//
[2013] VSC 115
General information, not legal advice.
Supreme Court of Victoria
2013-03-19
CAVANOUGH J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Application to transfer proceeding to Supreme Court of New South Wales - Whether proposed transfer in the interests of justice - Tort claim - Accident in New South Wales - Whether New South Wales or Victoria the more appropriate forum - Observations as to significance of place of alleged tort - Hardship to plaintiff - Application refused - Jurisdiction of Courts (Cross-Vesting) Act 1997, s 5(2).
1 The defendant, Nage Holdings Pty Ltd, applies to have this proceeding transferred to the Supreme Court of New South Wales, with a view to it being heard in Wagga Wagga.
2 The plaintiff, Mr O'Donnell, claims that he slipped as a result of the negligence of the defendant as the occupier of a hotel located in Wagga Wagga. He says that he fell on an external staircase of the hotel and suffered injuries including a right temporal fracture, acute haemorrhage in various lobes of the brain, cognitive impairments, rib fractures and a punctured and collapsed lung.
3 For the reasons set out below, it does not appear to me that it is in the interests of justice that this proceeding be transferred to New South Wales. Accordingly, the defendant's summons filed 13 November 2012 will be dismissed.
4 The application is made under s 5(2)(b)(iii) of the Jurisdiction of the Courts (Cross-Vesting) Act 1987 (Cth) ("the Act").[1] Section 5(2) of the Act relevantly provides that:
(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.
5 Principles for determining whether it is in the interests of justice for a proceeding to be transferred to another State or Territory under the corresponding provisions of the cross-vesting legislation of New South Wales were considered by the High Court in BHP Billiton Ltd v Schultz.[2]
6 In Schultz, the plaintiff had allegedly contracted a dust borne disease in South Australia. He sued in the Dust Diseases Tribunal of New South Wales. Sully J of the Supreme Court of New South Wales rejected BHP's application to cross-vest the case to the Supreme Court of South Australia. The cross-vesting Acts uniformly provide that no appeal lies from a decision on a transfer application. However, if special leave is obtained, an appeal lies to the High Court under s 73(ii) of the Constitution. Having obtained special leave, BHP appealed to the High Court accordingly. The appeal was allowed. All judges of the High Court agreed that Sully J had adopted an erroneous approach. In particular, his Honour had erred by taking into account, first, the plaintiff's choice of forum as a matter not to be lightly overridden and, second, the advantages that would have been conferred on the plaintiff by s 11A of the Dust Diseases Tribunal Act 1989 (NSW), being a provision which conferred on a claimant an ability to make a further claim in the event that an additional dust-related condition developed at a later stage. Four judges (Gummow, Hayne, Kirby and Callinan JJ) determined, in separate individual judgments, that an order should be made for the transfer of the case to South Australia. The other three judges (Gleeson, McHugh and Heydon JJ) delivered a joint judgment. They were of the view that it was "far from clear" that the interests of justice required that the proceedings be transferred to South Australia; and they would merely have remitted the matter to Sully J for reconsideration.[3] Thus the joint judgment of Gleeson, McHugh and Heydon JJ was a dissenting judgment.
7 Nevertheless, the following succinct statement of principle by Gleeson, McHugh and Heydon JJ accorded with the views of all members of the Court:
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.[4]
8 For the purpose of determining the "more appropriate" forum, two of the judges in the majority, namely Kirby J and Callinan J, laid stress on the concept of the "natural" forum which, in their Honour's view, would "normally" or "usually" be the place where the alleged wrong was committed, and all the more so in cases where the parties were resident in the corresponding jurisdiction.[5]
9 With respect to cases in tort in particular, Callinan J commented that, at least prima facie, the forum of the jurisdiction in which the tort was committed will be better equipped to deal with the issues. The parties would be likely to have a presence in the jurisdiction. Proximity to the courts there was likely to lead to both expedition and savings in expense. But of at least equal importance was the fact that the events giving rise to the claim were at the time subject to, and regulated by, the laws of the jurisdiction where they occurred. The court of that place should be the most experienced and efficient in evaluating and applying such laws. One relevant law would usually be the law relating to insurance. Other state laws would usually apply. Callinan J said:
The parties' reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the court of that State.[6]
10 Gummow J did not relevantly refer to the "natural" forum, but, like Callinan J, his Honour did consider that the courts of South Australia provided the forum which gave effect to the "reasonable expectation of the parties" and to the policy manifested in the transfer provisions of the cross-vesting legislation. That had the advantage for the ready resolution of litigation that the lex fori and the lex loci deliciti coincided, and debates as to classification of statutory provisions as substantive or procedural could not arise. In holding that it had been inappropriate for Sully J to take into account the advantages to the plaintiff arising from s 11A of the Dust Diseases Tribunal Act in the way that Sully J had done, Gummow J emphasised that the "interests of justice" were even handed.[7] On the other hand, it seems to be implicit in the judgment of Gummow J that factors such as comparative speed and efficiency and comparative expense will be relevant if there is satisfactory evidentiary material about them.[8] Hayne J indicated his agreement with Gummow J on these aspects of the appeal.
11 Kirby J countenanced somewhat greater breadth and flexibility in relation to the relevant factors. His Honour noted that the cross-vesting legislation required an ultimate judicial decision framed in terms of criteria expressed in very general language ("the interests of justice", "more appropriate"). His Honour said that it was inherent in such general language that cases would arise where there was room for difference of judicial opinion. That fact would restrain an appellate court from disturbing the evaluation by the primary judge where the "connecting factors" were otherwise finely balanced.[9]
12 In their dissenting judgment, Gleeson CJ, McHugh and Heydon JJ expressed some doubt about the usefulness of the concept of the "natural" forum. They said that difficulty may attend the identification of the natural forum for litigation.[10] Their Honours seemed to place considerably less weight on the place of the wrong. They apparently approved of Street CJ's earlier description of the task as one calling for a "nuts and bolts management decision".[11] They envisaged that the decision may involve considering a wide range of "connecting factors", which might include the availability of witnesses, where each party resided (or was situated) and matters of cost, expense and convenience.[12] They accepted that the interests of justice were not the same as the interests of one party. However, in their Honour's view, the interests of the respective parties, which might in certain respects be common (as, for example, cost and efficiency) and in other respects conflicting, would arise for consideration.[13] They noted that weighing considerations of cost, expense and convenience, even where they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications. But, as already mentioned, theirs was a dissenting judgment.
13 Since Schultz was decided, defendants have made numerous applications in this Court for a transfer under either the Commonwealth cross-vesting provisions or the corresponding Victorian provisions. As far as I am aware, not a single application has succeeded.[14] Many of these cases were referred to by Robson J in his Honour's summary of relevant principles in Irwin v State of Queensland.[15] In the argument before me, counsel on both sides referred to his Honour's summary without suggesting that it was in any way erroneous. Indeed, it was not submitted by either party that any of the post-Schultz Victorian cases was affected by legal error or was otherwise wrongly decided.[16]
14 More particularly, both sides proceeded on the basis that the task for the Court was simply a "balancing exercise" in relation to a long list of possibly relevant "connecting factors".[17] Neither side submitted that the relevant principles required that the place of the alleged wrong be treated as the starting point, or that it be given any particular weight amongst relevant factors.
15 However, reflecting on this question since the hearing, it has occurred to me that the majority judgments in Schultz may require that the place of the wrong be taken as the starting point and be given particular weight in every case. Certainly, it is no longer the case that weight is to be given to the plaintiff's choice of forum. There is no onus on the defendant to displace that choice as such.[18] The further tenor of the majority judgments in Schultz appears to be as follows. Generally speaking, the place of the wrong will be the "natural" forum or the forum which will give effect to the "reasonable expectation of the parties", especially if the parties are resident there. Hence the courts of that place will usually be the "more appropriate" forum. Therefore, it will usually be in the "interests of justice" that the proceeding be heard and determined in those courts. The "interests of justice" concern the interests of both parties, rather than the selection of the most advantageous, or the least disadvantageous, forum for one of them - for that reason, the "interests of justice" should be judged by more objective factors.[19] The court must transfer a proceeding if it appears to the court that to do so is "in the interests of justice". Hence it is inapt to describe the power of transfer as a discretionary power.[20] On the other hand, the power involves "the judicial evaluation of a number of factors".[21]
16 In the view that I take of this case overall, it is not necessary for me to decide whether there is any disharmony between Schultz and the subsequent Victorian cases or whether it must be taken as a starting point that the place of the wrong will "usually" or "normally" be the "more appropriate" forum. Even if that be so, it will always be possible that sufficiently powerful factors connecting the proceeding to the forum chosen by the plaintiff will render the case other than "normal" or "usual"; and that the "interests of justice" will best be served by refusing a transfer to the courts of the place of the alleged wrong. In my view, that is the situation here, as will appear. It follows that there is no need to relist this matter for a further hearing on the questions of principle. I will assume in favour of the defendant, without deciding, that the starting point is that the place of the wrong will "usually" or "normally" be the appropriate forum, and that particular weight should always be given to that factor. On the facts of this case, the outcome of the application would be the same in any event.
17 In the writ in the present case, Mr O'Donnell specifies the place of trial as Melbourne. However, with the concurrence of both parties, the application before me proceeded on the assumption that Mr O'Donnell would at some time in the future successfully apply to have the trial set down for hearing at Bendigo, Victoria, where he currently resides. Argument from counsel thus centred on whether Bendigo or Wagga Wagga was the more appropriate forum for the hearing of Mr O'Donnell's case.
18 In an affidavit filed on 6 February 2013, Mr O'Donnell's solicitor[22] deposed that:
19 It is implicit in the affidavit that the plaintiff's current solicitor would cease to act for him if the proceeding were to be transferred to New South Wales. The argument before this Court proceeded on that basis.
20 Reports from Mr O'Donnell's treating practitioners were exhibited to his solicitor's affidavit, including one from a Dr Mohamad El Ali, Mr O'Donnell's treating general practitioner, which states that:
travelling long distances to [W]agga [W]agga ... is not recommend [sic]. Travelling will be too stressful and [Mr O'Donnell] can get lost easily and ... to have a family member travelling with him as carer/guardian will cause a lot of inconvenience and financial issue [sic] to him and his family.
21 Dr Mark Newton, neurologist, states in a separate report that Mr O'Donnell:
has had a significant head injury resulting in cognitive impairment, showing defects with executive functions, short-term memory and attention.
22 Counsel for Mr O'Donnell submitted that, because of his medical condition, Mr O'Donnell would find it more difficult to give oral evidence at a trial in Wagga Wagga, as this would involve travel from Bendigo and staying in an unfamiliar hotel in Wagga Wagga. There are no direct flights between Bendigo and Wagga Wagga. It is common ground that the trip between Bendigo and Wagga Wagga would take approximately 4½ hours, whether undertaken by car or by air via Melbourne.
23 I am satisfied, for the purposes of this application, that Mr O'Donnell's cognitive impairment restricts his ability to travel long distances and to carry out tasks that require short-term memory and reasonable attention. How Mr O'Donnell's condition impacts on the interests of justice is considered further below.
24 In written submissions and at the hearing, counsel for Mr O'Donnell submitted that the majority of witnesses in the proceeding will be those who reside in, or near, Bendigo. Counsel also submitted at the hearing that the matter could be set down for trial at Bendigo in August 2013, thereby ensuring a speedy resolution of the matter.
25 To summarise, Mr O'Donnell claims that Victoria (and specifically Bendigo) is the more appropriate forum for the hearing of his damages claim because he has serious medical conditions which affect his ability to travel and which in turn would affect his ability to prosecute his case properly; his treating physicians are located in Bendigo; the majority of witnesses to be called in the proceeding reside in Bendigo; his financial situation would restrict him from being able to regularly attend New South Wales for the purposes of prosecuting his case; and, were the proceeding to be transferred to New South Wales, he would risk not being able to find a solicitor who was willing to act for him on a no win, no fee basis, which would effectively prohibit him from bringing his claim at all.
26 In an attempt to remove any financial impediments to Mr O'Donnell conducting his claim in New South Wales, the defendant's counsel produced to the Court a copy of a letter to Mr O'Donnell's solicitors in which the defendant offered to pay the reasonable financial costs of Mr O'Donnell and his carer with respect to a hearing in Wagga Wagga, including food and drink. A memorandum later provided to the Court, by leave, on 15 February 2013 indicated that this offer was increased so as to include "reasonable" additional travel costs for Mr O'Donnell and his carer, estimated by the defendant as two pre-trial consultations with a new solicitor in New South Wales. It was further indicated that none of these costs would be required to be repaid to the defendant if Mr O'Donnell was ultimately unsuccessful in the proceeding.
27 The defendant's solicitor, in an undated affidavit, deposed that he was aware of certain practitioners in Wagga Wagga who conducted personal injury litigation on behalf of plaintiffs on a no win, no fee basis.
28 In written submissions and at the hearing, counsel for the defendant raised the following matters and contentions:
29 Counsel for the defendant also referred the Court to medical records from the Murrumbidgee Area Local Health Service which mentioned that Mr O'Donnell had been playing the piano and looking to do a short mechanics course. Counsel sought to rely on this material as evidence of Mr O'Donnell's cognitive capacities. This was, however, met with a supplementary affidavit by Mr O'Donnell's solicitor, explaining that Mr O'Donnell's ability to play piano has diminished since the date of the accident, and that Mr O'Donnell has not in fact attended any course in mechanics.
30 The defendant also pointed to references in the medical records to Mr O'Donnell's children having provided him with financial assistance in the past. This was conceded in Mr O'Donnell's solicitor's supplementary affidavit, although Mr O'Donnell's counsel submitted from the bar table that his children were not wealthy themselves and only provided limited financial assistance when his circumstances were "desperately grim".[24]
31 In summary, the defendant submits that a transfer to New South Wales would not prejudice Mr O'Donnell because he could find a lawyer who would take his case on a no win, no fee basis and because the defendant would pay for his (and his carer's) transport and accommodation costs. The defendant submits that New South Wales is the more appropriate forum, given that the incident occurred in that State, the defendant's registered office is located in that State, the defendant is likely to call various police and ambulance officers and medical practitioners who are based in Wagga Wagga, and a proceeding in Victoria would lead to a disruption of the Wagga Wagga community.
32 As mentioned above, I proceed on the basis that the proper starting point is that, because the alleged wrong occurred in New South Wales, the interests of justice would usually or normally indicate that the case should be transferred to New South Wales. The parties agree that the substantive rights and liabilities of the parties are governed by the laws of New South Wales and that the relevant provisions of the Civil Liability Act 2002 (NSW) are not all identical to the corresponding provisions of the Wrongs Act 1958 (Vic). On the other hand, although senior counsel for the defendant did submit in another context that this case involved some "complexity",[25] he did not submit that the relevant New South Wales provisions were any more complex than the corresponding Victorian provisions. He made no attempt to persuade me that the statutory differences would produce real difficulty for the parties or for the Court in this particular case. Indeed, as I have already indicated, he did not expressly rely at all on any of the observations made in Schultz about the significance of the applicable law.
33 I accept that Mr O'Donnell resides in Victoria; that he and his wife receive a fortnightly pension of only $720 and have no other income or savings; and that most of the witnesses whom Mr O'Donnell plans to call reside in Bendigo.
34 On the other hand, I accept that the defendant will call various witnesses who reside in Wagga Wagga; and that the defendant's registered address and principal place of business is located in New South Wales.
35 The assertion by counsel for the defendant that a view of the external stairwell will be required is relevant but not determinative. I agree with counsel for Mr O'Donnell that photographs and/or video footage of the hotel's external steps might sufficiently inform the Court of their physical layout. Expert witnesses would also be free to visit the site before the hearing to inform their opinion. If need be, this Court could travel to Wagga Wagga for a view without Mr O'Donnell needing to be present.
36 I am not persuaded by counsel's submission regarding the potential strain on the resources of the Wagga Wagga community. No affidavit material from the police or ambulance services in that area was provided. It is likely that those services can avoid any substantial inconvenience arising from having a staff member or two absent for the short period that would be involved. Sensible witness arrangements should ensure that any serious disruption is avoided.
37 The parties made submissions regarding the fact that Mr O'Donnell's trial is currently set down to be heard before a jury. If the proceeding were transferred to New South Wales, it is virtually certain that Mr O'Donnell's claim would proceed before a judge alone, as is usually the case with personal injury trials in the Supreme Court of New South Wales.[26] Counsel for the defendant submitted that, if its application for transfer was unsuccessful, the defendant might apply for the proceeding to be heard by judge alone in this case, given the alleged "complexity" of the case.[27] In the end the parties agreed, and I accept, that the matter of whether the trial is to be by jury or judge alone is a neutral one for the purposes of the present application.[28]
38 In my view, there are three major factors connecting this matter to Victoria which are of sufficient strength and importance to take the case out of the usual or normal run of cases, to displace any prima facie requirement that the proceeding should be heard and determined by the courts of New South Wales, and to outweigh (by a large margin) the combined force of all the factors connecting the proceeding to New South Wales. These major factors are: (i) that if the proceeding were transferred to New South Wales Mr O'Donnell would lose his current legal representation and would face considerable uncertainty as to whether he could find a solicitor from New South Wales to act for him on a no win, no fee arrangement; (ii) the financial difficulties Mr O'Donnell would likely face funding litigation in New South Wales; and (iii) the difficulties he would likely experience, because of his medical conditions, in giving evidence and otherwise prosecuting his claim in New South Wales. In my view, nothing said by the judges in the majority in Schultz precludes me from taking these matters into account. Moreover, the appropriateness of taking them into account is supported by Lloyd v Riverland Regional Health Service Inc,[29] a decision of Emerton J, which was discussed during the argument before me without any suggestion that it was wrongly decided.
39 Lloyd concerned a medical negligence claim by a plaintiff of limited means.[30] Proceedings had been issued in Victoria, despite the fact that South Australia was the location of the plaintiff's residence, of the defendant's hospital and of the alleged tort. Emerton J noted that the plaintiff had been able to find a solicitor on a no win, no fee basis, and that the solicitor had also organised for the plaintiff's disbursements to be paid through the Victorian Law Aid scheme, whereas the plaintiff's ability to prosecute her case in South Australia was "less certain." Her Honour found that "the only direct connection to Victoria is the plaintiff's solicitor", before holding that, nonetheless, it was not in the interests of justice for the proceeding to be transferred to South Australia. Her Honour said:
[27] Although I have no doubt that the Supreme Court of South Australia would be able to hear the plaintiff's case expeditiously and efficiently, and the plaintiff may be able to obtain financial assistance from the relevant South Australian scheme to assist her with the litigation, the requirement to transfer the proceedings to Adelaide introduces a real element of uncertainty for the plaintiff. It is uncertain whether her solicitor would be prepared to act for her in Adelaide; her prospects of obtaining financial assistance for litigation in South Australia are equally uncertain. She may well be discouraged from prosecuting her cause of action if she has to start afresh to secure the assistance that she needs.
[28] The fact that the relevant laws are the laws of South Australia should be no barrier to the proper administration of justice in this case. Judges of the Supreme Court of Victoria are practised in applying the laws of other jurisdictions, including South Australia. Moreover, other than naming the relevant South Australian statute governing personal injuries litigation, no submission was made that the matters alluded to by Callinan J in Schultz would have a particular bearing on the conduct and determination of the proceeding.
40 Mr O'Donnell's position is considerably stronger than that of the plaintiff in Lloyd who was in any event successful in resisting the application for transfer in that case. In Lloyd, the "only direct" connecting factor to Victoria was the Victorian location and activities of the plaintiff's solicitor. However that connection was held to be very important and to tip the scales in favour of the plaintiff. In the present case, not only does Mr O'Donnell's solicitor practise in Bendigo, but, of course, Mr O'Donnell himself resides there.
41 The defendant's solicitor sought to counter the effect of the potential difficulty in finding a solicitor on a no win, no fee arrangement by deposing that there are solicitors that conduct litigation in Wagga Wagga on such a basis. However, it is by no means certain that Mr O'Donnell could find a solicitor in New South Wales willing to take on his case. I am in no position to assess the likely degree of the attractiveness of the case to a putative Wagga Wagga-based solicitor. This uncertainty counts strongly against New South Wales being the more appropriate forum.
42 Even if Mr O'Donnell were able to secure new legal representatives in Wagga Wagga, he may not be able to meet them or engage with them sufficiently often or on a satisfactory basis during the preparatory stages of the proceeding. The defendant's offer to pay for expenses associated with two conferences in Wagga Wagga with new lawyers prior to the trial is unpersuasive. Such an arrangement would make Mr O'Donnell financially dependent on the defendant to litigate his claim. Mr O'Donnell would be greatly constrained in how he and his lawyers chose to prepare for trial and to communicate regarding his instructions. Further, as noted by Mr O'Donnell's counsel, Mr O'Donnell would still be left to fund the travel expenses of his witnesses. Failing that, the majority of the witnesses in the trial would have to give evidence via video link. Such an arrangement would be undesirable. Further, if new solicitors were to require him to finance himself the engagement of expert witnesses, he would be unable to do so. By contrast, his current solicitors are apparently prepared to "carry" him in that regard.
43 Kellow v Irish Murphy's Pty Ltd[31] is another Victorian case that was discussed in argument and not criticised by either party. Kellow involved an application for transfer of a personal injuries claim from Victoria to Tasmania.[32] The financial circumstances of the plaintiffs were treated as a highly relevant factor. Warren CJ said:
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.
44 As my earlier remarks indicate, the application for transfer was refused. Mr O'Donnell's financial position is even clearer, and considerably more dire. By contrast, the defendant would have no financial difficulty in bringing its witnesses to Bendigo.
45 Further, Mr O'Donnell's medical conditions are such that there is a real risk that his ability to give oral evidence will be diminished if the trial is heard in Wagga Wagga. The medical evidence indicates that the deleterious effects of travel and dislocation are likely to reduce his ability to do himself justice in the witness box. This represents a significant risk that the interests of justice will be prejudiced.
46 One may also add that the majority of the witnesses whom Mr O'Donnell proposes to call (including himself) are resident in Bendigo.
47 Notwithstanding the starting point which I have assumed to be appropriate, the matters favouring a transfer to New South Wales are outweighed by the particularly strong countervailing factors in this case. It would not be in the interests of justice for the proceeding to be transferred to New South Wales. Indeed the hardship to the plaintiff would be so great as to imperil the interests of justice. Victoria is the more appropriate forum for the hearing of Mr O'Donnell's claim. Accordingly, the defendant's application under s 5(2)(b)(iii) of the Act will be dismissed.
48 Counsel for the defendant submitted that, if it was unsuccessful in its application, the costs of the application ought be costs in the cause. This submission was based in part on the fact that the plaintiff has not yet made a formal application to transfer the proceeding to the Bendigo registry of this Court.
49 I reject the submission. Mr O'Donnell issued proceedings in the more appropriate forum and should not face the risk of having to pay the costs of the defendant's unsuccessful transfer application if his claim is ultimately unsuccessful. I note that many decisions on similar applications have included orders that the unsuccessful applicant for transfer pay the costs of the application.[33] The parties sensibly proceeded on the basis that the real contest was between a trial in Bendigo and a trial in Wagga Wagga. Had the outcome of the application for transfer been different, it would not have been appropriate to take into account against the defendant on costs that (by necessity) it has not yet applied for, and in any event might not achieve, a hearing in Wagga Wagga, as distinct from Sydney. Similarly, I do not consider that the absence of a prior, formal application for transfer to Bendigo by the plaintiff should affect the order as to the costs of the defendant's application.
1 The defendant's summons dated 13 November 2012 be dismissed.
2 The defendant pay the plaintiff's costs of the application.
[1] Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) makes corresponding provision.
[5] [2004] HCA 61; (2004) 221 CLR 400, 466 [170] (Kirby J), 493 [259] (Callinan J).
[14] The experience in New South Wales has been somewhat different: see, eg, British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 (Brereton J); Kok v Sheppard [2009] NSWSC 1262 (McCallum J).
[15] [2011] VSC 291 [14].
[16] For cases decided since Irwin, see Taylor v Woolworths Limited [2012] VSC 286 (Hollingworth J); Arentz v Amaca [2013] VSC 94 (Hollingworth J); and Blackham v Greater Southern Health Area Service [2013] VSC 103 (Beach J).
[17] See, eg, transcript of proceedings, 7 February 2013, 30 per Mr Ruskin QC.
[18] Ibid, 437 [72] (Gummow J); cf Irwin v State of Queensland [2011] VSC 291 [14(f)].
[19] British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 [47] (Brereton J).
[20] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh and Heydon JJ), 435 [63] (Gummow J), 467 [172] (Kirby J), 481 [222] (Callinan J).
[21] Ibid 467 [172] (Kirby J). See also 422 - 423 [18]-[19], 427 [31] (Gleeson CJ, McHugh and Heydon JJ).
[22] Paragraph 2 of the affidavit states "The Plaintiff has not sworn an affidavit because of difficulties arising from his cognitive impairment."
[23] Defendant's submissions, [10(f)].
[24] Transcript of proceedings, 7 February 2013, 48.
[25] Transcript of proceedings, 7 February 2013, 30. The submission was made only as an answer to a tentative suggestion by me that significance might attach to the choice by the plaintiff in the writ of trial by jury. See further paragraph 36, below.
[26] Section 85(1) of the Supreme Court Act 1970 (NSW) provides that "[p]roceedings in any Division are to be tried without a jury, unless the Court orders otherwise". An order for a jury is not to be made unless the Court is satisfied that the interests of justice require a jury: s 85(2)(b). These provisions do not apply to defamation trials: s 85(6).
[27] Transcript of proceedings, 20 February 2013, 30.
[28] Transcript of proceedings, 20 February 2013, 36.
[33] See Taylor v Woolworths [2012] VSC 286; White v Motor Accidents Insurance Board [2011] VSC 290; SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2011] VSC 213; Lloyd v Riverland Regional Health Service Inc [2010] VSC 350; Kellow v Irish Murphy's Pty Ltd [2010] VSC 239. I have not found any published Victorian judgment involving an unsuccessful application for cross-vesting in which it was stated that the unsuccessful applicant would not be required to pay the respondent's costs.
O'Donnell
Nage Holdings Pty Ltd [2013] VSC 115
(2004) 221 CLR 400