Plaintiff v Defendant

2 Constable Irwin was a constable in the Queensland police. On the night of his killing, he was on duty at the police station at Ferny Grove in north-west Brisbane. At the time, Sergeant Kylie Dunn was acting as the shift supervisor and station sergeant. Sergeant Dunn dispatched Constable Irwin and Constable Edwards to execute a warrant against Mr Craig Semyraha at 6 Regan Street, Keperra in north-west Brisbane. They arrived at the premises at about 10.30pm. Shortly afterwards, Constable Irwin was shot, apparently by Craig Semyraha. The Special Emergency Response Team (SERT) attended. SERT entered the house and found Craig Semyraha had turned his gun on himself with a single shot to the temple. He was dead. Constable Irwin was found in the yard of the premises. He was also dead.

3 Earlier that night, and unknown to Sergeant Dunn or the two constables, Craig Semyraha had committed an armed robbery at a motel in Kippa-Ring to the north of Brisbane. His involvement in the armed robbery was not discovered by the police until after he killed himself.

4 Mrs Irwin claims that the Queensland police failed to take reasonable steps to ensure that in attending at the premises to execute the warrant Constable Irwin was not exposed to an unnecessary risk of death or serious injury. Mr Semyraha had taken a quantity of methamphetamines on the night in question.

5 The State of Queensland applies under the Jurisdiction of Courts (Cross-Vesting) Act 1987[1] for an order that the proceeding be transferred to the Supreme Court of Queensland.[2] This Court must do so if it appears to the court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of Queensland.

6 It does not appear to me that the interests of justice will be served by determining the proceeding in the Supreme Court of Queensland rather than in the Supreme Court of Victoria. I accordingly dismiss the application.

7 The Jurisdiction of Courts (Cross-vesting) Act 1987 forms part of a common scheme adopted by the Commonwealth, and all the states and territories.

Whereas inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable - .... if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceedings will be transferred to the appropriate court.

9 Section 5 is headed "Transfer of proceedings." That section deals with various circumstances where proceedings may be transferred from one court to another. In several instances the court is directed to transfer the proceeding where it appears that it is more appropriate that the proceeding be determined by the other court.

10 The High Court of Australia held that provisions of the federal cross vesting statute were invalid that authorised the Federal Court to exercise jurisdiction (whether original or appellate) conferred on it by State law relating to cross-vesting of jurisdiction. This did not affect the validity of the scheme for cross-vesting between the Supreme Courts of the States.[3]

11 The provision relevant to this application to transfer this proceeding from the Supreme Court of Victoria to the Supreme Court of Queensland is in section 5(2)(b)(iii) of the Act. That 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

(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.

12 A court may transfer a proceeding on its own motion as well as on the application of a party or on the application of the Attorney-General of the Commonwealth or of a State of Territory.[4] An appeal does not lie from a decision of a court in relation to the transfer of a proceeding.[5]

13 The High Court of Australia has considered the application of the Act in BHP Billiton Limited v Schultz.[6] Since that decision, several decisions in this court have considered the relevant principles that should be applied.[7] Many of these principles are set out in the decision of Gillard J's in Ewins as has been recognised in subsequent decisions of this Court.[8]

(a) The Act requires that the [first] court should exercise the power of transfer whenever "it appears" that it is in the interests of justice that it should be exercised.[9]

(b) It is not necessary that it should appear that the first court is a "clearly inappropriate" forum.[10] It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.[11]

(c) The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.[12]

(d) The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.[13]

(e) The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.[14]

(f) It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.[15] Rather the jurisdiction must be exercised when "it appears" to the court that "it is in the interests of justice" that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued.[16] Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.

(g) The court should adopt what has been described as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.[17]

(h) The appropriate court is the natural forum as determined by connecting factors to that forum.[18]

(i) Relevant connecting factors include matters of convenience and expense[19] such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.[20]

(j) In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.[21]

(k) If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.[22]

(l) Factors which may be relevant to a tortious action are:[23]

(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 carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.

(iii) The convenience of 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 the provision of evidence by audio visual link.

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

(vi) The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.[24]

(m) As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort.[25] Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.[26]

(n) A relevant factor is whether the coincidence of the lex fori[27] and the lex loci delicti[28] will avoid debates concerning substantive and procedural law.[29]

(o) The plaintiff's choice of forum by itself is not a relevant connecting factor.[30]

(p) Each case depends on its own particular facts.[31]

(q) The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.[32]

15 Under s 5(1)(b) of the Jurisdiction of Courts (Cross-vesting) Act 1987 the question I must answer is does it appear to the Court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of Queensland rather than the Supreme Court of Victoria? If it does so appear, I must transfer the proceeding to the Supreme Court of Queensland. I have no discretion in the matter. If it does not so appear, I have no power under the Act to transfer the proceeding to the Supreme Court of Queensland.

16 In answering that question, I must have regard to factors relevant to the interests of justice such as cost, expense and convenience to the parties, and weigh such factors up to reach a conclusion. Again, I have no discretion in the matter. Each case is decided on its own facts. The circumstances of each litigant will differ from case to case even where there might be a veneer of similarity between the basic elements of the proceedings in other decided cases.

