Plaintiff v Defendants

Rennick & Gaynor Solicitors as Melbourne agents for RedeMont

1 On 7 October 2024, the plaintiff commenced proceedings in this Court alleging that several defendants, including the State of Queensland ('first defendant'), are liable for incidents of historical physical and sexual abuse suffered by the plaintiff during periods in which she was a ward of the State. The incidents are alleged to have occurred in Queensland.

2 On 13 November 2024, the first defendant filed and served a notice of conditional appearance under cover of a solicitor's letter which states, relevantly, as follows -

1. Our client has filed a Notice of Conditional Appearance as it considers that your client has commenced the Proceeding in the wrong jurisdiction, and it considers the appropriate jurisdiction for this Proceeding is the Supreme Court of Queensland. Further, our client considers it to be an abuse of process that your client has commenced the Proceeding in circumstances where your client has an existing concurrent claim against our client under the Personal Injuries Proceedings Act 2002 (Qld) ... .
2. Accordingly, we put your client on notice that our client intends to file an application:

(a) pursuant [to] section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ... on the basis that, among other things, it is in the interests of justice for this Proceeding to be heard in the Supreme Court of Queensland;

(b) alternatively, to seek a temporary stay of the Proceeding pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) pending the outcome of your client's current claim under the PIPA.[1]

3 As will be apparent, the plaintiff had earlier given a notice of claim under s 9 of the Personal Injuries Proceedings Act 2002 (Qld) ('PIPA').[2] The plaintiff took no steps in that pre-litigation process beyond sending the notice of claim.

4 On 22 November 2024, the first defendant filed its defence in the present proceeding. The defence does not refer to any point of a jurisdictional kind.

5 On 26 November 2024, the first defendant filed a summons directed to the grounds earlier foreshadowed.[3] In argument on the present application, the first defendant acknowledged, correctly, that neither of those grounds was jurisdictional in nature.[4]

6 On 20 December 2024, a timetable of orders was made in respect of the filing of affidavits and written submissions. That timetable was later revised.

7 The second and third defendants filed appearances and defences. Other steps were taken in connection with the substantive proceeding including, it seems, discovery and interrogation.[5]

8 There seems to have been an issue concerning the proper name and identity of the second and fourth defendants. On 22 January 2025, the plaintiff filed an amended writ and statement of claim.

9 On 29 January 2025, the fourth defendant also filed a notice of conditional appearance. However, the fourth defendant did not file and serve any summons in support of its notice and, on 21 May 2025, the fourth defendant filed its defence.

(a) the first defendant filed an affidavit of Timothy Charles Jones, solicitor, and an affidavit of Matthew Glen Edwards, solicitor;[6]

(b) the second defendant filed an affidavit of Sonya Parsons, solicitor;[7]

(c) the fourth defendant filed three affidavits of Stephen Uniacke, consultant solicitor;[8] and

(d) the plaintiff filed, in particular, two affidavits of Cameron Doig, solicitor, and a subsequent affidavit of Sara Kaurin, solicitor.[9]

11 The fourth defendant objected to the admissibility of certain paragraphs of the affidavits of Mr Doig.[10]

12 The first defendant filed comprehensive written submissions dated 25 February 2025.[11] In that document -

(a) argument was directed to various factors in support of an overall contention that the Supreme Court of Queensland is the more appropriate forum;

(b) that is, the first defendant directed submissions to the relief sought in paragraph 1 of its summons - namely, an order pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ('Cross-vesting Act') transferring the proceeding to the Supreme Court of Queensland;[12]

(c) paragraph 2 of the summons - by which a temporary stay had been sought of the present proceeding pending the outcome of the plaintiff's 'proceeding' under PIPA - was implicitly abandoned;[13]

(d) no part of the argument was identified as jurisdictional in nature; and

(e) unsurprisingly, no mention was made of the first defendant having filed a notice of conditional appearance.

(a) the fourth defendant filed supporting submissions dated 4 March 2025;[14] and

(b) the plaintiff filed contrary submissions dated 13 March 2025, as well as short supplementary submissions dated 21 March 2025.[15]

14 All of the above submissions were directed to the question of whether the Supreme Court of Queensland was the more appropriate forum.

15 In reply submissions dated 16 April 2025,[16] the first defendant submitted, relevantly, as follows -

... nothing in the plaintiff's 13 March 2025 submissions ... or the accompanying 21 February 2025 affidavit displace the fact that the interests of justice support this Court transferring this proceeding to the Supreme Court of Queensland. The first defendant also submits, further and alternatively, that, in circumstances where the first defendant has not submitted to the Court's jurisdiction, the Court should decline to exercise jurisdiction or otherwise determine that the Supreme Court of Queensland is the more appropriate forum by reason of s 58 of the Judiciary Act 1903 (Cth) ... .[17]

16 As will be apparent, the first part of that passage concerns the issue of transfer pursuant to s 5(2) of the Cross-vesting Act. However, the further and alternative submission was new.

17 Later in the reply submission, the first defendant developed the new point with particular reference to -

(a) section 75(iv) of the Australian Constitution ('Constitution');

(b) sections 39(2), 56 and 58 of the Judiciary Act 1903 (Cth) ('Judiciary Act');

(c) parts of the reasoning of members of the High Court in Breavington v Godleman ('Breavington');[18] and

(d) its notice of conditional appearance.[19]

18 In that general connection, the first defendant submitted that the Court should -

... determine ... that it would be appropriate for it to decline to exercise its jurisdiction to hear and determine the proceeding ... .[20]

19 Correspondence ensued between the solicitors.[21] At one point, the plaintiff's solicitors indicated that submissions in response to the new point would be filed and served prior to the hearing.[22] At several subsequent points, the plaintiff's solicitors indicated that s 78B of the Judiciary Act was engaged and that an adjournment would be required.[23] Ultimately, the plaintiff's solicitors indicated an intention to object to the raising of the first defendant's new point at such a late stage.[24]

20 Whatever else might be said about the various correspondence, the plaintiff did not then prepare and serve any s 78B notices or any written submissions directed to the first defendant's new point.

21 The matter came on for hearing on 30 May 2025. The hearing was adjourned in order that an amended summons might be filed by the first defendant directed to the new point, s 78B notices served and any written submissions prepared.

22 On 2 June 2025, the first defendant filed an amended summons in the following relevant terms -

1. An order pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) that the proceeding be transferred from the Supreme Court of Victoria to the Supreme Court of Queensland.
2. Alternatively to order 1, an order pursuant to section 58 of the Judiciary Act 1903 (Cth) that the Court decline to exercise jurisdiction and that the proceeding be heard and determined by the Supreme Court of Queensland.
3. In the alternative to order 1, an order pursuant to rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), that this proceeding be temporarily stayed pending the outcome of the Plaintiff's proceeding issued under the Personal Injuries Proceedings Act 2002 (Qld).

23 Shortly thereafter, the plaintiff filed and served a s 78B notice.[25] No Attorney-General sought to intervene or provided submissions.

24 Relevant written submissions were prepared and filed by the plaintiff and first defendant respectively.[26]

25 Various parties filed and served further affidavit material, including in respect of at least two other proceedings in the Supreme Court of Victoria in which it seems that the first defendant has taken the new point.[27] However, much of that material was directed to the costs of the hearing on 30 May 2025.[28]

26 The application came back on for argument on 28 July 2025. In that regard -

(a) paragraph 1 of the amended summons was in issue between all four defendants, on the one hand, and the plaintiff, on the other;

(b) paragraph 2 of the amended summons was in issue between only the first defendant and the plaintiff.

27 During argument, an issue arose concerning whether the first defendant had waived its objection made by conditional appearance or otherwise submitted to the jurisdiction of the Court.[29] After the hearing, the first defendant and plaintiff each filed further written submissions directed to that issue.[30]

28 In respect of paragraph 1 of the amended summons, the first defendant relies on s 5(2)(b)(iii) of the Cross-vesting Act.

29 That section provides, relevantly, 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 -

...

(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.

30 As explained by Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz ('Schultz'), a proceeding must be transferred if it is in the interests of justice, in that, the 'other' Supreme Court is the more appropriate forum.[31]

31 Albeit that their Honours strictly dissented on the question of remitter,[32] their reasoning in respect of s 5(2)(b)(iii) was broadly similar to that of the majority[33] and has since been relied upon regularly in argument in cross-vesting applications. In the present instance, all relevant parties referred directly or indirectly to the reasoning of Gleeson CJ, McHugh and Heydon JJ in Schultz.[34]

32 In that context, Gleeson CJ, McHugh and Heydon JJ explained that the interests of justice are not the same as the interests of one party. However, justice is not 'divorced from practical reality'.[35] In that connection, their Honours stated -

In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is importance to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even whether they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.[36]

33 A sequence of relevant principles were later identified and summarised by Robson J in Irwin v State of Queensland ('Irwin').[37] Among other things, his Honour stated that -

(a) the court should adopt a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute;[38]

(b) the convenience of the parties and witnesses may be relevant in a tortious action, although the factor may not carry substantial weight 'in this day and age' because of the ability to move witnesses around at small expense and little inconvenience, and also because evidence may be given via video link;[39]

(c) in a personal injury action, the condition of a party may be a relevant factor;[40]

(d) 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;[41]

(e) each case depends on its own particular facts;[42] and

(f) the list of connecting factors is impossible to state exhaustively and, equally, the weight to be given to each factor must vary from case to case.[43]

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

35 Since Irwin was decided in 2011, the use of audio-visual technology for remote witnesses has, of course, become considerably more commonplace, even in jury trials.

36 I should add that many cases have identified hardship, including financial hardship, as a potentially relevant consideration.[44]

37 For completeness, I note that part of the present argument was directed to the similarity or contrast, as the case may be, with the circumstances apparent in several other recently decided cross-vesting applications.[45] The defendants particularly emphasised Stanford Barton (a pseudonym) v The State of New South Wales ('Barton').[46] However, as I have noted, each case must be decided on its own facts.[47]

38 Argument in respect of paragraph 2 of the amended summons referred, particularly, to the following provisions of the Constitution -

75. Original jurisdiction of High Court

In all matters:

...

(iv) between States, or between residents of different States, or between a State and a resident of another State;

...

the High Court shall have original jurisdiction.

...

77. Power to define jurisdiction

With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

...

(iii) investing any court of a State with federal jurisdiction.

78. Proceedings against Commonwealth or State

The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

39 It was common ground that the present proceeding is in federal jurisdiction and that the Court is invested with that jurisdiction via s 39(2) of the Judiciary Act.

40 Section 39(2) of the Judiciary Act provides, relevantly -

The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, ...

41 In argument, much reference was made to ss 56 and 58 of the Judiciary Act. Those sections appear in Pt IX of the Judiciary Act entitled 'Suits by and against the Commonwealth and the States' and provide, relevantly -

(1) A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth:

...

(b) if the claim arose in a State or Territory - in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or

...

58 Suits against a State in matters of federal jurisdiction

Any person making any claim against a State, whether in contract or in tort, in respect of a matter in which the High Court has original jurisdiction or can have original jurisdiction conferred on it, may in respect of the claim bring a suit against the State in the Supreme Court of the State, or (if the High Court has original jurisdiction in the matter) in the High Court.

42 As I have indicated, the first defendant relies upon various passages in Breavington and submits that those elements of reasoning must be taken to determine the meaning and effect of s 58.[48] It will later be necessary to examine the relevant parts of Breavington in some detail.

43 For her part, the plaintiff, in particular, emphasised aspects of later decisions of the High Court, namely Commonwealth v Mewett ('Mewett')[49] and British American Tobacco Australia Ltd v Western Australia ('BATA').[50] The plaintiff described those decisions as comprising 'the present state of the law', notwithstanding the obiter in Breavington.[51]

44 Both relevant parties referred to an article by Mr Graeme Hill published in the Melbourne University Law Review in 2006 entitled 'Private law actions against the Government (Part 1) - Removing the Government's immunity from suit in Federal cases' ('Hill article').[52]

45 As with Breavington, it will later be necessary to consider parts of Mewett, BATA and the Hill article in more detail.

46 In oral argument, senior counsel for the plaintiff directed attention to provisions of the Crown Proceedings Act 1980 (Qld) ('Crown Proceedings Act'), particularly -

(1) Subject to this Act and any other Act or law, a claim by or against the Crown may be made and enforced by a proceeding by or against the Crown under the title the 'State of Queensland'.

(2) ...

(1) A proceeding by or against the Crown -

(a) shall be instituted in the court that would have jurisdiction if the proceeding were between subject and subject;

(b) shall be instituted and proceeded with in accordance with the procedure of the court specifically applicable thereto or, if there is no such procedure, as nearly as possible in accordance with the procedure applicable to a proceeding between subject and subject.

47 As I have indicated, the question whether the first defendant waived the new point or otherwise submitted to the jurisdiction of the Court was, to some extent, addressed in oral argument. However, the first defendant and plaintiff developed their respective arguments in written submissions filed after the hearing.

48 Order 8 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') is directed to appearance by a defendant in a proceeding commenced by writ or originating motion. Relevantly, the Rules provide as follows -

8.02 Appearance before taking step

Except as provided by Rule 8.08 or 8.09 or by leave of the Court, a defendant shall not take any step in a proceeding unless the defendant has first filed an appearance.

...

8.08 Conditional appearance

(1) A defendant may file a conditional appearance.

(2) A notice of conditional appearance shall be in Form 8B.

(3) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless, on application by the defendant, the Court otherwise orders.

(4) Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed.

49 In substance, the first defendant contends that -

(a) its objection pursuant to s 58 of the Judiciary Act is 'not ... capable of waiver in the ordinary sense';[53]

(b) the present circumstances may be contrasted with those in Breavington;[54]

(c) in filing a conditional appearance, the first defendant took objection 'in a broad sense' that was sufficient to preserve 'at all times' the conditional nature of its appearance and so it should not be taken to have submitted to the Court's jurisdiction;[55] and

(d) late amendment of the first defendant's summons with the consent of the plaintiff has 'cured' any non-compliance with the Rules.[56]

50 In response, among other things, the plaintiff submits that -

... the conditional appearance filed by the first defendant had effect for all purposes as an unconditional appearance, except in so far as it sought the transfer of this proceeding to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Cross-Vesting Act. Other objections to jurisdiction, not referred to in the summons within 14 days of the filing of the conditional appearance, were waived. The first defendant's application pursuant to s 58 of the Judiciary Act should, therefore, be dismissed.[57]

51 I have earlier referred to the affidavits filed and served by the parties as well as the written objections of the fourth defendant to certain paragraphs in the two relevant affidavits of the plaintiff's solicitor, Mr Doig.

52 The various affidavits and associated exhibits are of considerable volume. That said, for the most part, the principal affidavit material[58] is directed to -

(a) elements of the chronology of relevant events;

(b) the plaintiff's pleaded allegations; and

(c) the various 'connecting factors' regarding transfer.

53 In respect of the latter, in particular, the relevant parts of the affidavit of Mr Jones, solicitor for the first defendant, are directed to factors such as -

(a) the place of the claimed torts;

(b) the location of the parties and their solicitors;

(c) the location of alleged perpetrators;

(d) the location of potential witnesses;

(e) the availability of trial dates in the Supreme Court of Queensland;

(f) the plaintiff's notice of claim under PIPA; and

(g) the position taken by the second and third defendants.[59]

54 The subsequent affidavits of Ms Parsons, solicitor for the second defendant,[60] and Mr Uniacke, consultant solicitor for the fourth defendant,[61] are directed to such of the above factors as are in each case appropriate.

