Plaintiff v Defendant

Supreme Court of Victoria|2006-05-31|Before: KING J

CROSS-VESTING APPLICATION - cross-vested to Supreme Court of Tasmania.

1 This is an application pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act for transfer of this proceeding to the Supreme Court of Tasmania.

"consistent with the comment in the last sentence of Dr. Wilding's report, I am informed by Fiona Spencer of the plaintiff's solicitors and believe that the plaintiff regularly visits his partner in Tasmania. "

7 In exhibit ADL2 of the affidavit of Andrew David Lyle dated 19 April 2006, the current treating doctor of the plaintiff in a report dated 18 March 2006 stated:

"I would like to highlight that Darren's care needs over the time I have known him have always been and remain complex due to multiple factors. From the outset I have understood that Darren has had past issues in his life that have made my care of his physical and pain problems difficult. I understand that Darren has had limited access, especially at the onset, to physiotherapy and specialist pain services. A great deal of our consultations have been spent checking and past and current details and medical history and arranging ongoing specialist care. Darren's frequent travel between Tasmania and Melbourne have prevent (sic) regular and ongoing physiotherapy."

8 The plaintiff has produced an affidavit to the Court dated 28 April 2006 wherein he states that he is resident in Melbourne and has been since shortly after this accident, July of 2004. Whilst it is a matter of some contention it is not an issue that needs to be finally determined before this application can be resolved. I intend to act upon the basis that the plaintiff does reside in Victoria and has resided here for the last two years.

9 The issue before this Court is whether it is in the interests of justice that the relevant proceedings be heard and determined by the Supreme Court of Tasmania or this Court. (section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987).

10 His Honour Justice Gillard in Ewins v BHP Billiton Lt [1] examined the meaning of the phrase and referred to the decision of BHP Billiton Limited v Trevor John Schultz and Ors[2] which was a joint decision of Gleeson CJ, McHugh and Heydon JJ. Where their Honours said:

"Rather, the court is required by statute to ensure that the cases are heard in the forum dictated by the interests of justice... If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court shall transfer the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate."

11 In his most helpful judgment Gillard J identified factors which were relevant to an application of this nature as being:

i. In a tort case, the place were the wrong occurred.

ii. Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carried on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.

iii. The convenience to the parties and witnesses. However in this day and age this factor may not carry substantial weight, because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because of the provision of evidence by audio visual link.

iv. The law governing the proceeding.

v. The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with particular evidentiary and procedural rules hearing particular types of cases.

vi. The condition of the party, for example, in a personal injury case where the life expectancy of the plaintiff is limited requiring a speedy outcome.

The factors I identify as being relevant to this application are:

Connections to Tasmania

a) The place of the tort is Tasmania.

b) The law that is to be applied is Tasmanian law.

c) The lawyers that are engaged by the plaintiff are based in Victoria, the lawyers for the defendant are based in Tasmania.

d) The accident occurred in Tasmania and any requirement for a view of the could be possible if the matter was heard in the Tasmanian Supreme Court.

e) The defendant lived in Tasmania, but currently resides and works in Egypt.

f) There are two witnesses to the accident who are both Tasmanian residents.

g) The plaintiff was hospitalised and treated in Tasmania for some weeks prior to returning to live in Victoria, and any initial treating doctors will be from Tasmania.

h) The defendant would ensure that any medico legal costs incurred as a result of a request by the defendants would be met by the defendants, including the reasonable travel costs and accommodation of the plaintiff travelling to Tasmania. It is anticipated that some of the medico legal opinions could be from Melbourne based experts.

i) The Supreme Court of Tasmania is able to deal with this case and these types of cases in an expeditious manner.

j) The defendants are prepared to provide an undertaking that the cost of the provision of any witnesses of the plaintiff by video link would be met by the defendants.

a) The plaintiff now resides in Melbourne.

b) The plaintiff is currently being treated by doctors located in Melbourne.

c) Further treatment that is envisaged in respect of pain management and possible surgical intervention will be by doctors located in Melbourne.

d) Witnesses as to the deterioration in the plaintiff's lifestyle and working capacity are located in Melbourne.

e) The plaintiff is not in a position to fund the video screening of any witnesses to the Supreme Court of Tasmania.

12 There is no doubt that either one party or the other will suffer from some inconvenience in relation to where this matter is heard. I agree totally with Gillard J that this is a world of easy communication, and it is quite possible to have witnesses heard by video link, an increasingly common phenomena in the world of litigation.

13 This is a Tasmanian case, the tort occurred there, the law which will govern the case is Tasmanian law, the Justices of that Court are familiar with the particular provisions of the relevant applicable law. The other factors are in my view equally divided in terms of interest of justice between the plaintiff and the defendant. The plaintiff is now protected from being financially inconvenienced in the presentation of his case, by the undertaking provided by the defendants, and accordingly it is my opinion that the proceeding should be transferred to the Supreme Court of Tasmania.

At a glance

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Judgment (17 paragraphs)

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