17 The law of negligence is part of the common law of Australia rather than of a particular State or Territory. I was not informed of any particular statutory laws of Queensland, Victoria or Northern Territory that may have any bearing on the case. There does not appear to be any particular convenience in favour of one court or the other arising out of the law to be applied.

18 Whether Queensland police breached any duty of care they owed the plaintiff will plainly be a major issue in the trial. Mr Dyer who appears for the State of Queensland contends that liability is a "hot topic." The State of Queensland proposes to call several witnesses of the circumstances surrounding the shooting of Constable Irwin, including witnesses on the state of mind of Mr Semyraha and whether it was reasonably foreseeable that Mr Semyraha was likely to be violent towards police. Further evidence will be led on what steps could have been taken to prepare Constable Irwin for the events that transpired on the night. This is a strong connecting factor to Queensland.

19 Bearing in mind the matters put forward by Mrs Irwin, as outlined below, it appears to me that it would be more convenient to the State of Queensland to call the evidence of the police in Queensland. On the other hand, this convenience can not be overstated. The use of video link evidence is common today and is regularly used in common law and other proceedings. The Supreme Court of Victoria has video link facilities in its various court rooms which are regularly used to take the evidence of interstate and even local witnesses. The witnesses do not even have to travel to a court to give their evidence. Facilities for using video link are common throughout Australia. Video link facilities have revolutionised the convenience and cost of dealing with witnesses who find it inconvenient to get to court. I accept that there are forensic advantages in the witness being present in court as against appearing by video link. I do not overlook these.

20 On the other hand, Mrs Irwin currently resides in Victoria. Mrs Irwin is treated by medical practitioners in Victoria and has been assessed for the purposes of this action by a practitioner in Victoria. It would be convenient to Mrs Irwin to call her treating medical professionals and medico legal consultants in Victoria as they will all presumably live in Melbourne. The respective advantages to each party on the issue of witnesses appears to balance out.

21 The defendant is obviously based in Queensland. Mrs Irwin was in the Northern Territory at the time she learned of her son's death. She alleges that the state of Queensland owed her a duty of care. The alleged negligent acts occurred in Queensland. Without more, on balance these connecting factors would tend towards Queensland being the natural forum for determining the proceeding.

22 It would, however, be a heavy burden on Mrs Irwin's finances and health to be required to pursue this proceeding in Queensland. Mrs Irwin is mentally unwell, as a result of her alleged psychiatric response to the death of her son. Her solicitor deposes that he believes that she is subject to depression, which is exacerbated at various times. Mrs Irwin is unable to engage in employment by reason of her condition and is in somewhat straitened financial circumstances. Mrs Irwin's support base is in Melbourne. Naturally, she will be a material witness in her own proceeding. The cost to her of going to Queensland for the trial is a relevant factor. Theoretically, she might be able to give evidence by video link. It would be unfair on her, though, to not be present at her own proceeding in a matter of such importance for her future. Any consideration of her position strongly favours the proceeding being determined in the Supreme Court of Victoria.

23 The State of Queensland has the full resources of the State behind it. It is well able to afford to bring witnesses to Melbourne, if that is in fact necessary. Naturally, the executive arm of the government of Queensland is based in Queensland. I am able to take judicial notice, however, of the fact that its servants and agents travel outside the State carrying on the affairs of the State. Lawyers acting for Queensland appear in the High Court in Canberra and in courts throughout the country. Similarly, Victorian lawyers attend to matters in Queensland. Queensland is a very large state. It is about the same distance from Brisbane to Cairns as it is from Brisbane to Melbourne. It is used to conducting its affairs over large distances.

24 As indicated earlier, each case must be decided on its own circumstances. Financial circumstances are relevant. Warren CJ in Kellow acknowledged the relevance of the financial circumstances of the plaintiff.[33] There the plaintiff had injured herself slipping in the defendant's premises in Hobart. She took proceedings in the Supreme Court of Victoria. The defendant applied to transfer the proceedings to the Supreme Court of Tasmania. The witnesses as to the event were in Tasmania. Her medical witnesses were in Melbourne and Albury. The plaintiff lived at Wodonga in Victoria. The Chief Justice concluded the plaintiff would face undue hardship in all the circumstances if required to continue her proceedings in the State of Tasmania. For that and other reasons, the Chief Justice found there was no sound basis to require the plaintiff to have her proceedings relocated to Tasmania.

25 Emerton J in Lloyd placed considerable emphasis on the personal circumstances of the plaintiff. The plaintiff alleged that she sustained injuries as the result of an operation she underwent at the defendant's hospital in Berri, South Australia. The plaintiff issued proceedings in the Supreme Court of Victoria. The proceeding was to be heard in Mildura. The plaintiff lived in South Australia but by the time of the trial would be living in Griffith in New South Wales. Emerton J took into account the witnesses and the proximity of Berri to Mildura. Importantly, Emerton J took into account that the plaintiff had secured a solicitor in Mildura after unsuccessfully trying to obtain one in Renmark where she lived. The solicitor acted on a no win/no fee basis. Emerton J said it was uncertain whether the plaintiff's solicitor would act for her in Adelaide. Emerton J said that the plaintiff may well be discouraged from prosecuting her cause of action if she was to start afresh to secure the assistance she needs. Emerton J refused the application of the Hospital to transfer the proceeding to the Supreme Court of South Australia.

