Plaintiff v Defendant

Supreme Court of Victoria|2012-06-27|Before: Hollingworth J

PRACTICE AND PROCEDURE - Cross-vesting legislation - Application by defendant to transfer proceedings to the Supreme Court of South Australia - Plaintiff alleged that injured in Adelaide store due to defendant's negligence - South Australian law applicable - Location of witnesses and parties - Plaintiff's health and financial circumstances - "interests of justice" - Application refused - Jurisdiction of Courts (Cross-vesting) Act 1987 s5(2)(b)(iii)

2 By an amended summons dated 28 May 2012, Woolworths seeks to have the proceeding transferred to the Supreme Court of South Australia, pursuant to s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987. That section requires the court to consider whether it is "in the interests of justice" that the proceeding be transferred to the South Australian court.

3 The principles in relation to such an application were comprehensively considered by the High Court in the decision in BHP Billiton Limited v Schultz[1], and have been applied in many subsequent decisions, including in this court.

4 The High Court affirmed that, in determining pursuant to s5(2)(b)(iii) whether it is in the interests of justice to order a transfer, the court must be satisfied as to which court is the "more appropriate forum", in the sense that it has the most real and substantial connection with the subject matter of the proceeding. This has been described as involving a "nuts and bolts" exercise.[2]

5 There is no exercise of judicial discretion involved in such an application. If it appears to the court that it is in the interests of justice that the proceeding be transferred, then the court "shall transfer" the proceeding.

6 Each case depends on its own particular facts. Factors which may be relevant include the connection between the alleged conduct and the jurisdiction, the governing law, as well as issues of cost and convenience to the parties, including where the parties and witnesses live and carry on business. There is no presumption that a plaintiff's initial choice of forum carries independent weight.

7 In James Hardie & Co Pty Ltd v Barry[3], Spigelman CJ said that in tort cases:

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.

8 But, in this case, the parties are not both resident in South Australia. Ms Taylor lives in Victoria, and it is not clear that Woolworths has a single residence in the relevant sense.

9 The substantive law to be applied in this case is the law of South Australia, the place where the alleged tort occurred.

10 However, there is no suggestion that the statutory or common law to be applied is relevantly or substantially different between Victoria and South Australia, or that there would otherwise be difficulties for a Victorian judge in applying South Australian law in this case.

11 Nor is it suggested that there is any relevant difference in the procedural law of the two States, or that the trial could be heard more speedily in one court than the other.

12 Woolworths is a very substantial public company, conducting numerous supermarket businesses throughout Australia. It is not suggested that the location of its corporate headquarters is relevant to this application. Woolworths' nation-wide nature is highlighted by the fact that, even though this incident occurred in Adelaide, the claims officer managing Ms Taylor's claim lives and works in Brisbane. There is no suggestion that Woolworths would be unable to satisfactorily defend itself if this proceeding remains in Victoria.

13 At the time of the incident, Ms Taylor was living in South Australia. Shortly thereafter, she moved to Bright, a town which is about one hour away from Wangaratta, in north eastern Victoria. She has issued this proceeding in the Wangaratta registry of this court, and wishes to have the trial heard in Wangaratta during one of the regular circuits there.

14 When she moved to Bright, she moved in with her daughter, Cathy Bugg, and Ms Bugg's two young children. She is assisted in her domestic chores by her daughter and by a visiting home carer.

15 Ms Taylor relies in particular upon the following personal circumstances, which she says would present problems for her in conducting the trial in Adelaide:

(a) As a result of her back injuries, her spine sometimes "collapses" on her, necessitating hospitalisation. She is fearful of her back collapsing when she has no assistance, as would be the case in Adelaide;

(b) Her back injuries cause serious pain and restrict her ability to sit in a car or bus for the time it would take to travel to Adelaide;

(c) In any event, she does not own a car or have access to one which she could drive to Adelaide. In Adelaide, she would be dependant on public transport, as she is unable to walk far;

(d) She suffers from anxiety and panic attacks, for which conditions she is receiving treatment and medication;

(e) Her treating doctors and physiotherapist are all located in or around the Bright/Wangaratta area.

(f) She receives a modest disability support pension from Centrelink, which is completely consumed by her living expenses. She does not have sufficient funds to pay to travel to, or pay for accommodation in, Adelaide; and

(g) She has two estranged, adult children who live in or around Adelaide. One of them has assaulted her in the past and the other has threatened to do so. She is fearful of encountering them in Adelaide.

16 Ms Taylor does not depose that the transfer of the proceeding to the Supreme Court of South Australia would preclude her altogether from being able to continue her case against Woolworths. I am nevertheless satisfied that it would be substantially more difficult, stressful and expensive for her to conduct proceedings and participate in a trial in South Australia.

17 In several recent decisions, judges of this court have refused to order the transfer of proceedings, where (as here) to do so would cause undue personal hardship, particularly having regard to the plaintiff's financial position.[4]

18 Ms Taylor says that she slipped due to Woolworths' failure to inspect or clean, or to have an adequate system for inspecting or cleaning, the supermarket floor and/or Woolworth's failure to warn that the floor was wet, slippery and dangerous.

19 Woolworths will wish to call evidence from its staff in relation to its systems of inspection, cleaning and warnings. The supporting affidavit sworn by Malcolm Carroll, the claims officer managing Ms Taylor's claim, contains inadequate detail regarding the nature and extent of possible inconvenience to witnesses if the proceeding remains in Victoria. He refers in paragraph [9] to an unspecified number of witnesses, who it is said will be called to give evidence in relation to these matters, all of whom are said to live and work in South Australia. He then baldly asserts that they are all "responsible for the care of young children such that they are unable to travel to Victoria to give evidence."

20 The court has no idea whether Mr Carroll is talking about one or two witnesses, or a large number of witnesses. Assuming that these witnesses are still working for Woolworths (and there is no evidence to suggest the contrary), they presumably have some sort of child care arrangements in place which enable them to attend work. On the limited material before the court, it seems unlikely that any of these witnesses would be required to give evidence for more than an hour or two each. There is insufficient evidence to persuade the court that they would be unable to make suitable child care arrangements, to enable them either to fly to Victoria to give evidence in person, or to give evidence by video-link from Adelaide.

21 Mr Carroll also refers in paragraph [10] to an unnamed man, who he describes as "the only independent witness to the incident." The man is said to be unable to travel to Victoria to give evidence for a number of reasons, including his poor health, his responsibilities to his two children (aged 6 and 8), his destitution, and the fact that he lives in Adelaide and has never travelled out of Adelaide.

22 The man's financial position is irrelevant to this application; if Woolworths wishes to call him as a defence witness, no doubt Woolworths can (at least in the first instance) pay for his travel and ancillary expenses. Insufficient information has been provided to enable me to give much, if any, weight, to the man's responsibilities to his school-aged children (for example, it is not suggested that he is their sole carer, or that there are no suitable child care arrangements that could be made). And, absent any further explanation, the fact that he has never travelled out of Adelaide also seems to have little, if any, relevance to this application. I have taken into account the fact that the man has suffered two heart attacks, and due to breathing and spinal injuries he is unable to travel long distances. However, Woolworths does not suggest he could not give his evidence by video-link, or that it would suffer any prejudice if he did so.

23 Almost all of Ms Taylor's medical and other therapeutic care - which remains ongoing - has taken place in north-eastern Victoria. Evidence in relation to this care will form a significant part of her case against Woolworths, as well as informing the witnesses she will call.

24 Ms Taylor's solicitor, Ms Helen Collins, has deposed that the following witnesses will be need to be called:

(a) Ms Taylor's current treating general practitioner, Dr Leigh Bennie, who practices in Myrtleford (approximately 30 minutes from Wangaratta);

(b) Other treating doctors who have seen Ms Taylor in relation to the injury:

(d) Attending doctors (names and number unspecified) at Wangaratta Hospital;

(f) Ms Rebecca Morrison, a physiotherapist who treats Ms Taylor at Myrtleford; and

(g) Independent medico-legal experts from Albury-Wodonga or Wangaratta (yet to be retained).

25 In so far as Ms Taylor will need to call any doctors based in South Australia, who treated her immediately after the incident, Ms Collins proposes that their evidence could be given by video-link.

26 Ms Taylor would also wish to call her daughter, Ms Bugg, to give evidence. As mentioned earlier, Ms Bugg lives in Bright with her two young children. As with the Woolworths' witnesses, insufficient information has been given to enable me to assess whether Ms Bugg's family obligations would in fact preclude her from coming to Adelaide to give evidence. However, I note and accept that she has limited means and would be unable to travel to give evidence for financial reasons.

27 On the evidence before the court, it seems that the majority of witnesses are located in and around the part of Victoria where Ms Taylor lives, and where this court sits regularly on circuit. There would be more inconvenience and expense involved in those witnesses travelling to Adelaide, than in the Adelaide witnesses travelling to Wangaratta, or giving their evidence by video-link.

28 Furthermore, Woolworths can easily afford to pay the travel costs of any witnesses it chooses to bring to Victoria. The same cannot be said of Ms Taylor, were she forced to run the trial in South Australia.

29 Having weighed up all the competing considerations, I am not persuaded that it is in the interests of justice that the proceeding be transferred to South Australia.

1. The application by amended summons dated 28 May 2012 is dismissed.

2. The defendant pay the plaintiff's costs of and incidental to this application, to be taxed if not agreed.

[2] Ibid at [13] per Gleeson CJ, McHugh and Heydon JJ, quoting from Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 713-4.

[4] Kellow v Irish Murphy's Pty Ltd [2010] VSC 239 per Warren CJ at [20]; Lloyd v Riverland Regional Health Service Inc [2010] VSC 350 per Emerton J at [24]; Irwin v State of Queensland [2011] VSC 291 per Robson J at [22] and [24]-[25].

Courts (Cross-vesting) Act 1987

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