Plaintiff v Defendant

(a) he was the subject of sexual abuse by a music teacher, Mr Peter Boys, whilst he was a student at Adamstown Primary School and Broadmeadows High School in New South Wales; and

(b) the defendant, through the Department of Education, is liable to the plaintiff as a result of direct negligence and also vicarious liability.

2 By summons filed on 6 May 2024, the defendant seeks an order that the proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) on the basis that it is in the interests of justice that this proceeding be determined by the Supreme Court of New South Wales.

3 In support of its application, the defendant relies upon three affidavits from its solicitor, Nicole Maree Laughlin, made on 25 May 2024, 20 June 2024 and 28 June 2024, together with extracts of clinical notes of Dr Lewis. The plaintiff, in response, relies on an affidavit of his solicitor, Sara Kaurin, made on 14 June 2024.

4 The exhibits to Ms Kaurin's affidavit included two reports from Dr Hughes[1] and correspondence between Dr Hughes and the solicitors for the plaintiff. However, the reports of Dr Hughes and any material referencing Dr Hughes were not relied on by the plaintiff in resisting this application.

5 Part of the material relied on by the plaintiff, and indeed forming a major plank in the plaintiff's submissions in resisting this application, was a report from Dr Lewis, Rheumatologist. Dr Lewis reported that:

[The plaintiff] does experience the typical features of ME/CCFS which is post-exercise malaise. This means that if he exceeds his personal energy threshold, fatigue and other somatic symptoms can intensify for varying periods of time. This is typically hours to days.

His current level of function and his need for support to carry out many of the daily tasks indicate that he would not have the capacity to safely travel and live in Sydney and be away from his usual supports. I consider that if he was required to travel to Sydney he could experience an exacerbation of post exercise malaise which can significantly impact not only physical function but a deterioration in his already compromised cognitive abilities.

...

[The plaintiff's] physical condition is likely to be exacerbated by the stress of a court attendance and this would be the same whether it was in Victoria or New South Wales.[2]

6 In an application to transfer a proceeding, there is no onus of proof on either party.[3] In that regard, it is not necessary for the applicant for a transfer 'to show some good reason for disturbing the plaintiff's initial choice of venue,'[4] nor is it the case that 'the plaintiff's choice of court is to be given weight':[5]

It is only if both courts are equally appropriate that the initial choice will have significance; if one is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory.[6]

In the context of the Cross-vesting Act, one 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. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. 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.[7]

8 The judicial determination as to whether to transfer or not, has at times been described as a 'nuts and bolts' management decision.[8] A wide range of considerations or 'connecting factors' may be taken into account so as to identify 'the most appropriate, or natural, forum'.[9]

9 Those connecting factors include the interests of the parties. However, as the interests of justice are wider than the interests of the parties, the interests of the parties will not necessarily be determinative.[10]

(i) In a tort case, 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 to 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 of 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 particular evidentiary and procedural rules for hearing particular types of cases.

(vi) The condition of a party, for example, in a personal injury case where the life expectancy of the plaintiff is limited requiring a speedy outcome.[11]

11 As noted by Gillard J in Ewins v BHP Billiton Ltd:

... it is right to attach importance to the procedural and evidentiary advantages offered to all parties in a particular court. It is relevant to have regard to a particular court's specialisation and experience in a particular field.[12]

12 The defendant advanced the following factors in support of its submission that the Supreme Court of New South Wales was the natural and most appropriate forum for this proceeding:

(a) All of the alleged abuse took place in New South Wales;

(b) The defendant is the State of New South Wales;

(c) The majority of witnesses likely to be called on the question of liability reside in New South Wales, particularly bearing in mind the plaintiff's allegation that the defendant knew or ought to have known that Peter Boys was not suitable to work as a teacher and that his abuse 'was common knowledge';[13]

(d) The law of New South Wales will govern matters in relation to liability and quantum. Of most note, a damages assessment pursuant to the Civil Liability Act (NSW) may be necessary;

(e) There will be no prejudice to the plaintiff if the plaintiff's Victorian based medical witnesses (on the question of quantum) give their evidence by audio visual link;

(f) The documents which are relevant to the proceeding are largely, if not entirely, based in New South Wales; and

(g) There is a real prospect that a view will be necessary.

(a) The residence of the parties is neutral;

(b) The experience of a particular court and its ability to provide an efficient and speedy trial is neutral; and

(c) The only connection with the State of Victoria is the plaintiffs' place of residence, the location of his only other lay witness, his treating doctors and his solicitors.

(a) The residence of the plaintiff and the welfare of the plaintiff favours a trial in Victoria;

(b) Whilst the relevant law in this case is New South Wales law, the legal principles relating to the law of negligence and vicarious liability are indistinguishable to Victorian law in all material respects. 'The law of negligence is part of the common law of Australia rather than of a particular State or Territory';[14]

(c) Insofar as the Civil Liability Act (NSW) is concerned, it is only relevant if the plaintiff is successful in the negligence claim and unsuccessful in the vicarious liability claim and a Victorian judge is equally able to make the damages assessment pursuant to the Civil Liability Act;

(d) It is too early to articulate with any clarity what issues will be in dispute and therefore it is difficult to make any findings in respect of the relative inconvenience to the parties;

(e) At best, it can be concluded that the location of potential witnesses is 'split'[15] between two jurisdictions, with the plaintiff and his lay and medical witnesses being based in Victoria, and the defendant overstating the likely number of witnesses to be called;

(f) Less weight should be placed on the location of witnesses, in circumstances where it is now a common practice for witnesses to give evidence by audio visual link, but it is appropriate to have regard to the wishes of the plaintiff to give his evidence in person and attend court on each day of the hearing of this matter;

(g) The solicitors acting for the plaintiff have been engaged to act on a contingency basis and would be at risk of incurring additional loss should the plaintiff be unsuccessful in his proceeding;

(h) In comparison, where the defendant is the State of New South Wales, the findings made by Robson J in Irwin are analogous, namely:

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.[16]

(i) There is a potential delay in New South Wales, given the Victorian Supreme Court sets a trial date after the first directions hearing and 'has a target of having all cases in the Institutional Liability List reach trial within 14-16 months of an appearance first being filed'[17] whereas in NSW trial dates are not allocated until after the parties have complied with timetabling orders and mediation.

15 In determining this application, I have carefully considered the competing considerations of the parties.

16 The factor that most supports the proceeding remaining in Victoria is the convenience and health of the plaintiff.

17 Even without evidence, it can be assumed that the cost of conducting this trial in New South Wales will be more expensive and inconvenient to the plaintiff than what would be the case if the proceeding were held in Victoria. I agree that the expense and inconvenience of a defendant with the resources of a State, is less significant than that of a plaintiff.

18 Added to that is the medical opinion that the plaintiff 'could experience an exacerbation of post exercise malaise' by reason of needing to travel to and live in New South Wales for the duration of the trial.[18]

19 However, the evidence does not go so far as to establish that the plaintiff could not litigate his claim in New South Wales. The highest the evidence gets is the opinion of Dr Lewis and that opinion proceeds on an assumption that the plaintiff would be away from his usual supports. In that regard, there was no evidence that the plaintiff would not be able to be supported whilst in New South Wales, whether by family or otherwise. Insofar as the plaintiff may need support from Dr Lewis, this could be accommodated by telehealth consultations. Indeed, the evidence established that the plaintiff has previously attended consultations with Dr Lewis by telehealth conference on 6 April 2022, 9 May 2022, 31 May 2023 and 5 July 2023.

20 It is of some relevance that the plaintiff is not someone who has never travelled or lived for extended periods outside Victoria. Rather, Ms Kaurin states in her affidavit that, prior to living in Victoria, the plaintiff lived in England on a working holiday visa for about 18 months.[19] It is correct that this was prior to 1999, but it is a factor that must go in the mix, albeit a minor factor.

21 Insofar as the plaintiff's convenience submission extends to inconvenience and potential additional expense to his solicitors, there is no suggestion that his solicitors will not continue to act for him if the trial were held in New South Wales.

22 On the other hand, most factors point to New South Wales as being the most appropriate or natural forum, the most important of which is that each alleged incident of sexual abuse occurred at a school in New South Wales. In addition, it is relevant that:

(a) the defendant is the State of New South Wales, through the Department of Education;

(b) most of the witnesses on liability reside in New South Wales, many of whom are now in their seventies;

(c) the substantive law governing the proceeding is the law of New South Wales, including as to the assessment of damages.

23 In respect of the law governing the proceeding, it is correct that it is the common law of Australia, but it is of some relevance that the NSW Civil Liability Act may govern the assessment of damages. Of course, the applicability of the Civil Liability Act is not yet certain, but it must be taken into account as part of the law governing the proceeding. I accept that a Victorian judge could well apply the Civil liability Act, but insofar as it is necessary for me to have regard to the specialisation and experience of a particular court, it is New South Wales that has the specialisation and experience in respect of a damages assessment pursuant to the Civil Liability Act.

24 In respect of witnesses, it is correct that witnesses can give their evidence via video link. It is also correct that the plaintiff, one other lay witness and the medical witnesses relevant to an assessment of damages are based in Victoria. However, in a claim such as this it is preferable that, if possible, the witnesses on liability give their evidence in person. It is not so important for the medical experts. The number of witnesses potentially to be called on liability is very much overstated by the defendant. However, there is no doubt that the majority of witnesses on liability are likely to reside in New South Wales.

25 For completeness, I have given little weight to the possibility of a view or inspection being conducted in New South Wales. It has not been demonstrated, on the facts before me in this application, that a view is likely to 'assist the court in resolving issues of fact or understanding the evidence',[20] nor is there anything before the Court to determine 'the extent to which the place or thing to be inspected has materially altered'.[21]

26 I have given little weight to the location of documents, given the ease with which documents can be transmitted to another jurisdiction in electronic form in this day and age.

27 Both parties made submissions as to the jurisdiction most likely to provide a speedier pathway to trial. It was not possible for me to make any conclusions in that regard, other than to note that, at this early stage of the proceeding, a transfer to New South Wales was unlikely to occasion any delay.

28 There are connecting factors going both ways, but I have ultimately determined that the most appropriate and natural forum for this proceeding is New South Wales.

29 Accordingly I will make an order transferring the proceeding to the Supreme Court of New South Wales.

[1] The plaintiff's treating psychiatrist.

[2] Report dated 24 May 2024, exhibited to Affidavit of Sara Kaurin filed 17 June 2024.

[3] Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36, 60 [70] (Brereton J).

[7] BHP Billiton Ltd v Schultz ('BHP v Schultz') (2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh and Heydon JJ).

[8] BHP v Schultz, 421 [13], quoting Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714 (Street CJ).

[10] BHP v Schultz, 423 [19]; Irwin v State of Queensland [2011] VSC 291, [14](d) (Robson J).

[11] Ewins v BHP Billiton Ltd [2005] VSC 4, [29].

[12] Ewins v BHP Billiton Ltd [2005] VSC 4, [31].

[13] Stanford Barton (a pseudonym), 'Statement of Claim', filed in Stanford Barton (a pseudonym) v The State of New South Wales, S ECI 2024 00819, 27 February 2024, [8].

[14] Irwin v State of Queensland [2011] VSC 291, [17] (Robson J).

[15] Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223, [43] (Einstein J).

[16] Irwin v State of Queensland [2011] VSC 291, [23] (Robson J).

[17] Supreme Court of Victoria, 'Case Management and Listing Updates; Institutional Liability List', May 2024.

[18] Report dated 24 May 2024, exhibited to Affidavit of Sara Kaurin filed 17 June 2024.

[19] Affidavit of Sara Kaurin filed 17 June 2024 at 17.

[20] Evidence Act 1995 (NSW), s 53(3)(b).

[21] Ibid, s 53(3)(e).