26 Bearing all these matters in mind and giving each factor the weight it deserves, I have concluded that it does not appear to me to be in the interests of justice that the relevant proceeding be determined by the Supreme Court of Queensland. Accordingly, I have no power to transfer the proceeding to the Supreme Court of Queensland under the Act. The application must be dismissed.

[3] Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511. See discussion by Gummow J in Schultz at [47].

[5] Section 13. As Gillard J points out in Ewins v BHP Billiton Limited [2005] VSC 4 (Ewins) at [10] there is a right of appeal from a single judge to the High Court pursuant to s 73(ii) of the Constitution subject to leave.

[6] [2004] HCA 61; (2004) 221 CLR 400 (Schultz).

[7] Ewins; Hall v Australian Finance Direct Limited [2005] VSC 306 per Hollingworth J (Hall); Slater & Gordon Pty Ltd v Porteus [2005] VSC 398 per Whelan J (Slater & Gordon); McLeod v Munro [2005] VSC 375 per Dodds-Streeton J (McLeod) Simpson v Francke [2006] VSC 200 per King J (Simpson); Holt v Rorehan [2006] VSC 148 per Harper J (Holt);; Eden v Amaca Pty Ltd [2007] VSC 374 per Kaye J (Eden); Kellow v Irish Murphy's Pty Ltd [2010] VSC 239 per Warren CJ (Kellow); Lloyd v Riverland Regional Health Services Inc [2010] VSC 350 per Emerton J (Lloyd).

[9] Schultz at [14] per Gleeson CJ, McHugh and Heydon JJ and at [17] per Gummow J (with whom Hayne J agreed); and Ewins [16].

[10] The reference to a "clearly inappropriate" forum is the test adopted by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 that should be applied in an application to stay a proceedings on the grounds of forum non conveniens. In Schultz at [7]-[11] Gleeson CJ, McHugh and Heydon JJ distinguish between the test to be applied in such an application and the test that should be applied in an application under the Jurisdiction of Courts (Cross-vesting) Act 1987.

[12] Schultz at [14] per Gleeson CJ, McHugh and Heydon JJ when distinguishing between an application for a stay on the ground of forum non conveniens and an application under the Act.

[13] Schultz at [15] per Gleeson CJ, McHugh and Heydon JJ.

[14] Schultz at [62]-[63] per Gummow J (with whom Hayne J agreed); Ewins at [17].

[15] Schultz at [71] per Gummow J (with whom Hayne J agreed).

[16] Schultz at [71] per Gummow J (with whom Hayne J agreed); Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Rogers AJA at 727 (Bankinvest). In Ewins at [23] Gillard J held that although persuasive it was not adopted by the majority of the High Court. He said he was not prepared to accept that it represents the law.

Dodds-Streeton J in McLeod v Munro [2005] VSC 375 at [37] disagreed with the view that the applicant may bear some burden. Dodds-Street J found the observations of Gummow J in Schultz to be "highly persuasive." So to did Whelan J in Slater & Gordon at [21] and Harper J in Holt at [14].

Accordingly, in the absence of binding authority to the contrary, I should follow the observations of Gummow J with whom Hayne J agreed.

Harper J accepted In Holt at [14] that he agreed with Gummow J that it is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. He held, however, that an applicant bore some burden as unless the court decides it is in the interests of justice that the proceedings be determined elsewhere, the proceeding will stay where it is.

In Eden Kaye J observed that by reason of theses cases the law in Victoria on the onus of proof or onus of persuasion is unsettled. He pointed out that it is the applicant who seeks to persuade the court that it is otherwise in the interests of justice that the second court determine the case. He said "to that extent an "onus" of persuasion falls on the applicant. (Eden at [12]).

[17] Bankinvest at 714 per Street CJ; approved in Schultz at [13] per Gleeson CJ, McHugh and Heydon JJ

[18] Schultz at [10] per Gleeson CJ, McHugh and Heydon JJ; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 the House of Lords (Spiliada); Ewins at [31].

[19] Preamble to the Act "Whereas inconvenience and expense have..".

[20] Schultz at [18]-[19] per Gleeson CJ, McHugh and Heydon JJ.

[21] Schultz at [19] per Gleeson CJ, McHugh and Heydon JJ.

[26] James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 557 (James Hardie) at 361 per Spigelman CJ.

[29] Schultz at 262 per Gummow J (with whom Hayne J agreed).

[30] Schultz; Ewins at [12]. Gummow J said at [77] in Schultz "The phrase "otherwise in the interests of justice" in sub para (iii) of s 5(2)(b) of the Cross-vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff."