuries and their effects, those witnesses would be people known to her and who have had the opportunity to observe her over the last three years. All of them would most likely reside in this State.

122. There is no suggestion that Queensland law would be pleaded in this case and accordingly, it is assumed that the law of both jurisdictions would be the same.

125. As against these cogent factors, the defendants assert that it is in the interests of justice that the matter be heard in Queensland. They emphasise that the accident occurred in Pinjarra Hills in that State, which I have been informed is an outer suburb of Brisbane. The defendant, Mr Van Haften, resides in Karana Downs, which I also understand is an outer Brisbane suburb. His vehicle was registered in that State. It is said that, at the time, the plaintiff was resident in the State of Queensland, which is correct, but she was resident as a student undertaking tertiary education, and her intention was to return to this State, which she did. It is said that she was treated at the Royal Brisbane Hospital by at least three doctors, and that is correct, but, in my opinion, the evidence of treating doctors, at the time shortly after the accident, is usually straightforward and uncontroversial. It would not be difficult to fly the witnesses to Melbourne, which would initially be at the expense of the plaintiff. Moreover, the evidence could be given by audio-visual link, which is often done with treating doctors. It is noted that the two witnesses to the accident reside in the State of Queensland, but their evidence, if anything, favours the plaintiff, and it will be a matter for her to make arrangements to either fly them down to give evidence or provide evidence by audio-visual link. These are matters that, in my view, are very much questions for the plaintiff who, no doubt, weighed these matters, before a decision was made to institute a proceeding in this State.

128. However, as I have already stated, in this day and age, it is not difficult to move witnesses around Australia, and one would expect that both witnesses, if necessary, could fly to Melbourne for the day and return to Queensland, on the same day.

131. It is said that Queensland law will apply to the proceeding, which is incorrect. Queensland law has not been pleaded and is not relied upon. It is also asserted that the insurer is located in Queensland, but I can take judicial notice that it is a large insurance company which is Australia wide.

134. Finally, a complaint is made by the solicitor acting for the defendants, in Queensland, that there has been a failure to comply with various statutory provisions of Queensland. In my view, the provisions are irrelevant to the proceeding.

137. Each case must depend upon its own particular circumstances, but, in my view, the defendants have not established that it is in the interests of justice that the matter should be heard in Queensland. Indeed, in my opinion, the interests of justice dictate that the plaintiff be entitled to continue her proceeding in this Court, which was her choice. The plaintiff has chosen the forum, she wants trial by jury, she resides in this State, and the balance of convenience favours her.

140. On the question of inconvenience, there is no reason why the defendants' case cannot be prepared in Brisbane, using local lawyers, and there is no reason why those lawyers could not appear at the trial of the proceeding in this State. Witnesses can come and go, and evidence can be given by audio-visual link.

144. The defendants have failed in their application and, subject to any submissions from Counsel, I propose to make the following orders -

(i) That the defendants' summons filed 18 July 2001 be dismissed;

(ii) That the second defendant QBE Insurance Ltd cease to be a party to the proceeding, that the title to the proceeding be amended accordingly and the plaintiff have leave to file and serve an amended statement of claim if advised;

(iii) That the defendants pay the plaintiff's costs of the summons.

150. Mr Moulds of Counsel, who appeared for the defendants, submitted that if the application failed, the proper order for costs should be costs in the proceeding. I disagree. The application was made by the defendants, they have failed, and in accordance with the general rule, costs should follow the event, unless there is good cause to the contrary. Mr Moulds referred to a number of unreported decisions of Beach J, where His Honour made orders that the costs be costs in the proceeding. I note His Honour's conclusions, but each case must depend upon its own circumstances. There is nothing in the present proceeding or in the submissions of Mr Moulds, which establishes any basis for not following the general rule.