Plaintiff v Defendant

1 The plaintiff, Ms Betty Hackett, has commenced this proceeding in the Bendigo civil circuit with respect to injuries she suffered in an incident which occurred on 1 January 2016 at Cleland Wildlife Park in South Australia, in the Adelaide Hills.

2 The plaintiff says she suffered injury to her right shoulder, right arm and right fibula following a fall upon what she says was an uneven footpath.

3 The defendant, the State of South Australia, denies liability for Ms Hackett's claim.

4 The plaintiff lives in Bendigo with her husband, and received medical treatment for her injuries in Bendigo. At the time of the incident, she was visiting her son who then lived in Adelaide. However, he now lives in Queensland, and she has no other family in South Australia. Her solicitors have offices in Melbourne and Bendigo.

5 On 15 April 2019, the defendant issued a summons seeking to transfer the proceeding to South Australia pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ('Act'). Section 5(2) of the Act provides as follows:

(a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court (in this subsection referred to as the first court ); and

(b) it appears to the first court that -

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;

(ii) having regard to -

(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice -

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(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.

6 I recently had cause to consider the principles applicable to applications of the current kind in Williams v TT-Line Company Pty Ltd ('Williams'), where I refused an application by a defendant to transfer a proceeding to Tasmania.[1] The relevant extract of the reasons is extracted below:

In Sedman & Associates Pty Ltd v Morgan Stanley Wealth Management Australia Pty Ltd,[2] ('Sedman') I briefly summarised the principles applicable to applications for transfer under the Act, as follows (citations omitted):

(a) the provisions of the Act have ousted the common law doctrine of forum non conveniens insofar as it applies to disputes as to which Australian Court should hear a particular proceeding;

(b) as such, the question for determination is not whether the court in which the proceeding has commenced is a clearly inappropriate forum, but rather that, whether another court is a more appropriate forum;

(c) in determining which court is the most appropriate forum, the court should have regard to the 'connecting factors' described by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd, in order to determine with which forum the proceeding has the most real and substantial connection;

(d) the appropriate mechanism for facilitating the transfer of proceedings between Australian courts is the utilisation of the provisions of the Act, and seeking a stay of the kind contemplated by Voth is an inappropriately heavy handed means of ensuring that issues are determined in the proper forum;

(e) the plaintiff's choice of forum, or at least the reasons for that choice of forum, may be relevant in a particular case, but is to be given no specific emphasis; and

(f) similarly, the residence of the defendant, while it may be the foundation for jurisdiction, is not necessarily decisive as to which is the most appropriate forum.

In the current application, the parties also relied upon the decision of Robson J in Irwin v State of Queensland, where his Honour provided a detailed summary of the principles arising out of the decision of the High Court in BHP Billiton Ltd v Shulz, including the following (citations omitted):

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

(i) The place where 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 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.

(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 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.

(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. 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.

His Honour also identified the 'relevant connecting factors' as including:

... matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.[3]

7 Other principles derived from the authorities applicable to the current application include the following statement by Robson J in Irwin v State of Queensland ('Irwin'):[4]

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. 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 ... .[5]

And further, in Taylor v Woolworths ('Taylor')[6], Hollingworth J confirmed that:

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.[7]

8 Finally, 'undue hardship', including financial hardship, is a relevant factor to take into account in determining whether it is in the interests of justice that the proceeding be transferred.[8]

9 The defendant relied upon the evidence of its solicitor, Ms Kristy Brockwell, sworn on 12 April 2019 in support of its application. She deposed, in summary, as follows:

(a) the relevant legislation for consideration in this proceeding is the Civil Liability Act 1936 (SA) and the Crown Land Management Act 2009 (SA);

(b) Ms Hackett reported the alleged incident to an employee of the defendant in South Australia;

(c) the particulars of negligence identified the issues in dispute being the construction of the footpath in question, the inspection of the footpath in question, the alleged failure to repair or rectify damage to the footpath in question, and the failure to warn Ms Hackett about or prevent her from using, the footpath in question; and

(d) the defendant intends to call evidence from employees of the State of South Australia.

10 Ms Hackett opposes the application. In an affidavit sworn on 3 May 2019, she deposed as follows:

Following the injury I returned to my son Cory's house who then resided in Adelaide as a Federal Government Custom's Officer. I then administered ice to my injuries as I believed I was only suffering from bruising. I did not seek medical assistance at that time as I hoped my condition was not serious and would resolve.