55 In particular, Mr Uniacke, who practices in Queensland, addresses -

(a) the applicable law;

(b) relevant practices in the Supreme Court of Queensland; and

(c) relevant practices in respect of claims made under PIPA.[62]

56 By contrast, the first relevant affidavit of the plaintiff's solicitor, Mr Doig, is directed to factors including -

(a) the mode of trial;

(b) the potential for delay;

(c) the location of the parties' legal representatives;

(d) the plaintiff's location and 'related matters';

(e) the location of the second defendant;

(f) the plaintiff's educational and employment history in Victoria;

(g) the location of the plaintiff's witnesses;

(h) the location of 'individuals' identified by the first defendant; and

(i) the location of 'individuals' identified by the second defendant.[63]

57 The 'related matters' include certain aspects of the plaintiff's instructions, to which the fourth defendant has taken written objection, as well as the content of medical reports concerning the plaintiff's psychiatric condition and circumstances.

58 The various medical reports are exhibited, particularly -

(a) an independent medico-legal report of Dr Zeeva Cohen, consultant psychiatrist, dated 9 May 2023;[64]

(b) a report of Ms Banu Moloney, treating psychologist, dated 3 August 2023;[65]

(c) a supplementary report of Ms Moloney dated 4 February 2025;[66]

(d) a report of Dr John Boby Kizhakoot Francis, treating general practitioner, dated 14 February 2025;[67] and

(e) a further report of Dr Cohen dated 20 February 2025.[68]

59 It is presently appropriate to refer to some of the detail in those reports.

60 Dr Cohen and Ms Moloney initially reported prior to the notice given by the plaintiff under PIPA.

61 In that regard, in April 2023, Dr Cohen conducted a telehealth consultation and recorded a history that includes the plaintiff's claims of abuse during her periods of care in Queensland.

62 In particular, Dr Cohen records that the plaintiff left school in year 10, completed a hairdressing apprenticeship and worked as a hairdresser for 25 years without difficulty before commencing law school at the age of 40. Dr Cohen notes that the plaintiff is 'currently in a different career as a lawyer'.[69]

63 In argument, the fourth defendant emphasised aspects of the history taken by Dr Cohen, including that -

... she spent most of her time with her dog, taking her dog for walks and did not really associate with anyone in [a town in central Victoria]. She said she would read a lot and did have two friends in Melbourne who were good supports to her.[70]

64 Dr Cohen summarised her assessment as follows -

[The plaintiff] is a 56 year old Indigenous woman who presents with symptoms consistent with chronic complex posttraumatic stress disorder and major depressive disorder.

This is in the context of severe longstanding sexual abuse, physical abuse, emotional abuse and neglect during her placements at an orphanage ... and subsequent foster placements ... . She presents with intrusive re-experiencing phenomena, features of avoidance, ongoing hypervigilance, mistrust, impacts to self esteem, loss of confidence and acting out behaviours earlier in life. She has had one long term unsuccessful relationship which appears to have been characterised by coercive control and presents as currently socially isolated with some difficulties in the workforce. She has been in receipt of treatment since approximately 2019 with appropriate psychopharmacological agents and attending a psychologist for the past two years.[71]

65 Reporting later the same year, Ms Moloney identifies herself as a psychologist, family therapist and qualified professional supervisor with experience with First Nations families and communities, and says that she has seen the plaintiff monthly since March 2020.[72]

66 Ms Moloney reports that the plaintiff's work with disadvantaged First Nations clients triggered her own 'history of removal from family and the subsequent ongoing physical, sexual, and racial abuse'.[73]

67 In respect of that trauma, Ms Moloney refers to the plaintiff's 'loss of sense of security, identity and self-esteem', her need to work to prevent feelings of 'confusion, fear, depression, anxiety, and unhappiness' as well as a need to work against a feeling of being 'trapped'.[74]

68 As to the ongoing consequences of trauma, Ms Moloney states, in particular -

[The plaintiff] was placed into Institutional care and was never given the opportunity to reconnect with either her Mother or Father who are both deceased. The psychological impact of this separation from her parents and the denial of any opportunity to form attachment cannot be underestimated. This has contributed to enduring trauma and a sense of disconnection and a clear sense of self.

Disconnection with siblings due to thoughtless and chaotic care arrangements for siblings has resulted in some of her siblings resorting to self-medication, chronic illnesses, and dramatically shortened life expectancy. This ongoing loss of siblings compounded by the loss of opportunity to grow up with her older siblings has had the impact of profound grief and significantly constant retriggering of her own and of her siblings' abuse in State sanctioned care.

Growing up in [S]tate sanctioned care and the deliberate policy to deny any connection to culture, identity and language has impacted on [the plaintiff's] capacity to belong in both a First Nations community and White society. This has profoundly impacted on her ability to form trusting relationships with others. Any attempt by her to fit into the White society has consistently been met with overt and covert racism which has further contributed to her sense of dislocation whilst being in her own country.

Because [the plaintiff] has felt that she has lived in two worlds, this has impacted on her sense of identity and her search for her Aboriginality and Culture.[75]

69 Ms Moloney states that the plaintiff lives with depression and anxiety that is 'a constant battle in her personal and professional life'. Among other things, Ms Moloney states -

I cannot emphasise enough the extent of support a severely traumatised person needs in an ongoing way to be able navigate life, work, and relationships. The effort [the plaintiff] has to make on a daily basis in order to continue to maintain a sense of emotional stability and to negotiate and enjoy relationships with others is considerable.[76]

70 In the context of the present application, in February 2025, Ms Moloney was evidently asked to answer written questions in respect of the prospect that the plaintiff's proceeding might be transferred to Queensland.

...

All of [the plaintiff's] abuse occurred in Queensland. I have little doubt that travelling back to Queensland would trigger painful memories. [The plaintiff's] current ability to function is closely linked to being in her own environment with the comfort of having ready access to professional and local community supports.

...

[The plaintiff's] family members, many if not all of whom have also suffered abuse and traumatic institutional neglect, still reside in Queensland. They would inevitably hear that she had been required to travel to Brisbane and would almost certainly make contact. To date, [the plaintiff] has protected herself and her family from much of the distressing details of her abuse by creating her own life in [a town in central Victoria]. Having to make contact at these times would further distress her and distress her vulnerable family members.

For some time now, [the plaintiff] has had a dog who has been a therapy companion, critical to helping her manage her anxiety. Being separated from her companion and therapy pet would further compromise [the plaintiff's] psychological health and well-being.[77]

72 In respect of psychosocial supports, Ms Moloney expands as follows -

[The plaintiff's] supports - psychological, emotional, workplace, collegial, cultural and her pet dog are all in Victoria. It is not possible to replicate even some of these were she to be disadvantaged by having to travel to Queensland, the State where the abuse took place.

In my view, the additional stress of not being in her safe and familiar environment is likely to exacerbate her anxiety and set back her healing process.

It is possible that not having these ongoing supports could lead to a break down in [the plaintiff's] current fragile mental health.

[The plaintiff] left Queensland to put distance between herself and all the reminders of her trauma. While living and working in Victoria, she has developed and built cultural safety and supports for herself. She does not have this in Queensland. Cultural support for her in Queensland could not be simply 'plugged in'. This sort of support requires a deep and sensitive understanding of what is involved in creating cultural connections, safety and belonging.[78]

73 In that general connection, Ms Moloney quotes the plaintiff directly as follows -

What I can tell you is that in the past when I was unable to access my supports my mental health declined rapidly and I found myself so full of anxiety that I was barely able to leave the house.[79]

74 As to the prospect that the plaintiff might give evidence via audio-visual link to a court hearing the trial of her action in Queensland, Ms Moloney states -

In my experience, there is a therapeutic benefit for victims to be able to be in Court and relate personally to the Judge. Such an experience with somebody seen as just and fair can contribute to healing for many victims. A remote audio-visual process would significantly diminish [the plaintiff's] opportunity to experience this important and significant aspect of her attempt to not only be heard but also have a healing experience.[80]

75 In the same context, the plaintiff's treating general practitioner, Dr Francis, was evidently asked for his opinion. Among other things, his report records -

(a) his diagnosis of chronic anxiety and depression on a background of 'multiple childhood abuse';

(b) his prescription of anti-anxiety and anti-depressant medication;

(c) that regular counselling has been undertaken by the plaintiff with the psychologist, Ms Moloney;

(d) his assessment that the plaintiff is very anxious and depressed, her condition is chronic and that her mental health can be worsened by any small triggers; and

(e) his opinion that 'it will be difficult and detrimental for [the plaintiff's] mental health to travel and stay [in] Brisbane for the trial of her claim'.[81]

76 In contrast with the opinion of Ms Moloney, Dr Francis states that it would be good for the plaintiff to give evidence via audio-visual link.[82]

77 For completeness, Dr Cohen examined the plaintiff in February 2025, again via telehealth.

78 Dr Cohen recorded a history that, among other things -

(a) the plaintiff continues to 'see a psychologist in Richmond, Melbourne approximately fortnightly';[83]

(b) the plaintiff had kept the traumatic events 'in' for years and said that her family would 'lean on her financially and emotionally';[84]

(c) the plaintiff attends her general practitioner and has been prescribed escitalopram 30 mg and mirtazapine 30mg as well as antihypertensive medication;[85]

(d) the plaintiff's move to Victoria had been 'good' as it has given her distance from her family;[86]

(e) the plaintiff has close friends in Melbourne and central Victoria that she relies on for emotional support;[87] and

(f) the plaintiff has found 'the claims process extremely anxiety provoking'.[88]

79 In that general connection, Dr Cohen confirmed her earlier diagnosis and otherwise summarises her assessment as follows -

She has endeavoured to progress her life by moving from Queensland to Victoria where she has set up home accessing appropriate supports and treatment as well as engaging in a new work place. Her relationships with family members in Queensland remain conflicted and reportedly exploitative placing her at risk of decompensation.[89]

80 As to specific questions directed to travel by the plaintiff to Brisbane for a trial or, alternatively, the giving of evidence remotely, Dr Cohen states -

Based on today's reassessment, it is my opinion that it would be detrimental for [the plaintiff] to travel to and stay in Brisbane for the trial of her claim. She does not have sufficient supports in Brisbane; is at risk of exploitation from family members, does not have access to services there and no longer has a life to support her there. She remains fragile with active symptomatology and in need of ongoing treatment from her current treating practitioners in Victoria as well as support.

...

It is my opinion that should [the plaintiff] need to give evidence remotely via audiovisual link to a court in Queensland, it is likely to exacerbate her condition owing to the triggers associated with Queensland where the index abuse has occurred. Any legal delays are likely to exacerbate her condition as her claim has been longstanding, reactivating of trauma symptoms and stressful for her. She should not at any time be socially or emotionally isolated as she tends to become overwhelmed and at risk of decompensation, in my opinion.[90]

81 Dr Cohen thereafter refers to the plaintiff's reliance on her treating practitioners, four friends and dog in Victoria, and otherwise repeats her opinion that in the absence of such supports the plaintiff's symptoms could be exacerbated and result in decompensation.[91]

82 None of the considerable volume of material produced by the defendants included any relevant medical opinion evidence.[92]

(a) a subsequent affidavit of Mr Doig, solicitor for the plaintiff, addresses the content of certain material produced in answer to a subpoena;[93] and

(b) an affidavit of Sara Kaurin, solicitor for the plaintiff, addresses a relatively minor issue relating to another case.[94]

84 As I have noted, the fourth defendant took written objection to certain paragraphs in the affidavits of Mr Doig,[95] specifically -

(a) paragraphs [10] to [12] of his first affidavit[96] - concerning the likely progress of the plaintiff's PIPA claim were the proceeding to be transferred to Queensland - which were said to be inadmissible opinion evidence and hearsay;

(b) paragraphs [13] to [14] of his first affidavit[97] - concerning 'indicative timelines' derived from certain institutional abuse claims in the Supreme Court of Queensland - which were said to be not relevant;

(c) paragraphs [31] to [34] of his first affidavit[98] - recording the substance of certain instructions given by the plaintiff, including in respect of her trauma and fears if the proceeding were to be transferred to Queensland - which were said to be 'opinion evidence with no proper basis' and hearsay; and

(d) paragraphs [7] to [18] of his subsequent affidavit[99] - concerning the content of certain subpoenaed records - which were also said to be 'opinion evidence with no proper basis' and not relevant.

85 The above arguments were not developed in oral argument. Senior counsel for the fourth defendant indicated that the objections should be determined on the papers.[100]

86 In an interlocutory application of the present kind, the fourth defendant's objections to the effect that paragraphs of the affidavits of Mr Doig should be disregarded as hearsay cannot be accepted. Among other things -

(a) in an interlocutory application, an affidavit may contain a statement of fact based on information and belief if the grounds are set out;[101]

(b) accordingly, affidavit evidence in such applications commonly states instructions obtained;[102] and

(c) if the present objection were to be accepted and applied consistently, many parts of the affidavits of the defendants should also be disregarded, including parts of the affidavits of the solicitor for the fourth defendant, Mr Uniacke.

87 The substance of the fourth defendant's contentions in respect of 'opinion evidence' are also not able to be accepted.

88 In that regard, the contention of the fourth defendant that might outwardly be thought to carry the most substance concerns paragraphs [11] and [12] of Mr Doig's first affidavit, especially the extent to which those paragraphs concern the product of his enquiries with 'a number of Queensland solicitors and barristers'.

89 However, as I have noted, hearsay evidence may presently be received and the basis for the evidence is there identified, albeit imperfectly.

90 Further, the evidence plainly amounts to an assessment made by Mr Doig based in the underlying provisions and practice together with the substance of the experience of the 'Queensland solicitors and barristers'. If necessary, the former is largely assessable by reference to the underlying documents and the latter is really a hearsay expression of experience, rather than opinion. In that sense, the evidence is little different, at least in its essential form, to Mr Uniacke's own evidence concerning his experiences with the system in Queensland.[103]

91 In the end, the issue seems to me to be one of weight, at best, rather than admissibility.

92 Beyond that, there seems to me to be no substance at all in the fourth defendant's other contentions in respect of so-called 'opinion evidence'. Nor is there any substance in the objections founded in the claimed irrelevance of timelines derived from identified cases or the contents of subpoenaed material.

