Plaintiff v Defendant

1 This application is made by the defendant to cross-vest an action brought in the state of Victoria by the plaintiff. This action arises out of the plaintiff's allegation that on 26 January 2008, she entered upon the premises of the defendant in Salamanca Place, Hobart, Tasmania, and, whilst there, slipped upon a ramp, and fell. The plaintiff alleges that the defendant was negligent for failing to provide and maintain a safe ramp leading out of its premises, and for failing to warn her of the dangers of the ramp which was actually provided. As a result of this fall, the plaintiff alleges that she suffered a severe comminuted fracture of her left wrist, as well as ancillary injuries such as injury to her left elbow, chronic swelling of her left wrist, scarring, nausea and shock. She is seeking damages.

2 The defendant now applies to transfer this proceeding from Victoria to the Supreme Court of Tasmania pursuant s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (the 'Act').

3 The relevant parts of s 5(2) of the Act are as follows:

(2) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court);

and

(b) it appears to the first court that:

...

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

4 The High Court in BHP Billiton Ltd v Schultz[1] set out the test to be applied when deciding applications under s 5(2)(b)(iii) of the Act, namely, whether in 'the interests of justice' the second court is more 'appropriate':

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.

5 In determining which court is the more appropriate, it is proper to have regard to which court has the most 'real and substantial connection' with the subject matter of the proceeding:

Normally, the 'interests of justice' of all parties within Australia will require the transfer of proceedings to be determined by the Supreme Court of another state or of a territory where that court, rather than the court of the forum selected by the plaintiff, is the 'natural forum' being that 'with which the action has the most real and substantial connection'. Usually that will be the place of the wrong, or of the contract or of the operation of the statutes sued upon and particularly where that is also the place of the residence of the parties.[2]

6 In deciding where the interests of justice lie, the courts will assess the 'connecting factors', including matters of convenience and expense, linking the proceeding to the first and second forums respectively. Assessing the number of, and weight to be accorded to, each of these factors will vary from case to case:

In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums.[3]

7 In James Hardie & Co Pty Ltd v Barry, Spigelman CJ made the following observation on the application of the Act to tort cases.

[I]n 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.[4]

8 In an affidavit before the court, the plaintiff has deposed as to her reasons for commencing the proceedings in Wodonga:

I commenced the proceedings in Wodonga for the following reasons:

(a) That although the accident occurred in Hobart, in Tasmania, I only attended the Royal Hobart Hospital briefly on the day of the accident, for an hour at the most, where they gave me pain killers. I then went to the private hospital in Hobart where they did an x-ray and put a temporary plaster on my injured wrist to try and keep it stable.

(b) I returned to the Royal Hobart Hospital the next day, where they gave me more painkillers (I believe it was Neurofen or over the counter type medication) and I was there for the next two hours before being admitted into the ward. I was then given a drip and more painkillers, before undergoing surgery at the Royal Hobart Hospital on Monday 28 January 2008.

(c) I stayed at the Royal Hobart Hospital until Wednesday, 30 January 2008, where [sic] I flew home that afternoon.

(d) I attended upon Mr Phillip Frawley, an orthopaedic [sic] surgeon in Albury, New South Wales, approximately a week after that. The Royal Hobart Hospital organised that appointment for me.

(e) I attended upon Mr Frawley three times in the next three months and had ongoing hand physiotherapy treatment at Health Focus approximately twice a week for about six weeks, and then once a week for approximately six month [sic].

(f) I then attended upon another hand physiotherapist, Ms Jenny Graetz of Flex Out Physiotherapy in Albury.

(g) Currently, I also attend upon my general practitioner, Dr Geoff Williams, regularly, approximately once every three months with respect to my injuries.

(h) Dr Williams then referred me to Mr P Slattery, an orthopaedic [sic] surgeon in Melbourne and I am scheduled to have surgery sometime in the near future, possibly October 2010.

(i) I also attended upon a local masseur, Ms Maureen Barry, a few times to help out with soreness and tension in my left arm.

(j) The two witnesses who will be required to give evidence in this matter, Mrs Anna Farley and Miss Cassie Dinon, both reside in Victoria. Mrs Farley resides in Wodonga and Miss Dinon in Melbourne.

(k) I am currently a full time student undertaking a Bachelor of Education and Early Childhood at Charles Sturt University, Albury-Wodonga campus. I am not currently working and I am a single parent of a six year old boy.

(l) I receive a sole parent pension, Family Tax Benefit and Child Support and these are my only income. They amount to approximately $14,000.00 per year although it varies a little depending on the child support.

(m) I will finalise my studies at the end of October 2010, which is why I plan to have my surgery then.

(n) I am the sole carer of a six year old boy and I get only a minimal break from child caring. His father does not participate much in my child's life and he resides in Swan Hill, which is at least four hours drive from Wodonga and he is getting married in the near future and has a new baby on the way. He has informed me that once the baby is born, the amount of child support will drop dramatically.