On 2 January 2016, I returned to my home in Bendigo by car which was driven by [sic] husband Stephen.

The injuries from which I suffered did not subside so on or around 5 January 2016 I attended a local general practitioner in White Hills who was not my doctor but was one of the few available during the holiday period.

All medical treatment I have received for my condition arising out of the accident has been provided in Bendigo. This was from Mr Dayananda, orthopaedic surgeon, my general practitioners at Bridge Street Medical Centre Bendigo and the St John of God Hospital Bendigo as well as the doctor in White Hills.

I was employed as a Registered Nurse at St John of God Hospital Bendigo as at the date of the accident and had been so for around 10 years. I ceased employment with St John of God in May 2018 due to my ongoing problems arising out [sic] the accident but have returned to work on a casual basis as from around December 2018 due to financial necessity.

My husband Stephen who is now retired has provided me with care and domestic assistance following the accident and continues to do so.

My son Cory and his now wife Erin who were with me on the date of the accident no longer reside in South Australia but now live in Robina Queensland. They could stay with Stephen and me in Bendigo as needed.

It would cause me significant financial hardship if the matter was heard in Adelaide particularly as I now have no family connection with South Australia.

11 The starting point in applications of the current kind is, it appears from the authorities, the location of where the tortious wrong allegedly occurred. This approach was adopted by his Honour Justice Cavanough in O'Donnell v Nage Holdings Pty Ltd[9] and the decision of Beach J in Farrelly v Mataranka Homestead Tourist Resort Pty Ltd[10] ('Farrelly') where his Honour said:

It would seem to me in the circumstances of this case that the more appropriate jurisdiction is the Supreme Court of the Northern Territory. I said that for these reasons. The real conflict in this case will relate to the issue of liability. The injuries suffered by the plaintiff would appear to have been comparatively straightforward, in the sense, as I have already indicated, that they consisted of a fracture of the midshaft of the right arm which required open reduction. It would be surprising, therefore, if there was any conflict in the medical evidence relating to the injury or the disability, if any, suffered by the plaintiff as a consequence. In that situation I consider that it would be quite appropriate for the plaintiff's medical witnesses to give their evidence to the court in the Northern Territory by means of a video link.

But the question of liability, on the other hand, could be a hotly debated issue. If that provides to be the case, as I consider it may well be, the trial judge may well be better able to determine the question if he actually has before him the witnesses giving evidence in relation to the matter, and is, of course, then in a much better situation, in my view at all events, to assess their credibility. [11]

12 Counsel for the defendant submitted that, in the current case, as in Farrelly[12], the question of liability will be hotly contested. The Court may require a view of the venue, and the witnesses who have direct knowledge of the venue are located in South Australia. Counsel for the defendant submitted while the residence of either party is not decisive, combined with the fact that the tort allegedly occurred in South Australia, the fact that the defendant's place of residence is in South Australia ought be considered by the Court as a significant factor in determining that it is in the interests of justice that the proceedings be transferred.

13 Counsel for the defendant submitted that while the plaintiff sought and obtained treatment for her injuries in Bendigo, it will be more convenient for the medical witnesses to give evidence by video link than for the lay witnesses to do so. While it was not put in these terms, it appears that the medical evidence is unlikely to be controversial or complicated.

14 It was not suggested by the defendant that this Court is otherwise not an appropriate court to hear the proceeding. Counsel for the defendant submitted that, while the plaintiff has given evidence that transferring the proceeding to South Australia will cause her financial hardship, her evidence does not descend to the degree of particularity necessary to enable the Court to draw a conclusion that transferring the proceeding would cause the plaintiff undue hardship.

15 The plaintiff opposed the application. Counsel for the plaintiff submitted that in addition to the plaintiff's lay witnesses, the plaintiff has five treating medical practitioners located in Bendigo. None of the plaintiff's witnesses live in South Australia. He submitted that the defendant's evidence is of limited value in determining this application, as the solicitor's affidavit does not identify any particular witnesses. Further, a view may be of limited utility given that three years has passed since the incident.

16 Counsel for the plaintiff submitted that transferring the proceedings would cause significant financial hardship to the plaintiff. She would need to fund travel and accommodation for herself, her husband, and her witnesses. The plaintiff's lawyers do not have an office in South Australia. The State of South Australia is better placed than the plaintiff to fund the travel and accommodation costs of witnesses and lawyers.

17 In my view, the Supreme Court of South Australia is the more appropriate forum for the conduct and hearing of this proceeding. There is no doubt that the place of the alleged wrong is South Australia, not far from the Adelaide CBD. While I accept that it is uncertain how many witnesses the defendant will wish to call, I accept that it is likely to be largely employees and contractors of the defendant, who are almost certainly resident in South Australia. I agree that the defendant's liability for breach of duty is likely to be a more contentious issue than assessing the loss caused to the plaintiff should liability be established. Further, while it is not certain that a view of the venue would be required, it may well be. The proceeding is to be tried before a jury. It would be extremely inconvenient and disruptive to transport the parties, their lawyers, and a jury from Bendigo to Adelaide in the course of a trial, particularly if the trial is listed in a busy circuit. I accept that it would be more appropriate for the medical witnesses to give evidence by way of video link rather than the lay witnesses. Accordingly, the relevant considerations weigh heavily in favour of transferring the proceeding to South Australia.

18 The only significant countervailing factor is the hardship said to be caused to the plaintiff by a transfer to South Australia. Here, the evidence is less than compelling. There is no evidence as to the plaintiff's actual income. There is no suggestion that the plaintiff would be unable to retain her current lawyers, or would be unable to secure other lawyers, even on a 'no win-no fee' basis, should the proceeding be transferred to South Australia. She would have to take some time off work even if the trial was to be conducted in Bendigo, and, it may well be that a trial in South Australia would be completed within a shorter time than a trial in Bendigo, as it would be before a judge alone, not a jury. There is no evidence that her son could not afford to travel to Adelaide to give evidence if he is in fact a material witness: after all, he is employed. On the state of the current evidence, the plaintiff's concerns fall well short of tipping a balance that otherwise substantially favours the defendant's position that the proceeding should be heard in South Australia.

19 Turning to the relevant factors identified by Robson J in Irwin[13], my observations are as follows:

(a) the place where the wrong occurred: there is no dispute that the alleged tort was committed in South Australia. The current case is to be contrasted with the circumstances in Williams[14], where there was (and remains) a considerable doubt as to where the cause of action arose;

(b) the residence of the parties: the plaintiff is resident in Victoria, and the defendant is resident in South Australia, so this is a neutral factor;

(c) the convenience of the parties and the witnesses; the two relevant considerations here are the location of potential witnesses, the potential need for a view, and the financial hardship to the plaintiff. These matters have already been considered in paragraphs 17 and 18 above. Further, in relation to the question of hardship, the hardship to the plaintiff of a transfer to South Australia is not nearly as severe as the circumstances considered in Kellow[15], where the proposed transfer was to Tasmania (requiring crossing Bass Strait by air or by sea), the plaintiff was dependent upon social security benefits, and was the sole carer of a young child;

(d) the relevant law: the proceeding is governed by South Australian law, although the defendant concedes that this is not a major impediment to the proceeding remaining in Victoria;

(e) the experience of a particular Court: this is a neutral factor; and

(f) the condition of the parties: unlike the situation in Williams[16], this is not a case where the plaintiff appears to be in jeopardy of losing her legal representation, or will be at risk of being without representation. The plaintiff does not say that her injuries preclude her from travelling from Bendigo to Adelaide. The plaintiff's situation in the current case is to be contrasted with the situation in Taylor[17], where the plaintiff suffered from injuries which made it difficult for her to travel unassisted, and there was a particular cause of stress and anxiety involved in the plaintiff travelling to South Australia.

20 Accordingly, the interests of justice require that the proceeding be transferred to South Australia.

I certify that this and the 9 preceding pages are a true copy of the reasons for Judgment of Daly AsJ of the Supreme Court of Victoria delivered on 10 May 2019.

[1] [2019] VSC 55.

[2] [2013] VSC 549.

[3] [2019] VSC 55 [7]-[9].

[4] [2011] VSC 291.

[6] [2012] VSC 286.

[8] Kellow v Irish Murphy's Pty Ltd [2010] VSC 239 ("Kellow")[9]; Williams [40]; Lloyd v Riverland Regional Health Service Inc [2010] VSC 350 [24].

[9] [2013] VSC 115.

[10] [1999] VSC 13.

[13] [2011] VSC 291.

[14] [2019] VSC 55.

[15] [2010] VSC 239.

[16] [2019] VSC 55.

[17] [2012] VSC 286.