93 In that overall context, as I have earlier noted, the parties exchanged detailed written submissions. In substance -

(a) the defendants submitted that various connecting factors demonstrate that the proceeding has a 'real and substantial connection' to Queensland and, accordingly, that the Supreme Court of Queensland is the more appropriate forum;[104] and

(b) by contrast, the plaintiff submitted that a consideration of the various factors indicates that it is not appropriate for the proceeding to be transferred.[105]

94 At the hearing, the legal representatives distilled the contentions advanced.

95 In that connection, senior counsel for the first defendant[106] helpfully identified the affidavit material by reference to which, he submitted, there were six reasons supporting transfer. He emphasised that -

(a) the alleged conduct and therefore negligence was in Queensland;

(b) the applicable law is therefore that of the State of Queensland;

(c) the plaintiff commenced a claim under PIPA;

(d) certain parties and their solicitors are located in Queensland;

(e) aspects of the convenience of the parties favour Queensland; and

(f) the Supreme Court of Queensland has 'a particular flexibility and availability'.[107]

96 It was common ground that the relevant conduct was alleged to have occurred in Queensland and therefore that the substantive law of Queensland applies.[108]

97 That said, senior counsel for the first defendant did not contend that the relevant laws could not be dealt with in this Court. In substance, he submitted that it was preferable that the task be undertaken in the Supreme Court of Queensland.[109]

98 As to PIPA, senior counsel emphasised that the plaintiff had commenced that pre-litigation process, which 'remains pending'. Senior counsel submitted that the plaintiff's commencement of that process via her present solicitors was indicative of a 'level of comfort' in prosecuting her proceeding in Queensland.[110]

99 As to the prospect that completion of the PIPA process might complicate the continuance of the present proceeding were it to be transferred to Queensland, senior counsel later proffered limited concessions.[111]

100 As to matters of location, senior counsel for the first defendant emphasised that the solicitors for the first defendant, third defendant and fourth defendant are all in Queensland and that the second defendant's solicitors are based in New South Wales. By contrast, the plaintiff's solicitors are based in Melbourne but, it was said, 'represent clients in Queensland as well'. In that context, it was submitted that 'a purely statistical analysis' favours transfer to Queensland.[112]

101 In respect of the parties, senior counsel emphasised that while the plaintiff is based in regional Victoria, the proceeding is in Melbourne.[113]

102 As to the other parties, senior counsel submitted that -

The first defendant is, obviously, the State of Queensland. It doesn't have any relevant presence in Victoria. The second defendant ... [has] general counsel and a registered office in Melbourne, but archives in Leichardt in Sydney. The third defendant is a Queensland body, as is the fourth defendant. And, in my submission, when those locations are weighed up they also strongly favour ... Queensland.[114]

103 As to the convenience of the parties, senior counsel first addressed the position of the plaintiff and submitted, among other things, that -

(a) she had lived 'most of her life in Queensland';[115]

(b) her concern about her family finding out about the proceeding was not unusual;[116]

(c) she was not required to disclose the proceeding to her family, although she seems to have disclosed it to her sister;[117]

(d) the proceeding could be heard in Rockhampton or Brisbane and even if the proceeding were heard in Melbourne the plaintiff would still have to travel from regional Victoria;[118]

(e) in any event, such concerns were likely to 'confront a litigant no matter where they're dealing with their case';[119] and

(f) the suggestion that she would call 36 witnesses was 'an overreach' and, in any event, 'in modern litigation ... physical attendance isn't always required'.[120]

104 In respect of the specific issue of the plaintiff's psychiatric health, senior counsel submitted -

There isn't any evidence of the kind that you see in a number of the other cases where, perhaps, the expert witness or perhaps the treater has talked about very dire consequences, which is often the case in [a] transfer application. The difficulties of attending a trial in Queensland, much of that will be experienced whether or not the trial is in Melbourne or Queensland. And, obviously, psychological suppose [sic: support], which is routinely needed by plaintiffs who are litigating their claims in this area, would be available online, as it generally has been for the last five years or so.[121]

105 Senior counsel emphasised that the plaintiff's treating psychologist and two of her friends were in Melbourne, not central Victoria.[122]

106 In respect of the risk of psychiatric breakdown, senior counsel submitted that 'every plaintiff ... runs that risk' and otherwise submitted that the plaintiff could rely upon supports 'on the phone or online'. Senior counsel contrasted the present circumstances with those in McCormack v State of New South Wales ('McCormack').[123]

107 In respect of the defendants' witnesses, senior counsel submitted that while it was 'simply not known at this stage' which witnesses would be called, 'the defendants' lay witnesses are largely in Queensland'.[124] Later, senior counsel referred to evidence of very elderly and infirm 'potential witnesses'.[125]

108 In respect of the 'flexibility and availability' of the Supreme Court of Queensland, senior counsel referred to the evidence and submitted that -

... there is at least an indication of significant flexibility on the part of the Queensland court there. The compulsory conference which still needs to happen for the pre-litigation process can happen quickly, and that [is] set out in [PIPA] and you've seen what Mr Uniacke [the fourth defendant's solicitor] says about how quickly that can happen.

There are relatively few steps that have been taken here, and ... they'll be taken to be in the Queensland proceeding, either to be used in the compulsory conference or in the proceeding if the proceeding doesn't settle.[126]

109 Senior counsel for the first defendant otherwise referred to mode of trial, which had been raised by the plaintiff. He submitted that, as a matter of authority, the factor is irrelevant.[127]

110 Senior counsel completed his submissions by comparing the present circumstances with those considered in three recent cases.[128]

111 The legal representatives of the second and third defendants adopted the submissions of the first defendant.[129]

112 Senior counsel for the fourth defendant also adopted the submissions of senior counsel for the first defendant. That said, she sought to advance 'a few extra things'.[130]

113 In respect of matters including 'the care needs of the plaintiff and the potential exacerbation of her psychological condition', senior counsel for the fourth defendant fiercely criticised the plaintiff for not swearing an affidavit of her own. Senior counsel also criticised aspects of the reports of Ms Moloney, Dr Francis and Dr Cohen as well as the affidavit of the plaintiff's solicitor.[131]

114 In that connection, it was submitted, for example, that there was no specific evidence that the plaintiff's dog would be unable to travel to Queensland with her for a trial.[132]

115 Senior counsel for the fourth defendant then turned to the issue of PIPA and provided a summary of the relevant sections before explaining the substance of the two parts of that scheme. Senior counsel submitted that it was 'most likely that division one would effectively have already been complied with' and, in respect of division two, the 'work that's already been done in Victoria is not lost'. In that context, senior counsel submitted that 'this matter could be before a court in a very short period of time and in a position to ask for a trial date'.[133]

116 Further, and seemingly in respect of any delay that might be occasioned as a consequence of transfer, senior counsel for the fourth defendant pointed to the plaintiff's own unexplained delays and said that the plaintiff's submission was 'disingenuous'.[134]

117 Finally, senior counsel asserted that some of the witnesses potentially to be called by the fourth defendant were elderly and in Queensland. She submitted that 'elderly witnesses often struggle more with video'.[135]

118 In response, senior counsel for the plaintiff[136] first referred to PIPA and emphasised that the defendants had not waived the requirements. Senior counsel also said that the defendants could not be expected to co-operate in respect of the PIPA requirements, and pointed to a letter from the solicitors for the fourth defendant.[137]

119 From that point, senior counsel for the plaintiff acknowledged that the alleged torts were committed in Queensland and that Queensland law therefore applies. That said, he submitted that the arguments concerning any difficulties in applying that law were 'unjustified'.[138]

120 Senior counsel for the plaintiff then referred to the location of the parties and witnesses. In that connection, he submitted that there is a real issue as to whether any trial of the matter in Queensland would be in Brisbane or Rockhampton. He submitted, in particular, that -

(a) if the trial were in Brisbane, then the defendants' elderly and infirm witnesses would probably have to travel anyway, or give evidence via video link; and

(b) if the trial were in Rockhampton, there would be only one or two Supreme Court sittings there per annum.[139]

121 In respect of witnesses, senior counsel acknowledged that the plaintiff would not call the number identified in the affidavit of the plaintiff's solicitor. However, he submitted that it was unlikely that the large number of potential witnesses identified by the various defendants would ever end up being called.[140]

122 Senior counsel for the plaintiff then moved to what he described as the 'heart of the matter', namely 'the effect of these proceedings on the plaintiff'. He described that as 'the determinative consideration' and referred to aspects of the opinions of Dr Cohen and Ms Moloney as well as the plaintiff's diagnosis and her fragility.[141]

123 In that general connection, senior counsel submitted as follows -

...it's completely clear from the uncontradicted medical evidence that's before Your Honour, that travelling to Queensland in itself would be damaging to the plaintiff, being made to be absent from her ongoing supports, which are not only her dog, not only her contact with her psychiatrist, but also contact with her community, and one can imagine the familiarity of being in one's own bed.

These things, to be taken away from those at a time which is already going to ... be exceptionally stressful; being asked to go back to the scene of the crime, so to speak, and revisit what happened there in evidence, would be in our respectful submission, unacceptably damaging to the plaintiff. Extraordinarily and unacceptably damaging.[142]

124 In reply, senior counsel for the first defendant -

(a) pointed to at least one 'difficulty' relating to the Queensland provision concerning the discretion to award interest;

(b) submitted that there was no evidence concerning what had been said by senior counsel for the plaintiff in respect of sittings in Rockhampton;

(c) noted that it was not clear on the evidence where the first defendant's 'departmental witnesses' are located; and

(d) submitted that the plaintiff's supports are 'already scattered to some extent'.[143]

125 Thereafter, senior counsel for the first defendant and senior counsel for the fourth defendant each conveyed instructions obtained in respect of the PIPA requirements.

126 In that regard, senior counsel for the first defendant said that -

... the State of Queensland ... would waive compliance with the relevant requirements of that Act, apart from disclosure and completion of a liability response pursuant to s 20 ... and the convening of a compulsory conference pursuant to s 36.[144]

127 I should note that senior counsel for the plaintiff described that concession as 'really not a waiver at all'.[145]

128 Senior counsel for the fourth defendant stated her instructions, as follows -

... my client would waive the division 1 compliance and in respect of division 2, disclosure and interrogatories have been made and so that is effectively complied with. And so all that is needed by the plaintiff would be to serve a part 2 of the claim which is in relation to economic loss and it could refer to the actuarial report which is already being served.[146]

Jurisdiction submissions (including submission to jurisdiction or 'waiver')

129 As earlier noted, the oral addresses in respect of jurisdiction also touched upon the issue of waiver or submission to jurisdiction.

130 Counsel for the first defendant[147] commenced by confirming that it was not in dispute that the Court had jurisdiction to hear and determine the proceeding. He said that the issue was whether the Court could exercise its jurisdiction to hear and determine the proceeding.[148]

... the court should determine that it cannot exercise its jurisdiction because the effect of the s 58 [of the Judiciary Act] is to qualify or to limit the court's exercise of jurisdiction where a State objects to that exercise. Where that occurs, the State submits that the effect of s58 ... is to require that the proceeding be heard and determined in the way specified by that provision, namely, in the Supreme Court of Queensland.[149]

132 Counsel developed that submission with reference to Breavington, which, as I have noted, concerns s 56 of the Judiciary Act. Counsel described s 56 as analogous to s 58 and also referred to the 'substantial textual and contextual similarities' between the provisions.[150]

133 Counsel thereafter referred to various provisions and other features, in the course of which he confirmed that, as far as the first defendant was aware, no authority has relevantly considered the effect of s 58 of the Judiciary Act,[151] albeit that, as counsel later confirmed, s 58 has been in the same form since enactment in 1903.[152]

134 Counsel then went to Breavington and highlighted certain passages in the reasons of Mason CJ, the joint reasons of Wilson and Gaudron JJ and the reasons of Deane J.[153] In that connection, counsel submitted that -

... it is a basic interpretative principle that an interpretation of the High Court of a particular provision of an Act is a powerful indicator of the correct interpretation of a provision of the same Act which serves similar purposes, and uses identical or substantially similar language.[154]

... there are substantial textual and contextual similarities between ss 56 and 58, which engage that interpretative principle and which require the provisions to have a common meaning. In terms of the textual similarities, ..., both provisions refer to any person making a claim. Both provisions refer to a claim whether in contract or tort. Both provisions confer permission on a person in the sense that both provisions refer to the person, may, in respect of the claim, bring a suit.

And both provisions refer to the court in which the suits to which they refer may be brought. The only substantive difference is that s 56 deals with claims against the Commonwealth, and s 58 deals with claims against the State. As to the contextual similarities, ... . Both provisions appear in part 9 of the Act, which is headed, 'Suits by and against the Commonwealth and the States.' And both provisions are direct of the same purpose by identifying the fora in which certain claims may, and should be, commenced.

And Your Honour will recall the importance of the location of s 56 in the Judiciary Act to the meaning of that provision identified in Breavington by both the Chief Justice ... and Justices Wilson and Gaudron ... . So ... , the point is a simple one. Namely that the two provisions are analogous, they are substantially similar textually and contextually. They should have a common meaning. If they do bear that common meaning ..., the consequence is that the court should proceed on the following basis.

First, s 58 does not involve the conferral or investing of jurisdiction. Second, s 58 operates to curtail or limit the exercise of the jurisdiction conferred by s 39(2) of the Judiciary Act in two ways. First, by requiring any right to proceed to be exercised only in the circumstances mentioned in the provision. And second, by imposing as a statutory condition, precedent of the institution of proceedings that the claim should have arisen in that state.

And where there has been an objection to jurisdiction, s 58 operates so as to require any proceeding brought against the state to be brought and determined by one of the courts referred to in s 58. Which in the present circumstances is the Supreme Court of Queensland.[155]

136 Counsel for the first defendant also submitted that the present case is an appropriate vehicle for the point, which led to submissions directed to the issue of waiver or submission to jurisdiction.

137 In the course of that aspect of his submissions, counsel for the first defendant asserted that the present point had not been known to his instructors within the 14 day period provided for by r 8.08(4) of the Rules. Accordingly, it was submitted, it would be 'unfair to proceed on the basis that my client had waived a point of which it was not aware'.[156] Later, counsel said that the point had become known to the first defendant as a consequence of observations made by Watson J in Armstrong v State of New South Wales ('Armstrong').[157]

138 In any event, counsel for the first defendant turned to the relevant contrary submissions of the plaintiff which, he said, should not be accepted because -

(a) the modern authorities of the High Court confirm that the right to proceed is conferred by the provisions that confer jurisdiction;[158]

(b) consequently, no right to proceed can derive from ss 56 and 58 of the Judiciary Act;[159]

(c) the present right to proceed 'derives only from s 39 [of the Judiciary Act]';[160]

(d) in the present instance, s 56 and, by analogy, s 58, are 'intended to ... curtail or restrict the exercise of ... jurisdiction where there's been a non-submission to its exercise;[161] and

(e) Breavington must be followed.[162]

139 The relevant written submissions of the plaintiff addressed the present issue relatively briefly. In particular, it was submitted that -

... both the jurisdiction and right to proceed [derive] from ss 75(iv) and 77(iii) of the Constitution, together with s 39(2) of the Judiciary Act.[163]

140 A footnote to that proposition states that Mewett and BATA comprise 'the present state of the law, notwithstanding the obiter remarks in Breavington'.[164]

141 In oral address, senior counsel for the plaintiff[165] developed a refined or further submission to the effect that the fact that Breavington had involved the Commonwealth and not a State gave rise to a 'profound difference' in the relevant circumstances.[166]

142 Before further developing that submission, senior counsel submitted that the first defendant's new point had been raised 'too late' and that it should be taken to have 'waived its right to object on this ground'.[167]

143 Senior counsel thereafter developed the refined or further submission, which he introduced in the following summary terms -

... we say there is a profound difference because of the identity of the bodies politic. One of the evident purposes of ss 56 and 58, which I'll come to, which is a manifestation of the Commonwealth's power in s 78 of the Constitution, to provide rights to proceed. In [s] 56 against the Commonwealth and in [s] 58 against the State. In other words, it's an abrogation of what would've been called Crown immunity for the purposes of those provisions.[168]

144 Senior counsel then referred to aspects of BATA, Mewett and Breavington and placed emphasis upon ss 8(1) and 9(1) of the Crown Proceedings Act, which, he submitted, presently operated to remove Crown immunity.[169]

145 In respect of Breavington, in particular, as well as the provisions of the Crown Proceedings Act, senior counsel submitted as follows -

... in [the] case of [s] 58, the waiver by Queensland [of Crown immunity] can be effected through a number of ways, including by subjecting itself to jurisdiction or through an exercise of its own parliamentary sovereignty and removing its immunity from suit, which is what it's done. ...