(o) I am in a dire financial situation, considering that I am currently not working and there are educational expenses to be considered, for both myself and my son who is attending a local Catholic school. The educational expenses for my child alone amount to $2,500 per year.

9 In summary, the plaintiff asserts that Victoria is the most appropriate forum for hearing her claim because: (1) almost all of her medical and therapeutic care has taken place in Victoria; and (2) the extent and nature of this care will form a significant part of her case against the defendant as well informing the witnesses that she will call. Furthermore, the plaintiff deposes as to her limited financial resources, and her responsibility to remain in Victoria in order to provide care for her child. Significantly, on one view, when deciding upon the most appropriate forum for conducting the proceedings, the financial circumstances of the plaintiff arise for consideration. It is apparent from her affidavit that she is a person of limited means. That said, she does not go so far in her affidavit as to depose that the transfer of the proceeding to the Supreme Court of Tasmania will stultify or unduly inhibit her prosecution of her case against the defendant.

10 In support of the summons, the defendant's solicitors filed an affidavit setting out the reasons why they believed Tasmania was a more appropriate forum for hearing the dispute:

1. The statement of claim filed in this matter by the plaintiff claims damages from the defendant in relation to personal injury allegedly sustained by the plaintiff on or about 26 January 2008 at a Hotel owned by the Defendant and located at Salamanca Place, Hobart in the state of Tasmania.
2. The defendant is a corporation capable of suing and being sued by and in its said corporate name and style and is a registered corporation pursuant to the Corporations Act with its registered office located in Tasmania.

1. I have been informed by Mr Peter Mellows, the Manager of the Defendant's Hotel in Hobart and do verily believe that as at the date of the Plaintiff's accident, the Defendant had contracted with a company known as Securitas Australia Pty Ltd for that company to provide security at the Defendant's premises.

1. I am further informed by Mr Mellows and do verily believe that as at the date of the Plaintiff's accident, general cleaning of the Defendant's Hotel Premise was undertaken by a local cleaning entity and that that cleaning entity, inter alia, treated the floors of the Defendant's premises and in particular the ramp upon which the Plaintiff allegedly slipped and which is referred to in paragraph 6 of her statement of claim with a non-slip product.

1. Correspondence originating from the Plaintiff's solicitors establishes that subsequent to the incident which is the subject of these proceedings occurring, the plaintiff was transferred from the Defendant's premises to the Royal Hobart Hospital by ambulance; had radiology performed in Hobart and obtained treatment from Doctors attached to or associated with the Hobart private Hospital.

1. The totality of all the information available to me suggests that accepting the possibility for some evidence from Dr Frawley and/ or a physiotherapist who are located in or around the Wodonga/Albury district and the fact that the Plaintiff resides in Wodonga, there is no connection between the events which form the subject of these proceedings which occurred in Hobart Tasmania and Wodonga Victoria.
2. The bulk of the evidence relating to liability namely the evidence concerning the general cleaning of the Defendant's premises, the events which took place on the night in question, the systems employed by the Defendant in relation to the maintenance of its premises and in particular cleaning whilst the defendant traded, will come from witnesses based in the Hobart region.
3. Should it be necessary for any Judge who hears this matter to inspect the ramp in question, the inspection will need to take place in Hobart.
4. The initial medical treatment obtained by the Plaintiff was provided to her in Hobart.
5. It is therefore my respectful submission that in terms of costs, it would be far more cost efficient and effective for this matter to be heard by the Supreme Court of Tasmania in Hobart rather than the Supreme Court of VIC [sic] in Wodonga.
6. The Defendant is registered in the state of Tasmania and the premises where the incident occurred are located in Hobart.

11 In summary, the defendant submits that the following factors are relevant; (a) the place of the alleged tort was Tasmania; (b) the law to be applied by any court determining the proceeding is the law of Tasmania; (c) the defendant's place of business is Hobart; (d) all of the defendant's liability witnesses are in Hobart; (e) it is likely that a view will be required; (f) even if no view is required, expert engineering evidence as to slip resistance will likely be required, which will necessitate attendance on site; and (g) some evidence as to injury is likely to come from Hobart witnesses as the plaintiff was hospitalised there initially.

12 The defendant also submits that the connection with Victoria is tenuous. Whilst it is acknowledged that the plaintiff lives in Wodonga and that she will call some evidence from medical and like witnesses in Wodonga and Melbourne as to her treatment, and some lay witnesses from both Wodonga and Melbourne on unknown matters, it is submitted that these reasons are not compelling and persuasive. It is argued that there is no need to consider that as medical and lay evidence can be given by video link. It is also submitted that such evidence is likely to be less controversial than liability evidence. Finally, and in any event, it is submitted that Wodonga is as close to Hobart as it is to Melbourne in terms of travel time.

13 Considering the matters submitted for the defendant I make the following observations:

(a) First, and indeed it was conceded by the plaintiff, the place of the alleged tort was Tasmania.

(b) Secondly, and it was acknowledged by the plaintiff, the law to be applied is the law of Tasmania.

(c) Thirdly, it was acknowledged that the place of business of the defendant is Hobart. Conversely, the place of residence of the plaintiff is Wodonga in the State of Victoria.

(d) Fourthly, it was submitted by the defendant, as already noted, that all of its liability witnesses are in Hobart. Whilst that may be so, such evidence could readily be provided by way of audio visual link and through the use of visual and digital tools. In a case such as this, there is no compelling or persuasive factor to lead to the conclusion that the defendant's liability witnesses should have the preferred opportunity to give their evidence in Hobart over and above other witnesses to be called by the plaintiff.

(e) Fifthly, in relation to the view. It was submitted by counsel for the plaintiff, and not challenged by counsel for the defendant, that there are opportunities to provide photographic and film evidence of the subject ramp. It was agreed between the parties that the subject ramp remains unchanged from the time of the accident.

14 As already noted, when deciding an application under s 5(2)(iii), it will generally be determinative of the issue of 'appropriate' court where the place of the tort and the residence of the parties coincide. This is only a general rule, and in this instance it is not the case that both parties are resident in the jurisdiction applied for. The defendant's other reasons in support of its application do not seem to me sufficiently persuasive to conclude that Tasmania is a more appropriate forum for the conduct of the trial.

15 In relation to expert engineering evidence as to slip resistance, it seems to me that such evidence could readily be given by way of audio visual link or digitally. In any event, that is a matter for the trial judge. Experts generally have the capacity to travel interstate. There does not appear to be any sound reason where, if such expert evidence needed to be given viva voce, it could not be given by way of an expert commuting from Hobart to the State of Victoria. I also interpolate that the converse applies with respect to the plaintiff. Just as she may call expert engineering evidence based in Victoria, such evidence can be given in the same form as the expert engineering evidence to be called on the part of the defendant.

16 In relation to the matters listed by the defendant, there is the matter of Hobart witnesses having to be brought from Hobart to Victoria. In cases such as this, where the witnesses may be divided across the Bass Strait, it is not an easy balancing exercise. However, weighing all matters up, there is no compelling evidence before me to support or persuade me that there is undue inconvenience to require Hobart witnesses to travel to the State of Victoria.

17 I further interpolate with respect to the argument that Hobart is as close to Melbourne as Melbourne is to Wodonga and indeed that Wodonga is four hours driving from Melbourne compared with one hour flying from Hobart, that when the matter comes on for trial, although it will be a matter for the parties, it may be that Melbourne is an appropriate half-way forum. Nevertheless, that does not bear on my assessment of the application before me; it is entirely a matter for the parties.

18 In relation to the evidence to be called by the plaintiff, I note that her medical evidence, in all likelihood the orthopedic specialist to be called, is based in Albury. Whilst it was submitted in the course of argument that medical evidence can be given audio visually, often there is difficulty with facilitating the giving of medical evidence at a convenient time.

19 Therefore, it seems to me, weighing all matters up, there is no sound basis to require the plaintiff to have her proceeding relocated to Tasmania.

20 The remaining matter to be considered is the financial circumstance of the plaintiff. In light of the matters in her affidavit, it may be inferred that she would face difficulty in relocating the proceeding to Hobart. She does not go so far, in her affidavit, as to depose that she is being represented by her lawyers on a 'no win, no fee' basis, nor does she go so far as to suggest that she is so impecunious that she cannot continue the proceeding if it is relocated to Hobart. However, that said, it is apparent that she does face some financial difficulty and weighing all matters up it seems to me that the plaintiff would face undue hardship in all the circumstances if required to continue her proceeding in the State of Tasmania.

21 The other matter raised by counsel for the defendant was that there was no apparent reason why the proceeding had been issued in the State of Victoria as distinct from the State of Tasmania, other than, perhaps, the personal convenience of the plaintiff. There was discussion between the bench and counsel concerning various statutory provisions on this point. At the end of the day it all amounts to speculation. A citizen is entitled to issue proceedings in the State of Victoria, as the plaintiff has, and I draw no conclusions from the fact that she has preferred to issue in Victoria as distinct from Tasmania.

22 It follows from the reasons I have recited, that the defendant has been unsuccessful in persuading me to exercise the discretion under s 5 of the Act. Accordingly, the summons will be dismissed.

1. The defendant's summons dated 19 April 2010 be dismissed.
2. The defendant pay the plaintiff's costs of the summons.

[1] [2004] HCA 61; (2004) 211 ALR 523, 14 (Gleeson CJ, McHugh and Heydon JJ).

[2] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 211 ALR 523, 564.

[4] James Hardy & Co Pty Ltd v Barry [2000] NSWCA 353, 361.