And so we say, of course, what the High Court has done in Breavington is demonstrate that there is a particular avenue that you can pass through to sue the Commonwealth because s 56 is a statutory expression of the waiver of Crown immunity. And because it is the Commonwealth Parliament doing it, it is confined in its operation because it was an exercise of statutory power by the Commonwealth. Of course, in the case of Queensland, it's done [it] itself [in] a different way through the Queensland Crown Proceedings Act.[170]

146 In reply, counsel for the first defendant submitted that -

(a) the first defendant's conditional appearance, combined with filing the relevant summons within 14 days, had been 'sufficient to preclude any submission to this jurisdiction';[171]

(b) in respect of the plaintiff's refined or further submission -

The abolition of Crown immunity achieved by the Crown Proceedings Act ... is an abolition of Crown immunity in respect of claims falling within state jurisdiction. In our submission, it's not an abolition of Crown immunity for claims against the State which arise in federal jurisdiction, because the abolition of immunity in respect of those claims is achieved by the operation of different provisions, namely s 39(2) [of the Judiciary Act] and not the Crown Proceedings Act.

And in this respect, ... if the submission were that the Crown Proceedings Act was sufficient to confer jurisdiction on this Court, which had been restricted by s 58, there would be a real issue as to whether or not the Crown Proceedings Act could have that effect, or whether it would be invalid by reason of inconsistency.[172]

(c) the purpose of s 58 of the Judiciary Act is 'to curtail or restrict this Court in [the] exercise of jurisdiction when a State objects to it'.[173]

147 I have referred to the relevant statutory provision, the applicable authorities and principles, the evidence and the respective contentions of the parties.

148 The starting point is the place of the alleged torts, which is Queensland. That factor is significant, and favours trial in Queensland.

(a) the plaintiff resides in Victoria;[174]

(b) the first defendant is the State of Queensland;

(c) the registered office of the second defendant is in Victoria;[175]

(d) the third defendant is located in Bundaberg, Queensland;[176] and

(e) the fourth defendant is located in Rockhampton, Queensland.[177]

150 It will be apparent that there is no coincidence in the location of the alleged torts and the various parties.[178] I consider the issue of the simple location of the parties to be essentially neutral.

151 In any event, it was essentially common ground that the Court should consider all of the connecting factors identified in argument.

152 As I have noted, it was common ground that the applicable substantive law will be that of Queensland.

153 In that connection, the solicitor for the fourth defendant referred to various provisions of the Limitation of Actions Act 1974 (Qld), Civil Liability Act 2003 (Qld) and Civil Proceedings Act 2011 (Qld). He also referred to the relevance of 'Queensland authorities' and sought to emphasise the jurisdiction and expertise of the Supreme Court of Queensland.[179]

154 In argument, senior counsel for the first defendant also referred to the Law Reform Act 1995 (Qld) and some Queensland authorities. As I have noted, it was essentially submitted that while it is possible for the Supreme Court of Victoria to deal with the various Queensland laws and authorities, it is preferable that the task be undertaken by the Supreme Court of Queensland.[180]

155 I accept that the familiarity of the Supreme Court of Queensland with the laws and authorities identified in argument lends weight to the contention that the trial should be in Queensland.

156 As I have noted, the parties broadly emphasised the connections of the various solicitors and likely witnesses with Victoria or Queensland, as the case may be.

(a) the plaintiff's solicitors practice primarily in Victoria, her identified supports are located in Victoria and her proposed witnesses are seemingly also located in Victoria;[181]

(b) the first defendant's 'primary solicitors' are located in Queensland and the witnesses that it might call at trial are anticipated to be located in Queensland;[182]

(c) the second defendant's solicitor is located in New South Wales (although the solicitor's 'legal team' is primarily based in Melbourne) and certain 'potential' witnesses located in Queensland are elderly and in many cases affected by issues such as restricted mobility and lack of mental acuity;[183]

(d) the third defendant's solicitors are located in Melbourne;[184]

(e) the fourth defendant's solicitor is located in Queensland and the 'categories of witnesses' which it is 'likely' to call at trial are, or are anticipated to be, in Queensland and may be elderly.[185]

158 In the present case, the issue is not readily resolvable when viewed at such a level of generality.

159 I should say that there are several considerations bearing upon an analysis of the relevant evidence. In particular -

(a) a State party is likely to have 'the full resources of the State behind it' and 'its servants and agents travel outside the State carrying on the affairs of the State';[186]

(b) on occasion, the firms of solicitors involved can be part of, or are associated with, national practices and therefore can be more readily able to organise themselves to participate effectively in litigation in other States and Territories; and

(c) various categories of witnesses often now give evidence remotely in such trials (particularly, medico-legal experts and witnesses whose evidence is likely to be short).

160 In that general connection, the present application and associated hearings were of significant dimension and complexity and each of the firms of solicitors retained on behalf of the various defendants seem to have had little difficulty in attending to the proceeding appropriately on two separate occasions in Melbourne. Indeed, it was apparent that at least the first defendant had Queensland solicitors present at the hearing on 28 July 2025 as, I would infer, did the fourth defendant.[187]

161 The plaintiff's solicitors were able to attend appropriately in respect of the hearings in Melbourne and it was not said that if the proceeding were transferred to Queensland the plaintiff's solicitors would be unable to act. That said, while the plaintiff's solicitors apparently make themselves available to clients in or from Queensland, they appear on their website as personal injury law experts 'in Victoria'.[188] The plaintiff's solicitors do not have an office in Brisbane (or Rockhampton) and there is no evidence that they have an associated office there.[189]

162 More broadly, the terms of the retainer between the plaintiff and her solicitors are not the subject of any specific evidence.[190] However, litigation of the present kind is practically invariably conducted by such firms on a 'no win, no fee' basis and the evidence includes material relating to the plaintiff's work history and earnings.[191] While the plaintiff is not destitute, her history of work and earnings does not suggest that she is in a position to fund Supreme Court litigation of the present scale against four defendants, including the State of Queensland. In light of the material to which I have referred, it is hard to believe that the retainer between the plaintiff and her solicitors could be other than 'no win, no fee'.

163 In any event, whether the circumstances pertaining to the retainer are 'no win, no fee' or not, the plaintiff would often have to pay at least some of the disbursements. As she and most of the witnesses that she would be likely to call are in Victoria, and it would be desirable, and may even be requested by one or more defendants, that some of them be called in person, the disbursements incurred by her in respect of a trial in Queensland could well be considerably greater than if the trial were in Victoria.

164 Although there is admittedly no precise evidence on the topic, the circumstances do tend to suggest that there is a risk that the plaintiff would face some degree of undue financial hardship if the proceeding were to be transferred to Queensland, especially if it were to be transferred to the Supreme Court at Rockhampton. At the same time, it is not apparent that the defendants, as a group, would face the same potential barrier; at least not to the same degree.

165 In the circumstances, the simple location of the various solicitors presents outwardly as an essentially neutral consideration, although there does seem to be the palpable risk of some wider considerations at play.

166 Similar and other difficulties arise in respect of potential witnesses. Some of the difficulties arise as a consequence of the form of the various affidavit material.

167 The starting point is the presently relevant aspects of the plaintiff's pleading. In that regard, the plaintiff -

(a) names certain alleged perpetrators of physical and/or sexual abuse, including Kevin Baker, who is alleged to have been a maintenance staff member at 'St Joseph's Home in Neerkol', a home said to have been operated and managed by the second defendant;[192]

(b) alleges that she was physically abused by unnamed 'nuns' at 'Neerkol' (particularly, slapping and poking for 'no apparent reason' and 'violently scrub[bing]' the plaintiff while bathing);[193] and

(c) alleges that she complained to 'Sister Geraldine' about alleged sexual abuse by one of the other named perpetrators, Fr Reginald Durham.[194]

168 In that context, it is evident that all of the alleged perpetrators of alleged sexual abuse are now deceased, save for Mr Baker, who is resident in Queensland.[195] There is no evidence that any defendant has made contact with Mr Baker.

169 As at 30 January 2025, the second defendant had made enquiries in respect of the 'nuns', including Sister Geraldine. The solicitor for the second defendant deposes to the age, state of health and general circumstances of the 'nuns'. Several are infirm and in aged care, including Sister Geraldine. All are resident in Queensland (and almost all are in Rockhampton).[196]

170 It will be apparent that the allegations against the 'nuns' present as somewhat lesser in potency and dimension than some of the other allegations in the proceeding, save, perhaps, for the allegation of complaint to Sister Geraldine.

171 In respect of Sister Geraldine, the solicitor for the second defendant deposes, in substance, that she -

(a) is 95 years of age and in aged care in Rockhampton;

(b) has and has had various medical conditions and restrictions and is seemingly in pain and discomfort, unable to walk, and requires a wheelchair to mobilise (from which she requires a two person transfer);

(c) only leaves aged care for medical attendances, for which she is transported by ambulance;

(d) has severe hearing loss and a failing memory at times, although she has 'good sharpness and responsiveness'; and

(e) would be unable to fly interstate to give evidence.[197]

172 The solicitor thereafter deposes, as follows -

As at the date of this affidavit, I have not spoken with the Sisters identified ..., particularly as the proceedings have just been commenced and the parties have not served medical or expert evidence, or discovered any documents that might shed further light on the Plaintiff's allegations in respect of St Joseph's. It is my practice to wait to speak to witnesses - particularly those who are elderly or vulnerable - until I have a detailed set of allegations and material to put to them, so that I do not have to speak to them more than once unless necessary. Accordingly, I have not had the opportunity to form a view as to whether those Sisters could or would be called as witnesses in these proceedings. Noting the various medical conditions identified ... I have also not had the opportunity to form my own view as to whether each of those witnesses is capable of giving evidence.[198]

173 As I have earlier noted, the solicitor for the second defendant swore one affidavit, in January 2025. It follows that the second defendant's position was not updated to the date of the hearing.

174 Much of the presently relevant evidence of the other defendants was also not up to date and, in any event, was broadly even less informative and therefore not particularly helpful.

175 In that regard, on 26 November 2024, the solicitor for the first defendant deposed that -

1. Witnesses the First Defendant will call, being departmental staff and/or those able to give evidence concerning the relevant records, practices, procedures and resourcing would likely reside in Queensland.
2. Should any further witnesses be required at trial, including witnesses from the Second Defendant, Third Defendant and Fourth Defendant, it is likely to be the case that those witnesses reside in Queensland.[199]

176 While two later affidavits were filed on behalf of the first defendant, neither updated the position in respect of potential witnesses,[200] save, perhaps, in respect of a potential examination of the plaintiff by a medico-legal psychiatrist, Dr Steinberg.[201] That said, Dr Steinberg was there identified only indirectly (in emails among a bundle of exhibited correspondence and other documents).

177 For his part, on 31 January 2025, the solicitor for the fourth defendant deposed that -

(a) various 'categories' of witnesses were 'likely' to be located in Queensland, and, due to the lapse of time, elderly, particularly -

(i) '[p]arishioners and/or former parishioners of the Diocese of Rockhampton ... who may be called to give evidence in relation to matters alleged ... including as to the duties and practices of Fr Durham and Fr Hayes and priests in the Diocese';

(ii) 'Diocesan staff, past and present clergy members and/or those able to give evidence concerning the relevant records, practices, procedures, resourcing, duties of priest and relationships' in the relevant period and since; and

(iii) '[w]itnesses the Fourth Defendant may call to give evidence relating to the circumstances of the allegations against Fr Durham and/or Fr Hayes';

(b) in respect of the latter category, in particular, 'investigations are continuing';

(c) the fourth defendant may call evidence in relation to the third defendant - in respect of which it was also said that investigations were continuing, but that 'any such witnesses are likely to reside in Queensland'; and

(d) the fourth defendant 'may call evidence, including expert evidence, as to the Catholic Church's operation in Queensland and the Fourth Defendant's work specifically with First Nations peoples'.[202]

178 Subsequently, on 20 May 2025, the solicitor for the fourth defendant deposed, relevantly, that -

(a) the defendants had arranged for the plaintiff to be examined by Dr Steinberg (to whom I have already referred);

(b) an appointment with Dr Steinberg had become available on 7 July 2025, although a response was awaited concerning whether the plaintiff would be able to attend that appointment;

(c) it was anticipated that Dr Steinberg, would be called by the defendants at a trial and his office is in Brisbane;[203]

(d) otherwise, the fourth defendant's 'enquiries as to potential witnesses' continue;[204]

(e) in that connection, the solicitor is 'aware of the following persons who the Fourth Defendant is likely to call to give evidence relevant to the duties, practices and other relevant matters relating to Fr Durham and/or Fr. Hayes', namely -

1. Monsignor Grace, who is still a religious in the Diocese of Rockhampton.

2. Fr Gilbert, who is still a priest in the Diocese of Rockhampton but is elderly and I am advised the Fourth Defendant has doubts Fr Gilbert would be able to travel to Melbourne to give evidence;

3. Fr Hanifan, who is still a priest in the Diocese of Rockhampton, who is elderly and has some health issues but may be able to travel at present.[205]

(f) otherwise, the fourth defendant 'anticipates calling Diocesan staff able to give evidence concerning the relevant records of the Diocese relating to Fr Durham and Fr Hayes', who, it was said, are located in Rockhampton.[206]

179 The solicitor for the fourth defendant swore a later affidavit, shortly prior to the hearing on 28 July 2025, although that did not include anything presently significant concerning potential witnesses.[207]

180 I have earlier described relevant aspects of the above as largely not up to date and/or essentially uninformative. The context seems to me to be of some importance -

(a) in April 2024, the plaintiff's solicitors served the notice of claim under PIPA on at least the first and fourth defendants;[208]

(b) that notice indicated the plaintiff's intention to also give a notice of claim to the second defendant;[209]

(c) the affidavit of the second defendant's solicitor does not refer to any such notice, although it seems probable that such a notice was also served in April 2024;[210]

(d) in that general context, the notice of claim under PIPA appears to identify and rely upon the same physical and sexual abuse alleged in the present proceeding - indeed, the notice refers to claimed abuse by, among others, Mr Baker and the 'Nuns at Neerkol';[211]

(e) the plaintiff commenced the present proceeding by writ and statement of claim filed in October 2024 and, in that pleading, she referred to the alleged physical and/or sexual abuse to which I have referred, as well as her alleged complaint to Sister Geraldine;

(f) whilst the whereabouts of Mr Baker were evidently known in November 2024, no contact appears to have been made with him then, or since;

(g) further, whether or not Mr Baker would be able to attend a trial in Rockhampton, Brisbane or Melbourne, or, for that matter, give evidence at any such trial remotely, is not stated and, I would infer, remains unknown;

(h) whilst the whereabouts of Sister Geraldine were also known in November 2024, no contact was made with her by any of the defendants at that time and, indeed, it was said that the solicitor for the second defendant was unable to form a view about whether Sister Geraldine and the other nuns would be called as witnesses at any trial;

(i) in that regard, while the solicitor for the second defendant refers to her practice of speaking with witnesses after she has obtained 'a detailed set of allegations and material to put to them', I do not accept that the allegations in the pleading in respect of Sister Geraldine or the other nuns were so lacking in particularity that they could not reasonably have been raised with any such potential witness prior to the hearing on 28 July 2025;

(j) in any event, the age and medical condition of Sister Geraldine, at least, seems to me to be such that she could not reasonably travel to a trial in Melbourne or Brisbane, or maybe even Rockhampton;

(k) further, Sister Geraldine's hearing loss, in particular, would suggest that her evidence could not readily be given in person and would need to be given with the assistance of a hearing loop or other such technology that is most readily deployed with audio-visual technology used for remote witnesses;

(l) in that regard, I note that there is no evidence that Sister Geraldine could not give evidence remotely;

(m) any evidence to be given by the other 'nuns' seems likely to be much more peripheral to any real issues in the proceeding and, in any event, there is no evidence that any of them could not give such evidence remotely;

(n) otherwise, to the extent that the solicitors for the second defendant and fourth defendant refer to named potential witnesses, there seems to be no specificity in whatever relevant evidence might realistically be able to be given by any of them;[212]

(o) further, the affidavits of the solicitors for the first and fourth defendants are laden with vague references to categories of potential witnesses (for example, 'departmental staff', 'Parishioners' and 'Diocesan staff') that tend to be combined with equally vague descriptions of categories of potentially relevant evidence (for example, 'relevant records, practices, procedures and resourcing', 'duties, practices and other relevant matters' and 'the relevant records of the Diocese');

(p) such references are suggestive of wide investigations in an endeavour to uncover some element of evidence that could actually be relevant and useful at any trial, but none of it suggests that such investigations undertaken so far have yielded a particular witness that could give any evidence that is actually relevant and important to the determination of any particular issue and therefore likely to be called at any trial; and

(q) in that regard, the significant lapse of time within which such 'investigations' are said to have been 'continuing' together with the lack of any mention, or any real specificity in anything that is mentioned in any of the recent affidavit material, does not suggest that any of the continuing enquiries are realistically likely to yield large numbers of witnesses in Queensland. In any event, there is nothing to suggest such witnesses would not be able to either attend a trial in person in Melbourne or give evidence remotely at a trial, wherever it is held.

181 As I have earlier noted, senior counsel for the first defendant sought to neutralise aspects of the above by submitting that 'inevitably' it would not be known which witnesses might realistically be called (and, inferentially, in respect of what issues) at this stage in a proceeding.[213] Despite the attractive manner in which that submission was advanced, in the circumstances to which I have referred I do not accept that it was inevitable that those things could not have been known and thereafter, able to have been stated with some greater precision than presently occurred.

182 In some ways similarly, senior counsel for the fourth defendant sought to submit that 'elderly witnesses often struggle more with video, ... even with the greatest of assistance that they can be given'.[214] Whatever else might be said about that submission, it might have been a little more persuasive if the affidavit evidence to which I have referred had actually grappled with the topic in respect of any particular potential witness.

183 In the end, despite its volume, it will be evident that the evidence to which I have referred did not assist me greatly in being able to discern where the interests of justice might lie with respect to -

(a) any and what witnesses actually likely to be called by the defendants;

(b) whether any such witnesses would want or be able to attend any trial in person in any particular place or places; and

(c) whether or not such witnesses would or would not be able to give their evidence remotely.

184 In so observing, I do not mean to say that the generalised, and to some extent uninformative, approach presently taken must always be viewed as not particularly helpful and therefore largely unpersuasive. As always, much depends upon, among other things, the time available to make investigations, the particular steps taken (and not taken) as well as the degree of candour evident in the material proffered.[215]

185 In any event, in the present circumstances I would draw the following relevant conclusions -

(a) although it is not confirmed, there must be some prospect that Mr Baker and/or Sister Geraldine would be called to give evidence at a trial;

(b) it is unknown whether or not Mr Baker would want to or could attend a trial in person (or, indeed, whether he might be unable to give evidence remotely);

(c) it is likely that Sister Geraldine would have to give evidence remotely, wherever a trial were heard;

(d) Dr Steinberg is likely to be called to give evidence - although, as a medico-legal expert, his evidence might well be called remotely wherever a trial were held;

(e) other witnesses may well be called - after all, there are several defendants, several named possible witnesses and several possible other 'categories' of witnesses and evidence;

(f) it is not presently possible to say how many other such witnesses would be called by the defendants, or what, precisely, they might be called to give evidence about. Although experience tends to suggest that, even in multi-defendant personal injury cases, the total number of witnesses called by the defendants in combination rarely exceeds a dozen in total;

(g) most or all such witnesses are likely to reside in Queensland (particularly in Rockhampton);

(h) the precise extent to which any such witnesses would want to attend a trial and give evidence in person is unknown;

(i) the precise extent to which any such witnesses might be unable to attend a trial in person, wherever such a trial might be held, is also unknown; and

(j) having regard to the resources likely to be available to the defendants in the present case -

(i) I would think that any such further witnesses would be able to be brought to court to give evidence wherever the trial might be held, if necessary; and

(ii) even if any such witnesses were unable to come to court, I could not conclude that they would be unable to be provided with resources that would allow them to participate appropriately if their evidence were required to be given remotely.

186 Notwithstanding all of the above, it should not be thought that the approach adopted by the solicitor for the plaintiff had a great deal more to recommend it. In particular -

(a) the plaintiff's solicitor deposed to '36 witnesses' based in Victoria (including the plaintiff), who 'can provide evidence in support of her claim for economic loss damages and general damages as well as evidence in relation to her clinical presentation and medical treatment';[216]

(b) save that it is said that the plaintiff wishes to give her evidence in person,[217] nothing is said about the position of any other potential witness or whether there would be any particular difficulty with any proposed witness giving evidence by video link; and

(c) nothing specific is said about whether any and what witnesses, including the plaintiff, would realistically be able to be transported to Queensland for a trial (in either Brisbane or Rockhampton, as the case may be).

187 In respect of the first of the above observations, as I have earlier noted, senior counsel for the plaintiff swiftly, and sensibly, retreated from any suggestion that the plaintiff might call 36 witnesses at such a trial.[218]

188 Notwithstanding the limitations to which I have referred, however, the plaintiff's material did a little more readily permit some relevant assessments to be made.

189 In that regard, while the plaintiff's health was addressed as a somewhat larger and relatively distinct topic in argument (and so will be dealt with as such in further detail below), it is presently sufficient to observe that the only available medical evidence is that -

(a) she has a diagnosed psychiatric condition;

(b) she is under treatment in respect of that condition from both Dr Francis and Ms Moloney;

(c) she is traumatised and fragile;

(d) small triggers can cause her psychiatric condition to deteriorate; and

(e) she relies upon a supportive network of friends in central Victoria and Melbourne (as well as her dog).

190 In the circumstances, I accept that if the plaintiff were to give evidence at a trial she would require support from her medical treaters, close friends and dog. Although the question of telehealth and other forms of remote support are not directly addressed in the material, I accept that the evident fragility of her position is such that it is probably more desirable that she receive personal supports during the acute stresses of a trial.

191 In that general context, the plaintiff would need to give evidence at a trial, and it is apparent that she wishes to do so in person. As I have noted, she is located in central Victoria, which is a manageable drive from the Supreme Court in Melbourne.[219]

192 I should say that the position of the plaintiff in a case of the present kind is obviously capable of being qualitatively different to that of many other witnesses at such a trial except, perhaps, for those who are alleged to be perpetrators or otherwise directly involved. In respect of the plaintiff or other such witnesses, the deeply personal nature of the allegations concerned, as well as the ramifications of such a case, can mean that the desire to be personally present is capable of being a factor of significance. I accept that such a factor is of present significance.

193 I should add that there seem to me to be some features of the circumstances of the plaintiff that would in ordinary circumstances raise a significant prospect that at least some of the defendants would want her to be made available for cross-examination at trial in person.

194 In that regard, the fact that the plaintiff's psychiatric condition is said to have been triggered after she moved to Victoria and that she is, and has evidently been, in employment before and since would often invite detailed exploration at such a trial, together, perhaps, with some of the other matters highlighted in the oral submissions of senior counsel for the fourth defendant.[220]

195 Ordinarily, some of those same elements might well also cause one or more defendants to request that one or more of the medical treater witnesses be present for cross-examination, if possible (and even, perhaps, some of the lay witnesses).

196 In any event, the affidavit of the plaintiff's solicitor identifies the following general categories of evidence -

(a) medical treaters - in respect of which reference is made to the name and locations of 14 medical witnesses, including Dr Francis and Ms Moloney;[221]

(b) economic loss - in respect of which reference is made to the professional designation and locations of 14 de-identified lay witnesses as well as a named forensic accountant, Paul Thomson;[222] and

(c) general damages - in respect of which reference is made to the locations of six de-identified lay witnesses.[223]

(a) no other liability witnesses are specifically identified or referred to in the affidavit;

(b) that said, in such a case, medical evidence, at least, can be relevant to the issue of causation;

(c) strictly speaking, of course, both medical and lay evidence can be relevant to an assessment of general damages as well as the assessment of damages for loss of earning capacity;

(d) although the affidavit refers to and extracts part of the first report of Dr Cohen,[224] her name does not appear in the lists of medical and other witnesses (which, in the circumstances, I would conclude was an oversight);

(e) the affidavit does not refer to the plaintiff's sister, although she was the only witness identified in the earlier notice of claim under PIPA;[225] and

(f) the affidavit otherwise refers to eight witnesses that the plaintiff would intend to rely upon for psychosocial support at points during any trial (in addition to the support of her dog), including Dr Francis, Dr Moloney, five of the witnesses identified in respect of the claim for general damages and one witness identified in respect of the claim for loss of earning capacity.[226]

198 In that general context, it would, of course, be necessary for the plaintiff to call some evidence in respect of her claimed injuries, their causation and claimed past and future effects as well as matters such as treatment.

199 In that regard, I have earlier referred to the reports of Dr Cohen, consultant psychiatrist. She proffers a psychiatric diagnosis. I would have thought that it would be necessary to call Dr Cohen at a trial. Dr Cohen's report identifies her as being in Melbourne.[227] That said, such medico-legal evidence is now often given via video link, even if the witness is also located in Melbourne.

200 I would also think that it would be necessary to call Ms Moloney, treating psychologist. However, she is in a different position to Dr Cohen. As a treater (and identified supporter) - particularly in light of the references in her report to indigenous issues, trauma (including transgenerational trauma), the plaintiff's work and, especially, the evident triggering of the plaintiff's symptoms in that work (inferentially in or about March 2020) - the substance of Ms Moloney's evidence would often be sought to be given in person, if possible. As I have earlier indicated, I tend to think that there would also be a significant prospect that one or more of the defendants would seek to cross examine her in person. She is evidently located in Melbourne.

201 Mr Doig's affidavit refers to a significant number of other medical practitioners.[228] There is nothing about those references that would suggest that many or perhaps any of them are likely to be called to give evidence at a trial.

202 The only exception is Dr Francis, the treating general practitioner. Having regard to the contents of his report, I would think that he would need to be called, although his evidence is likely to be considerably briefer than that of Ms Moloney and it is at least possible that it might appropriately be given via video link.

203 That said, as a treater and identified psychosocial supporter, the plaintiff would be likely to desire that he be present in person at a trial, if possible. As I have also indicated, one or more of the defendants might want to cross examine him in person anyway. He is evidently in central Victoria.[229]

204 Otherwise, as I have indicated, the solicitor's affidavit refers to a sequence of further lay witnesses in respect of her claims for general damages and loss of earning capacity.

205 As I have noted, several of those witnesses are also identified as psychosocial supporters. It would be unusual for a plaintiff in such a case to call more than two or three such witnesses, although the fact that some seem to relate to her study, work and professional life and others to her personal life might presently make it reasonable to conclude that there could be two or three witnesses in each category and therefore perhaps five or six in total.

206 It is, of course, more likely that those also identified as supporters during the trial would be called than those who are not so identified.

207 In that context, I accept that each of those witnesses would probably be preferred by the plaintiff to be called in person and, as I have indicated, one or more defendants might ultimately share the preference. Each relevant witness is evidently in Melbourne or Victoria.

208 As I have noted, the solicitor also refers to Mr Thomson, forensic accountant. He would probably need to be called, although it is very common for such evidence to be given via video link.

209 I should, perhaps, briefly mention the plaintiff's sister. It is presently difficult to know what she might be called to give evidence about and, indeed, whether there is any real prospect that she might now be called. It would have been helpful to have an explanation of the position, but, in the end, I doubt that anything much presently turns upon it as a trial in which the witnesses identified and referred to generally above were called would seem to me to comprise a sufficiency of evidence, at least in respect of the case likely to be pursued by the plaintiff.

210 To be clear, in the circumstances to which I have referred, I would expect that the following named or described witnesses would be called by the plaintiff -

(a) the plaintiff herself;

(b) Dr Cohen, Ms Moloney and maybe also Dr Francis;

(c) Mr Thomson;

(d) perhaps five or six lay witnesses.

211 It follows that 10 or 11 witnesses would likely be called in the plaintiff's case. Of those, at least two might be expected to give evidence remotely. Some of the others might too, although, as I have indicated, it may well be sought that the plaintiff give evidence in person and that may be the position in respect of several of the other witnesses as well, particularly Ms Moloney. All of those other witnesses are in either Melbourne or Victoria.

212 That necessarily brings me back to the issue of whether it would realistically be possible for the plaintiff to arrange for herself and the other witnesses to whom I have referred to travel to and attend a trial in Brisbane (or, perhaps, Rockhampton).

213 As I have earlier noted, it is unfortunate that the issue of the plaintiff's financial and other such resources is not dealt with directly in the solicitor's affidavit. Although it might be said that the focus of the plaintiff's ultimate contention fell upon the issue of her health to which I will shortly come in some further detail.

214 That said, the solicitor's affidavit does extract a passage from the report of Ms Moloney directed to 'financial burden', although that passage would also not seem to be directed to a prospect of the kind to which I have referred.[230]

215 Nonetheless, as I have noted, the plaintiff's solicitor -

(a) does refer to elements of the plaintiff's background, study and employment history, present employment and circumstances generally;[231] and

(b) exhibits a range of documents relevant to the plaintiff's past and present employments and earnings, particularly the report of Mr Thomson.[232]

216 There is nothing about any of that which suggests that the plaintiff would readily be in a position to pay for the personal attendance of anyone, other than perhaps herself, at a lengthy trial in either Brisbane or Rockhampton, without enduring a degree of undue financial hardship.

217 On the other hand, for a range of reasons to which I have already referred or alluded, I doubt that it would be in the interests of justice to propagate a situation in which, as a matter of practical reality, many such witnesses would be likely to be required to give evidence via video link from Victoria.

218 As I have earlier indicated, the present issue cannot readily be resolved by simply counting spectres of 'potential' categories of witnesses and evidence. It is unfortunate that, to a significant extent, all of the relevant affidavits were drawn on the basis that the simple raising of such spectres could be determinative of the issue.

219 In any event, having evaluated the rather imperfect evidence available, together with the broader circumstances apparent or realistically likely -

(a) the plaintiff is psychiatrically fragile, in Victoria, and would prefer to participate at trial in person;

(b) some of the persons likely to be called as witnesses at a trial are also likely to be relied upon by the plaintiff for medical and/or psychosocial support during the trial;

(c) in the acute circumstances of a trial, support via telephone or telehealth or some other form of remote connection is unlikely to be a perfect substitute for in person support;

(d) there is a risk that requiring the plaintiff to transport such people to Brisbane or Rockhampton for a trial (including the plaintiff's dog) would impose on her a degree of undue financial hardship;

(e) in ordinary circumstances, the plaintiff and one or more of the defendants might well want several of her likely witnesses available at a trial to be cross examined in person;

(f) on the other hand, it is unknown whether or not Mr Baker could attend a trial in person;

(g) it is unlikely that Sister Geraldine would be able to give evidence at a trial other than remotely;

(h) the precise position concerning any further witnesses that might be called by the defendants is not known, although it is not unreasonable to assume that most of them might be or are located in Queensland;

(i) the defendants are nonetheless likely to have resources available that could see any necessary witnesses transported to Victoria for a trial, if necessary, and otherwise appropriately supported to provide evidence via video link.

220 On balance, the overall circumstances in respect of solicitors and witnesses significantly favour trial in Victoria.

221 On 19 November 2024, shortly after the proceeding was issued, Baker JR made a timetable of orders directed to the usual interlocutory steps, including pleadings, discovery, interrogation and subpoenas. In that general connection, among other things -

(a) medical and/or expert reports were to be served by 19 September 2025;

(b) the plaintiff was required to serve particulars of special damage by the same date;

(c) the parties are required to have attended a mediation of the proceeding by 18 November 2025;

(d) the proceeding is fixed for trial to commence on 3 March 2026; and

(e) any application to adjourn or vacate the trial date must be made as soon as it is known that the trial is not ready to proceed on the date listed.

222 In respect of that timetable, and the proceeding more generally -

(a) the listed trial date remains in place;

(b) the plaintiff has evidently served the medical expert material to which I have earlier referred, as well as particulars of special damage and a forensic accounting report of Mr Thomson;[233]

(c) as I have noted, the defendants have taken steps to have the plaintiff examined by Dr Steinberg and intend to rely upon his evidence at trial;

(d) I was informed that discovery and interrogation have taken place;[234] and

(e) no party informed me that the proceeding would not presently be in a state to proceed to mediation by 18 November 2025 and trial commencing on 3 March 2026.

223 In short, absent a transfer to Queensland, the proceeding should be mediated within a matter of weeks and, if it does not resolve at mediation, proceed to a trial commencing a little over three months thereafter. The reality is that if the matter does not resolve at the ordered mediation, the parties would likely also have the option of a judicial or court annexed mediation shortly prior to the listed trial date.

224 In respect of the position in the Supreme Court of Queensland -

(a) on 26 November 2024, the solicitor for the first defendant deposed to an enquiry by email with a view to listing 'a civil matter' for a 'two-week trial', to which a Court officer responded that there was then availability in identified weeks in March, April and May 2025, albeit that availability was said to be 'constantly evolving';[235] and

(b) on 31 January 2025, the solicitor for the fourth defendant referred to the dates to which the solicitor for the first defendant had referred and otherwise deposed as follows -

... the standard practice of [the Supreme Court of Queensland] would be to have the matter proceed to trial (or otherwise resolved) within six months of the filing of the various defences, pursuant to paragraph 9 [of] the Amended Practice Direction 9 of 2023 ... . This would be a similar timetable to the present proceeding, subject to the Plaintiff complying with the pre-court procedures and requirements under PIPA.[236]

225 The part of the Amended Practice Direction referred to by the solicitor reads as follows -

Caseflow management under this Practice Direction is premised on the expectation that most proceedings, if progressed in a timely manner, should be ready for trial or otherwise resolved within 180 days of the filing of the defence.[237]

226 Plainly, the Amended Practice Direction, which applies to all civil proceedings outside of a managed list, speaks to an 'expectation' rather than a 'standard practice'. If the 'standard practice' were that such matters proceeded to trial within six months of the filing of defences, one wonders why it would be necessary to state such an expectation.

227 I should, perhaps, add that it is apparent from the Amended Practice Direction that the practice in such cases is that a trial date is not allocated at the outset and must later be requested by filing a notice seemingly after the completion of most or all interlocutory steps, including mediation.[238]

228 In any event, it will be apparent that the solicitor for the fourth defendant contemplated that the timetable for the management of the proceeding to trial would be subject to the plaintiff 'complying with the pre-court procedures and requirements under PIPA'.[239]

229 In that connection, on 4 March 2025, the solicitor for the fourth defendant deposed more extensively to the requirements and practices in respect of PIPA as well as the preparation of proceedings for trial in the Supreme Court of Queensland. It is presently sufficient to note that the solicitor deposes that -

(a) in his experience, 'the usual reason for why claims brought pursuant to PIPA may take longer than the time anticipated by PIPA to proceed to a compulsory conference is due to the claimant's solicitors failing to fully comply with the provisions of PIPA';[240]

(b) a certificate of readiness must be completed by the parties before a compulsory conference;[241]

(c) if a claim does not settle at a compulsory conference, the parties are required to exchange mandatory final offers, open for 14 days and a court proceeding must not be commenced while the offer remains open;[242]

(d) in respect of the present claim -

1. I agree that it would be possible to proceed to a compulsory conference within around six months of service of a compliant Notice of Claim. Indeed given the Plaintiff has served considerable material already and recently advised ... of treating practitioners, it is possible the matter could proceed to a compulsory conference in less than 6 months from the service of a complying Notice of Claim if relevant records of treating practitioners, documents in support of the claim for economic loss are provided (noting the Plaintiff has already served an expert report in relation to economic loss) and where the defendants are in receipt of a medicolegal report from an independent expert retained by them.

...

1. ... if a complying Notice of Claim were served in mid-March 2025 ..., and the matter proceeded to compulsory conference within 6 months or less, and the matter failed to resolve at the compulsory conference, the common law proceedings could be issued in around late September or early October 2025.

...

• ... in this matter, where the pleadings could be closed in October or early November 2025:

  1. the list of documents and statement of loss and damage would be provided within 28 days, by late November or early December 2025;

  2. within 28 days thereafter, that is late December 2024 [sic: 2025] or mid-January 2026, the defendant would serve a written statement of expert and economic evidence; and

  3. based on my experience in unrelated matters in the Supreme Court of Queensland in recent times where enquiries have been made with the court as to trial dates, I believe it would be possible [for] a trial date to be given within one to three months thereafter, that is in around mid-February, March or April 2026.

...

1. In my experience, if a plaintiff's case is conducted efficiently and properly, including in the PIPA stage, it can be ready for trial within around two months after the close of pleadings.[243]

(e) more broadly -

1. If the Plaintiff's solicitors had issued and served a complying Notice of Claim within two to three months of receiving instructions from the Plaintiff on 17 February 2021, and if they had made arrangements for the medicolegal appointment shortly after receiving instructions, then in my experience it is possible this matter might have been the subject of a compulsory conference by late 2021 or early 2022.
2. Even if the Plaintiff's solicitors had only issued and served a complying Notice of Claim shortly after receiving the Cohen report, where such report is dated 9 May 2023, in my experience it is possible a compulsory conference could have been concluded by late 2023 or early 2024.[244]

230 In short, the solicitor anticipates that it could take about six or so months to complete the PIPA process (dependent upon, among other things, a 'complying Notice of Claim') as well as a trial date within about a further six months after that; that is, the effluxion of about 12 months in total.

231 That said, the entire process deposed to by the solicitor seems to carry within it plenty of scope for disputation.

232 In that regard, the estimates given in the solicitor's affidavit seem to be affected by a significant number of potential qualifications - most of which seem to be directed to the anticipation that any delay would really be the fault of a plaintiff's solicitor.

233 In any event, even without going to the parts of the affidavits of the plaintiff's solicitor directed to the present topic, the time frames deposed to by the fourth defendant's solicitor seem to me to be more likely to represent a 'best case' than an ordinary or usual one.

234 The present case seems to me to be unlikely to represent a best case or perhaps even an ordinary one. In that regard -

(a) it is tolerably clear from the terms of the affidavit of the solicitor for the fourth defendant that he does not consider the plaintiff to have served a 'complying' notice of claim under PIPA; and

(b) after service of that notice, the solicitor sent a letter to the solicitors for the plaintiff that took issue with the multiple respects in which it seems to have been considered that the notice was defective and, among many other things, there posed dozens of requests for particulars that are more aptly described as interrogatories.[245]

235 At the very least, noting that a 'complying' part one of the notice of claim seems to be required prior to the claim going to compulsory conference, it is hard to imagine that the present claim could readily be regarded by all parties as being in a position to proceed to such a conference within the shortest possible time.

236 Notwithstanding the above, as I have earlier noted -

(a) senior counsel for the first defendant submitted that the affidavit material indicated that there was 'significant flexibility on the part of the Queensland [C]ourt' and that the entire process might unfold 'quickly' (and later proffered certain concessions in respect of the PIPA process);[246] and

(b) senior counsel for the fourth defendant advanced a number of submissions concerning PIPA, in particular, including the prospect that the parties might ask that a compulsory conference be dispensed with, and otherwise asserted that the matter 'could be before a court in a very short period of time and in a position to ask for a trial date' (and then also later proffered concessions in respect of PIPA);[247] and

(c) the respective concessions proffered in respect of PIPA were not identical - in particular, the concessions proffered by the first defendant would seem to waive most but not all requirements relating to the notice of claim but require that a compulsory conference be convened; and the concessions proffered by the fourth defendant would seem to waive all requirements relating to the notice of claim, but also require that a compulsory conference be convened.[248]

237 I should say that the PIPA process emerged as having present significance as a consequence of s 11(3) of the Cross-vesting Act, which requires that, subject to any order of a transferee court, a transferee court shall deal with the proceeding as if the steps taken in the transferor court, or similar steps, had been taken in the transferee court.

238 The precise interaction between that provision and the PIPA provisions to which I have referred, seems to me to be capable of giving rise to issues of considerable complexity. That said, no party presently explored those complexities; indeed, all parties seemed content for the issue to be approached on the basis that if the proceeding were transferred to Queensland, the PIPA processes would need to be complied with to the extent that they are not waived or otherwise dispensed with.

239 For completeness, I should say that argument in respect of the present issue touched upon another issue of apparent relevance, namely, the prospect that if the proceeding were to be transferred to Queensland any trial could, in fact, come to be heard on circuit in Rockhampton, rather than in Brisbane.

(a) the prospect was very fairly acknowledged in the submissions of senior counsel for the first defendant;[249]

(b) senior counsel for the plaintiff thereafter identified the issue as a 'real' one and made a series of assertions, including that 'there are one, or perhaps two, sitting[s] of the Supreme Court hearing civil matters in Rockhampton per annum';[250] and

(c) in reply, senior counsel for the first defendant criticised those submissions as lacking any foundation in the evidence.[251]

241 None of the evidence to which I have referred descended into any detail concerning the prospect that, if transferred, the proceeding could come to be heard on circuit in Rockhampton and, perhaps, managed to trial in or from the Supreme Court at Rockhampton.

242 That said, it seemed to be common ground that the prospect that the proceeding could be heard in Rockhampton was a real one.

243 Further, the first defendant and/or fourth defendant seem likely to have been in the best position to lead detailed evidence on the topic, yet neither did so. The situation is a regrettable one.

244 Notwithstanding the above, the conduct and management of Supreme Court circuits is far from an unfamiliar topic and I would doubt that the situation in Queensland is radically different to that in Victoria.

245 In that connection, it seems to me to be presently sufficient to conclude that -

(a) there is a real prospect that if the proceeding were to be transferred to Queensland, it may fall to be heard and perhaps managed by the Supreme Court of Queensland at Rockhampton; and

(b) the location of the litigation in a regional circuit town is less likely to see it managed and heard in a manner that conforms with the time frames favoured in the evidence of the solicitor for the fourth defendant.

246 In the circumstances to which I have referred -

(a) in Victoria, practically all of the necessary interlocutory steps seem to have been completed, the proceeding is shortly to be mediated and, beyond that, if necessary, there is an already allocated trial date in early 2026;

(b) were the proceeding to be transferred to Queensland -

(i) it seems likely that at least some of the defendants would insist upon the completion of at least some of the PIPA processes, including a compulsory conference;

(ii) having regard to the substantive differences in the concessions proffered in argument, I could not conclude that the extent to which the PIPA process might be required to be completed could not end up being an issue that might give rise to delays;

(iii) in those and other circumstances, it is not clear when a compulsory conference might be able to be convened;

(iv) beyond that, it is not clear precisely what might happen with the litigation if it were to be transferred to Queensland;

(v) that said, it is clear enough that the practice in Queensland would not see the proceeding allocated a trial date until after the filing of a written request, which would itself seem to follow the completion of interlocutory steps in that Court;

(vi) if the litigation were to be based in Rockhampton, I doubt that it would realistically be in a position to advance to trial within a period of months after reception of the proceeding into the Supreme Court of Queensland at Rockhampton;

(vii) in any event, perhaps in Rockhampton as well as Brisbane, the 'expectation' of the Court would seem to be that 'most proceedings, if progressed in a timely manner, should be ready for trial or otherwise resolved within 180 days of the filing of the defence';

(viii) even if that 'expectation' might be taken to represent a realistic assessment of a timeline likely to apply in respect of the present matter (which I gravely doubt), it would seem to me to be unlikely that it could see the matter proceed to trial in Queensland significantly earlier than the currently ordered trial date in Victoria;

(ix) in that regard, if the proceeding were to be transferred to Queensland (either Rockhampton or Brisbane), it would seem to me to be significantly more likely that it would end up being conferenced, mediated and/or going to trial, as the case may be, on dates materially later than the broadly corresponding steps in the timetable presently in place in this Court.

247 In my view, the issue of 'trial availability' significantly favours the proceeding remaining in Victoria.

Convenience of the parties, particularly the risks to the plaintiff's psychiatric health

248 That brings me to the final area of contention, which was described by senior counsel for the first defendant as the 'convenience of the parties' and carried within it several aspects previously addressed (particularly, the location of potential witnesses as well as the prospect that the proceeding might be transferred to Rockhampton).

249 That said, the remainder of the topic resolved into an examination of the evidence in respect of the potential effect of a transfer upon the plaintiff's psychiatric health.

250 In that regard, as I have noted, senior counsel for the plaintiff described the issue as 'the heart of the matter' and submitted that the prospect of a transfer of the proceeding to Queensland presented as 'unacceptably damaging'.[252]

251 In contrast, among other things, senior counsel for the first defendant submitted that -

(a) the plaintiff's commencement of the PIPA process indicated 'a level of comfort' in 'prosecuting her proceeding in Queensland';[253]

(b) the plaintiff's concerns about her family finding out about her proceeding were 'not an unusual concern' and, in any event, the plaintiff's sister had been proposed as a witness in the PIPA notice;[254] and

(c) a risk of breakdown is faced by 'every plaintiff' and the medical evidence does not rise to the level seen in other cases, particularly McCormack.[255]

252 For her part, as I have noted, senior counsel for the fourth defendant strafed the plaintiff and her material with a range of criticisms. Central was the assertion that there should be thought to be significance in the fact that the plaintiff had not sworn her own affidavit in addition to those of her solicitor who, in the usual way, deposed partly on information and belief. There were various other criticisms of wording, form, alleged inconsistency and purported failure to explain.[256]

253 Whatever might be able to be said about the circumstances in another case, I do not consider the fact that the plaintiff did not presently swear her own affidavit in respect of the matters referred to in the submissions of senior counsel to carry any significance. Nor do I consider senior counsel's various other criticisms to be so significant that, even if accepted, any or all of them should be taken to displace or materially diminish the essential evidence relied upon by the plaintiff, particularly, the substance in the respective opinions of Dr Cohen, Dr Francis and Ms Moloney.

254 In that general connection, I have already referred to the various reports of Dr Cohen, Ms Moloney and Dr Francis in some detail and noted that no contrary medical evidence was proffered by the defendants.

255 From that material, it is clear enough that the plaintiff is not likely to be comfortable with a transfer of the proceeding to Queensland. I do not consider her earlier service and then abandonment of a notice of claim under PIPA to be indicative of a 'level of comfort' that she clearly does not possess.

256 More importantly, it is plain from the opinions of Dr Cohen and Dr Francis that each identifies a significant psychiatric diagnosis for which the plaintiff has been prescribed medication and received counselling (from Ms Moloney).

257 In the case of Dr Cohen, the diagnosis is chronic complex post-traumatic stress disorder and major depressive disorder.[257] In that connection, Dr Cohen points to symptomatology, including 'intrusive re-experiencing phenomena' and mistrust, as well as a 'fear and avoidance of crowds' and 'social isolation'.[258]

258 Dr Cohen also refers to the plaintiff having endeavoured to progress her life by moving from Queensland to Victoria where she has set up home accessing appropriate supports and treatment and says that the plaintiff's 'relationships with family members in Queensland remain conflicted and reportedly exploitative placing her at risk of decompensation'.[259]

259 Dr Cohen thereafter expresses the opinion that it would be detrimental for the plaintiff to travel to and stay in Brisbane or give evidence remotely to a court in Queensland. In that general connection, she particularly emphasises -

(a) the plaintiff's absence of sufficient support in Brisbane;

(b) the risk of exploitation by family members;

(c) her fragility, active symptomatology and need for ongoing treatment;

(d) the likelihood that her condition would be exacerbated should the plaintiff need to give evidence remotely via video link to a court in Queensland; and

(e) the risk of decompensation posed by the plaintiff becoming socially or emotionally isolated.[260]

260 For his part, Dr Francis says that the plaintiff's condition is chronic and also refers to insomnia and says that 'small triggers worsen her mental health'. He expressed the opinion that it will be 'difficult and detrimental for her mental health to travel and stay [in] Brisbane for the trial of her claim'.[261]

261 The position to which I have referred presents as considerably more pointed in light of the opinions of Ms Moloney. In that regard, among other things, she -

(a) refers to her 50 years of experience with families and individuals and, in the last 15 years, experience with First Nations families and communities;

(b) refers to having seen the plaintiff for monthly counselling and support since March 2020;

(c) identifies the plaintiff as having been 'triggered' by her work and particularly in respect of her 'history of removal from family and the subsequent ongoing physical, sexual, and racial abuse she endured';

(d) emphasises 'separation from parents, siblings and community' as relevant to the plaintiff's trauma and that it contributes to a 'loss of sense of security, identity and self-esteem';

(e) later emphasises that the plaintiff was not given an opportunity to reconnect with her mother or father as well as her 'sense of disconnection' and '[d]isconnection with siblings';

(f) refers to the impact of the situation upon the plaintiff's sense of identity and the search for her Aboriginality and culture; and

(g) says that she cannot emphasise enough the extent of support required by the plaintiff on a daily basis as a 'severely traumatised person'.[262]

262 In respect of a transfer of the proceeding to Queensland, Ms Moloney addresses a range of topics, including in respect of the plaintiff's family members. In particular, Ms Moloney emphasises that -

(a) travel back to Queensland would be likely to trigger painful memories for the plaintiff;

(b) the absence of the plaintiff's supports 'could lead to a break down'; and

(c) cultural support for the plaintiff in Queensland could not be simply 'plugged in'.[263]

(a) there seems to me to be little real significance in the plaintiff having earlier lived in Queensland - in that regard, her present psychiatric condition seems to have been triggered since she has been living in Victoria;

(b) since then, the plaintiff has engaged in treatment which has involved grappling with complicated issues of First Nations identity related to her removal from her parents and other family members as well as her subsequent experiences of alleged abuse;

(c) in that connection -

(i) the plaintiff has a diagnosed, significant and chronic psychiatric condition;

(ii) the plaintiff's trauma is complicated by a range of features including feelings of disconnection, fear and avoidance of crowds and social isolation;

(iii) perhaps understandably, the plaintiff's family situation - in which her surviving siblings are also traumatised - presents as likely to be very complicated, unpredictable and potentially distressing; and

(iv) the plaintiff is fragile and her symptoms can be easily triggered and escalate;

(i) the plaintiff has developed a network of medical and other supports in Victoria, including from her dog;

(ii) the plaintiff relies upon that network in order to manage her psychiatric condition and symptoms; and

(iii) I accept that the plaintiff's cultural supports cannot be simply 'plugged in';

(e) most litigants find litigation stressful, particularly litigation of the present kind;

(f) it is practically certain that the plaintiff would need to rely upon her support network when facing and engaging in a trial of the proceeding;

(g) as I have noted, it does not seem very likely that the plaintiff has the ready financial and other resources sufficient to transport her and her support network to Queensland without a risk of undue financial hardship;

(h) the plaintiff wishes to give evidence in person at trial and, inferentially, attend the trial - which I do not consider to be unreasonable;

(i) if the plaintiff were to travel to Queensland in order to attend and give evidence at a trial -

(i) returning to Queensland is likely to be triggering;

(ii) she is likely to be personally disconnected from her regular medical and psychosocial supports; and

(iii) she could well be confronted there with the uncontrolled and distressing interventions and demands of family members (perhaps both inside and outside of the courtroom);

(j) in those circumstances, I accept the various opinions of Dr Francis, Dr Cohen and Ms Moloney to the effect that if the plaintiff's proceeding were transferred to Queensland she could face palpable risks of detrimental effects upon her psychiatric condition including, as the case may be, decomposition or break down;

(k) I would infer that if the plaintiff were to decompensate or break down, the consequences for her psychiatric health could be significant and the consequences for the trial could range from disruption to stultification;

(l) the alternative to travelling to Queensland is that the plaintiff could remain in Victoria and participate in the trial remotely - which, having regard to the plaintiff's preference to attend her trial personally, presents as undesirable and, in any event, unlikely;

(m) in that event, the plaintiff would be remote and disconnected from the physical locus of the trial in circumstances in which her trauma is already complicated by feelings of disconnection and social isolation; and

(n) for those and other reasons, the alternative scenario seems to me to be an exceedingly unlikely one that, in any event, might be capable of sponsoring its own risks of detrimental psychiatric consequences.

264 As I have now emphasised more than once, there is presently no medical or other evidence contrary to the opinions expressed by Dr Cohen, Dr Francis and Ms Moloney.

265 More broadly, in the circumstances to which I have referred -

(a) I consider it to be of no real significance that the present circumstances might be thought to be different to those considered in McCormack - each case in this area necessarily turns on its own facts;

(b) further, as I have endeavoured to explain, the relevant features and risks identified in the reports of Dr Cohen, Dr Francis and, in particular, Ms Moloney, seem to have very real present significance and resonance;

(c) in that context, I do not accept that the plaintiff's concerns about her family if the proceeding were transferred to Queensland are not unusual;

(d) nor do I accept that the nature and quality of the risks posed to the plaintiff's psychiatric health if the proceeding were to be transferred to Queensland should properly be regarded as no more than those which are common to all plaintiffs; and

(e) on the evidence, I accept that a removal of the proceeding to Queensland would pose a significant and unacceptable risk of severely damaging the plaintiff's psychiatric health as well as affecting the otherwise efficient conduct and disposition of the proceeding.

266 It follows that I accept that the risks to which I have referred strongly (and, I would think, decisively) favour the proceeding remaining in Victoria.

267 It will be evident that the simple location of the various parties, solicitors and 'categories' of witnesses is a broadly neutral factor.

268 That said, for a range of reasons, I accept that the defendants and their solicitors are probably more likely to be able to participate effectively in the proceeding if it is heard in the Supreme Court of Victoria than are the plaintiff and her solicitors if the proceeding were to be transferred to the Supreme Court of Queensland.

269 In any event, there are factors that favour transfer of the proceeding to Queensland, particularly that -

(a) it is the place of the alleged torts, which is a significant consideration; and

(b) substantive Queensland law will apply, which I also consider to carry some weight.

270 On the other hand, there are points of substance that strongly, and ultimately decisively, favour the retention of the proceeding in this Court -

(a) the location and other features relating to such witnesses as may presently be identified or otherwise discerned, which is significant;

(b) the availability of a proximate trial date, which is significant; and

(c) the risks posed to the plaintiff's health by reason of a transfer of the proceeding to Queensland, which, ultimately, is decisive.

(a) the interests of justice do not require that the proceeding be transferred to the Supreme Court of Queensland; and

(b) for reasons which I have endeavoured to address in some detail, it is in the interests of justice and therefore more appropriate that the matter proceed to determination in the Supreme Court of Victoria.

272 I have earlier referred to the substance of the arguments advanced in respect of the first defendant's new point.

273 To some extent, the point was said to follow from the plain terms and suggested operation of s 58 of the Judiciary Act. That said -

(a) no counsel could point to any case in the more than 120 years since the enactment of the Judiciary Act that stands directly to confirm the presently suggested operation of s 58; and

(b) in the circumstances, much attention fell upon related provisions of the Constitution and Judiciary Act, as well as certain relevant authorities - particularly, ss 75, 77 and 78 of the Constitution, ss 39(2) and 56 of the Judiciary Act and Breavington, Mewett and BATA.

274 I have earlier extracted the presently relevant provisions in Chapter III of the Constitution. In particular -

(a) section 75 invests the High Court with certain original jurisdiction, including in respect of matters between 'a State and a resident of another State';

(b) section 77 provides that the Commonwealth Parliament may make laws defining the jurisdiction of other federal courts and 'investing any court of a State with federal jurisdiction'; and

(c) section 78 provides that the Commonwealth Parliament may make laws conferring 'rights to proceed' against the Commonwealth or a State in respect of matters within the limits of judicial power.

275 In short, the relevant constitutional provisions -

(a) establish federal jurisdiction;

(b) provide that laws may be made investing federal jurisdiction in State courts; and

(c) in that connection, provide that laws may be made conferring rights to proceed against the Commonwealth or States.

276 In argument, counsel for the first defendant did not take issue with the proposition that a statutory removal of Crown immunity operates to confer a right to proceed.[264] Indeed, in respect of the present issues generally, counsel commended the Hill article, which states that a 'right to proceed is a law removing the government's immunity from suit'.[265]

277 In that context, I have also earlier extracted several presently relevant provisions of the Judiciary Act. In that general connection -

(a) section 39(2) appears in Part VI entitled 'Exclusive and invested jurisdiction' and, relevantly, vests federal jurisdiction in the Courts of the States 'in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it';

(b) sections 56, 58 and 64 appear in Part IX entitled 'Suits by and against the Commonwealth and the States';

(c) section 56(1) is directed to claims against the Commonwealth in contract or in tort and, relevantly, provides that a claim arising in a State or Territory may, in respect of the claim, be brought against the Commonwealth in 'the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory';

(d) section 58 broadly appears to allow a person making any claim against a State in contract or in tort, in respect of a matter in federal jurisdiction, to 'bring a suit against the State in the Supreme Court of the State' or in the High Court; and

(e) section 64 provides that in any suit to which the Commonwealth or a State is a party 'the rights of parties shall as nearly as possible be the same ..., as in a suit between subject and subject'.

278 It is apparent that in the roughly 85 years that elapsed between the enactment of the Judiciary Act and the decision of the High Court in Breavington, the High Court had several occasions to consider the functions of ss 39(2) and 56.

279 Neither of the presently relevant parties delved into the details of that jurisprudence, however it is evident that various different functions have been sought to be ascribed to s 56, including -

(a) impliedly directing the application of the substantive law of the State or Territory in which the claim arose in actions in which the Commonwealth is sued in tort or contract;

(b) rendering the Commonwealth liable to suit in contract and tort (that is to say, conferring a right to proceed); and

(c) being determinative of the courts invested with federal jurisdiction in suits brought against the Commonwealth in contract and in tort.[266]

280 As I have noted, the parties conducted the present argument on the basis that during the same period (and since) there has been no relevant explanation by the High Court of the function of s 58.

281 In any event, by the time that Breavington came to be decided in 1988, it seems to have been determined that the Supreme Courts of the States had been invested with jurisdiction in matters in which the Commonwealth is a party by the combined effect of s 75(iii) of the Constitution and s 39(2) of the Judiciary Act.[267]

282 In that general context, Breavington concerned a claim in respect of injuries suffered by the appellant in a motor vehicle accident in the Northern Territory. One of the defendants resided in Victoria at the time of service of the writ and it was common ground that another defendant, the Australian Telecommunications Commission ('Telecom'), was 'the Commonwealth'.

283 The appellant commenced common law proceedings in the Supreme Court of Victoria. That decision seems to have been influenced by the fact that, in the Northern Territory, statutory provisions significantly restricted the damages that might be able to be recovered.

284 As the Commonwealth was a party, the proceeding was in federal jurisdiction. Telecom, in particular, entered an unconditional appearance.

285 The issue was originally one concerning the proper choice of law, namely whether the appellant's right to recover damages should be determined according to the law of Victoria or the law of the Northern Territory. However, debate in the High Court expanded to embrace the potential effect of s 118 of the Constitution as well as the significance of the presence of Telecom as a party.[268]

286 In connection with the latter issue, it came to be contended that s 56(1) of the Judiciary Act had required that the proceeding be brought in the High Court or the Supreme Court of the Northern Territory.[269]

287 The seven members of the High Court published six separate reasons for judgment.

288 In respect of s 56 of the Judiciary Act, Mason CJ stated as follows -

It is common ground that the Commission is "the Commonwealth" within the meaning of s. 56 of the Judiciary Act 1903 (Cth). This section enables a person making a claim against the Commonwealth, whether in contract or in tort, which arose in a State or Territory, to bring a suit in the High Court or the Supreme Court or other court of competent jurisdiction of that State or Territory. It is not the function of s. 56 to invest jurisdiction in the High Court or the courts of the States in actions against the Commonwealth. That is the function of s. 75(iii) of the Constitution and s. 39(2) of the Judiciary Act: Baume v. The Commonwealth; The Commonwealth v. Evans Deakin Industries Ltd. The presence of s. 56 in Pt IX dealing with "Suits By and Against the Commonwealth and the States" rather than in Pt VI dealing with "Exclusive and Invested Jurisdiction" indicates that the section has a different purpose, as does the language of the provision. What it does is to confer a right to proceed against the Commonwealth in the circumstances mentioned. Whether s. 56 is the source of the Commonwealth's liability in tort, either alone or in conjunction with s. 64 of the Judiciary Act and perhaps s. 75(iii) and s. 78 of the Constitution is a question that I put to one side.

Although, for these reasons, s. 56 does not limit or curtail the investment of jurisdiction achieved by s. 39(2), the effect of s. 56 is to qualify or restrict what may be done in the exercise of that jurisdiction by providing that the right to proceed against the Commonwealth in respect of a claim in contract or tort arising in a Territory is exercisable only in the circumstances mentioned in the section. The Judiciary Act confers no such right in any other circumstances. On this footing s. 56 enabled the Commission to defeat the action on the ground that the appellant had no right to proceed against the Commonwealth in the Supreme Court of Victoria: see The Commonwealth v. Rhind. Whether the absence of such a right to proceed should be raised by way of objection to the jurisdiction or by way of defence is not a question that needs to be decided. The Commission has not taken such an objection, nor pleaded such a defence. Accordingly, the Supreme Court of Victoria had jurisdiction to entertain and determine the claim for relief against the Commission. That jurisdiction was necessarily federal jurisdiction by reason of s. 75(iii) of the Constitution and s. 39(1) and (2) of the Judiciary Act.[270]

289 Wilson and Gaudron JJ delivered a joint judgment. After considering the choice of law points, including the arguments in respect of s 118 of the Constitution, their Honours turned to the question of whether s 56 of the Judiciary Act otherwise entitled the respondents to have the appeal dismissed.[271]

290 In that connection, their Honours considered a submission that, being in permissive terms, s 56 did not preclude the exercise of jurisdiction by the Supreme Court of a State where there had been a submission to jurisdiction and noted that, 'from time to time', various functions had been ascribed to s 56. Their Honours noted that the functions included the suggestion that s 56 rendered the Commonwealth liable to suit in contract and in tort, although it was said that Commonwealth v Evans Deakin Industries Ltd ('Evans Deakin')[272] would 'seem to deny that function to s. 56'.[273]

291 In the course of considering the various suggested functions of s 56, their Honours confirmed that s 39(2) of the Judiciary Act invested the Supreme Courts of the States with the relevant jurisdiction. That said, their Honours considered s 56 to either divest the Courts of the States of that jurisdiction or curtail 'the invocation and exercise of that jurisdiction'.[274] In that context, their Honours stated as follows -

... we are of the opinion that s. 56 does not operate to divest jurisdiction invested in the courts of the States by s. 39(2) of the Judiciary Act. The language of s. 56 is not apt to serve that function. Moreover it is to be found in Pt IX of the Judiciary Act which is entitled "Suits By and Against the Commonwealth and the States" whereas it is Pt VI that, inter alia, defines the limits of the jurisdiction invested in the courts of the States. The two Parts represent the exercise of legislative power referable to different constitutional provisions. Part VI is referable to the power conferred by s. 77 of the Constitution to make laws defining the jurisdiction of federal courts and investing the courts of the States with federal jurisdiction. So far as Pt IX is concerned with proceedings against the Commonwealth and the States it is referable to the power conferred by s. 78 of the Constitution, albeit that s. 78 may not be the sole source of legislative power for all such provisions: see Evans Deakin.

Notwithstanding that s. 56 does not, in our view, effect a divestiture of the jurisdiction invested by s. 39(2) of the Judiciary Act, it does not automatically follow that such jurisdiction is exercisable in the present case in consequence of submission thereto by the Australian Telecommunications Commission. Certainly s. 56 is permissive in terms, but its permissive operation is only to enable a plaintiff to select as between this Court, the Supreme Court of the State or Territory in which the claim arose or another court of competent jurisdiction of that State or Territory. It thus limits the invocation and exercise of the jurisdiction invested by s. 39(2) of the Judiciary Act. The fact that it limits the exercise of jurisdiction invested by s. 39(2), rather than operates to divest such jurisdiction, means that a matter commenced other than in accordance with s. 56 is not coram non judice. ... .

...

It seems to us that s. 56 operates to curtail the invocation and exercise of jurisdiction invested by s. 39(2) of the Judiciary Act in the courts of a State by imposing as a statutory condition precedent to the institution of proceedings that the claim should have arisen in that State. The investiture of jurisdiction in the courts of the States in terms of s. 39(2) of the Judiciary Act impliedly evinces an intention that, in a given case, the condition precedent may be waived by the Commonwealth or by such persons and instrumentalities as fall within the meaning of those words in s. 75(iii) of the Constitution and s. 56 of the Judiciary Act. Indeed it would be a strange situation if the Supreme Court of a State invested with relevant jurisdiction (other than one contemplated by s. 56 of the Judiciary Act) might determine a matter commenced in this Court and remitted pursuant to s. 44 of the Judiciary Act, but was precluded from determining the same matter in other circumstances, notwithstanding the assent of the Commonwealth.

The silence of the Australian Telecommunications Commission after the provisions of s. 56 of the Judiciary Act were drawn to its attention in this Court must be taken as assent to the exercise of jurisdiction by the Supreme Court of Victoria in the present matter. That Court is accordingly properly seized of the matter.[275]

292 Brennan J expressed a different view in respect of the applicable common law choice of law rules, in particular, and later turned to the question whether the fact that claims were made against Telecom had 'any relevant effect on the resolution of this appeal'.[276]

293 In that connection, his Honour referred to Evans Deakin and said that it was not necessary to again consider the 'vexed question' whether s 56 of the Judiciary Act is the source of the Commonwealth's exposure to tortious liability.[277] In that connection, his Honour stated -

But if s. 56 is the source of the Commission's liability in tort, that liability is not contingent on the commencement of proceedings in a court specified by s. 56 of the Judiciary Act, nor is it a liability enforceable only in a specified court. Section 56 is facultative; it authorizes a plaintiff to make his claim in any of the courts therein specified and thus subjects the Commonwealth to the jurisdiction of those courts without its consent. But that is not to say that the Commonwealth's liability cannot be enforced in another court to the jurisdiction of which the Commonwealth chooses to submit. Section 56 is not the source of the jurisdiction to entertain an action brought against the Commonwealth. Jurisdiction to entertain such an action is conferred on State courts by the general grant of jurisdiction contained in s. 39(2) of the Judiciary Act. If a plaintiff seeks to enforce the Commonwealth's liability in a court (not being a s. 56 court) on which jurisdiction is conferred by s. 39(2) and the Commonwealth submits to that jurisdiction (as it has done in this case), there is no inhibition against that court exercising its jurisdiction to hear and determine the claim.[278]

294 Deane J commenced with a discussion concerning the unitary system of law established by the federal compact, which his Honour considered to preclude the application of private international law principles in order to resolve competition between the laws of the Australian States. His Honour considered s 118 of the Constitution to have a relevant operation.

295 His Honour thereafter turned to consider whether s 56 of the Judiciary Act precluded the Supreme Court of Victoria from exercising jurisdiction and stated that he did not consider it to have that effect when Telecom had submitted to the jurisdiction.

296 In that general connection, his Honour stated as follows -

Accepting that Telecom is, for relevant purposes, the Commonwealth, the jurisdiction (Constitution, s. 75(iii)) which was conferred upon the Supreme Court by s. 39(2) of the Judiciary Act. While the relationship between s. 39(2) and s. 56 is not without difficulty, it seems to me that neither s. 56 nor other sections in Pt IX of the Judiciary Act should be construed as intended to deprive State courts of any part of the actual jurisdiction conferred by s. 39(2). There are, however, problems in seeing s. 56 as either conferring some supplementary element of effective jurisdiction or as facultative in the sense of actually enabling the exercise of jurisdiction in that so to see the section would involve either ignoring the confining effect of the words "whether in contract or in tort" in the section or denying the effectiveness of the grant of jurisdiction contained in s. 39(2) in cases where the claim against the Commonwealth was in neither contract nor in tort.

On balance, the preferable view seems to me to be that the provisions of s. 56 are restrictive of the exercise, as distinct from the grant, of jurisdiction in the sense that the effect of the section is, in the class of case to which it refers, to restrict the non-consensual exercise of jurisdiction by a State (or Territory) Court to cases where the cause of action arose within the particular State (or Territory). On that approach, the section does not preclude the exercise of jurisdiction conferred by s. 39(2) in classes of case to which it does not refer (i.e. where the claim is other than "in contract or in tort") or, in the classes of case to which it does refer, if the Commonwealth submits to the exercise of that jurisdiction.[279]

297 Dawson J undertook a review of the authorities concerning the common law choice of law rules in cases of tortious liability and then considered the submissions advanced in respect of s 118 of the Constitution.

298 His Honour then turned to s 56 of the Judiciary Act and noted the controversy with respect to its function. In that context, his Honour referred to s 75(iii) of the Constitution as well as authorities in respect of s 64 of the Judiciary Act and described the area as difficult and 'one upon which it is unwise to enter unless it is necessary to do so'.[280]

299 That said, his Honour thereafter stated as follows -

Section 56 of the Judiciary Act deals specifically with claims against the Commonwealth in contract or in tort and other sections of Pt IX deal with other suits by and against the Commonwealth. But under s. 39 of the Judiciary Act jurisdiction in matters in which the Commonwealth or a person being sued on behalf of the Commonwealth is a party, together with jurisdiction in other matters, is taken from the State courts and revested in them as federal jurisdiction. A comparison between s. 39 and the provisions of Pt IX of the Act, in particular s. 56, fails to yield any conclusion which is completely satisfying. However, it is sufficient if I express the view that, whether s. 56 is the origin of Commonwealth liability in contract or in tort or whether it merely recognizes such liability, it defines (at least so far as State courts are concerned) a jurisdiction in which claims against the Commonwealth in contract and in tort might be pursued. There is no question of the Commonwealth choosing to submit itself to the jurisdiction which the section defines. The section itself subjects the Commonwealth to that jurisdiction and precludes, if the Commonwealth is not otherwise precluded from so doing, any reliance upon Crown immunity when that jurisdiction is invoked. It would be giving insufficient effect to s. 56 to read s. 39(2) of the Judiciary Act as producing the same result, that is to say, to read it as subjecting the Commonwealth to the jurisdiction of the courts of the States in contract or in tort. Section 39(2) is, however, a general section giving jurisdiction to the courts of the States in matters in which the Commonwealth or a person suing on behalf of the Commonwealth is a party. Even if it does not, as I think it does not, subject the Commonwealth to jurisdiction in suits in contract or in tort as does s. 56, there is in my view no reason why the Commonwealth should not in such suits subject itself to the jurisdiction created under s. 39(2) by submitting to it. The creation of liability in contract and in tort by or under the Constitution and the recognition of the Commonwealth by the Constitution as a litigant eo nomine provides, apart from any question of jurisdiction, a sufficient basis for such a submission. Clearly the Commonwealth has submitted to the jurisdiction of the Supreme Court of Victoria in this case.[281]

300 Finally, Toohey J discussed the common law choice of law rules and later considered s 118 of the Constitution before turning to 'the position of Telecom' and s 56 of the Judiciary Act.[282]

301 In that connection, his Honour confirmed that s 56 operated as a submission by the Commonwealth to the jurisdiction of the High Court or a State Court in cases falling within the section, but that the Commonwealth could also submit to such jurisdiction voluntarily. In that regard, his Honour stated -

... Undoubtedly s. 56 does waive that immunity but it does not do so exhaustively; waiver can also be achieved, apart from s. 56, by the Commonwealth subjecting itself to jurisdiction.

Quite apart from authority, the Commonwealth Solicitor-General submitted that as a matter of principle there was no reason why the Commonwealth could not submit just like any other litigant. In my view the Commonwealth can voluntarily submit to jurisdiction. This conclusion does not contradict s. 56. Section 56 simply achieves a statutory waiver of Commonwealth immunity. There is no inconsistency in concluding that over and above this statutory waiver the Commonwealth can, if it wishes, submit like any other litigant. After all, s. 56 does not in its terms state that a plaintiff "shall only sue" in either the High Court or the Supreme Court of the place of the wrong, which it could have stated if it was intended to be an exhaustive provision dealing with waiver of immunity from suit.[283]

302 His Honour thereafter observed that jurisdiction had been conferred upon the Supreme Court of Victoria by s 39(2) of the Judiciary Act and, notwithstanding s 56, the Commonwealth may and had submitted to it.[284]

303 As I have noted, in Breavington, the seven members of the High Court published six separate reasons for judgment. It will be apparent that none of those separate reasons for judgment relevantly adopts, refers to or comments upon any other. Further, more than one member of the High Court highlighted the difficulty posed by the questions raised.[285]

(a) it was confirmed, broadly, that federal jurisdiction is vested in the Courts of the States via s 39(2) of the Judiciary Act;

(b) no member of the High Court identified s 56 as divesting the Courts of the States of any part of the jurisdiction invested by s 39(2) - indeed, Wilson and Gaudron JJ positively said that it did not;[286]

(c) one way or another, Mason CJ, Wilson and Gaudron JJ, and Deane J considered s 56 to limit or qualify the exercise of the jurisdiction invested by s 39(2);[287]

(d) that said, Mason CJ expressly identified s 56 as providing for a right to proceed;[288]

(e) for their part, Wilson and Gaudron JJ stated that -

(i) Part VI of the Judiciary Act (in which, as I have noted, s 39(2) appears) operates to define 'the limits of the jurisdiction invested in the Courts of the States' and is referable to the power conferred by s 77 of the Constitution;

(ii) section 56 appears in Part IX of the Judiciary Act which is 'referable to the power conferred by s. 78 of the Constitution', albeit that it was also said that s 78 is possibly not the 'sole source of legislative power for all such provisions'; and

(iii) section 56 imposes a 'statutory condition precedent to the institution of proceedings'.[289]

(f) no other member of the Court conceived of s 56 as, in terms, imposing a 'statutory condition precedent' to the institution of proceedings;

(g) Deane J preferred the view that s 56 is 'restrictive of the exercise, as distinct from the grant of jurisdiction'[290] (without specifically linking that conclusion to any particular constitutional provision);

(h) the remaining members of the Court expressed other views -

(i) Brennan J described s 56 as 'facultative' and as subjecting the Commonwealth to the jurisdiction of those Courts without its consent - which tends to suggest the conferring of a right to proceed; [291]

(ii) Dawson J considered s 56 to define a jurisdiction 'in which claims against the Commonwealth in contract and in tort might be pursued' (which is suggestive of a link to s 77 of the Constitution); however, his Honour also considered s 56 to preclude 'any reliance upon Crown immunity when that jurisdiction is invoked' (which is suggestive of a link to s 78 of the Constitution);[292] and

(iii) Toohey J considered s 56 to waive the Commonwealth's 'common law immunity from suit' - which suggests a right to proceed;[293]

(i) in broad terms, all members of the Court were of the view that the Commonwealth may nonetheless submit to the jurisdiction;[294] although Wilson and Gaudron JJ expressed a perhaps narrower view based in 'waiver' of a 'statutory condition precedent';[295] and

(j) all members of the Court determined that Telecom had there either submitted to the jurisdiction of the Supreme Court of Victoria or waived its right to object.[296]

(a) while there appears to have been a majority in support of the view that s 56 of the Judiciary Act operates to limit or qualify the exercise of the jurisdiction invested by s 39(2) (Mason CJ, Wilson and Gaudron JJ, and Deane J), the various reasoning is not the same;

(b) in particular, Mason CJ identified s 56 as providing a right to proceed and Wilson and Gaudron JJ considered Part IX (including s 56) to be referable to the power conferred by s 78 of the Constitution (concerning rights to proceed), although their Honours also considered that s 78 'may not be the sole source of legislative power for all such provisions';

(c) Deane J did not speak to the constitutional power pursuant to which s 56 was enacted;

(d) the remaining members of the Court expressed views that linked s 56 to, in substance, rights to proceed and/or s 78 of the Constitution (partly or wholly);

(e) in that connection, all but one member of the Court expressly linked s 56 to s 78 of the Constitution or otherwise described it as 'facultative', operating to remove Crown immunity or providing for a 'right to proceed' (Mason CJ, Wilson and Gaudron JJ, Brennan J, Dawson J and Toohey J); and

(f) the parties presently acknowledged that the substance of the various reasoning of Mason CJ, Wilson and Gaudron JJ, and Deane J to the effect that s 56 operates to limit the exercise of the jurisdiction invested by s 39(2) was necessarily obiter because of the determination, ultimately, by all members of the Court, that the Commonwealth had either submitted to the jurisdiction of the Supreme Court of Victoria or waived its right to object.

306 Subsequently, however, the High Court decided Mewett[297] and BATA.[298]

307 It is presently unnecessary to descend into the circumstances in which each of Mewett and BATA arose, save, perhaps, to say that the precise circumstances were in each case different to those presented in Breavington (or in the present case).

308 I should note that the relevant parts of the reasoning in Mewett and BATA refer to other decisions of the High Court since Breavington, although it was not presently suggested that it was necessary to descend into any particular aspect of those decisions.

309 In that context, in Mewett, Gummow and Kirby JJ detailed the establishment by the Constitution of the judicial power of the Commonwealth and its effect upon doctrines of executive immunity and thereafter stated relevantly as follows -

... the Constitution applies to deny any operation to what otherwise might be doctrines of Crown or executive immunity which might be pleaded in bar to any action to recover judgment for damages in respect of that common law cause of action. The constitutional denial of the operation of any immunity doctrine in respect of matters in which this Court has original jurisdiction under s 75 of the Constitution is carried forward when, under s 77 of the Constitution, the Parliament makes laws with respect to the matters mentioned in s 75, whether to define the jurisdiction of any other federal court or to invest any court of a State with federal jurisdiction. That still leaves much scope for the exercise of the powers conferred upon the Parliament by s 51 (xxxix) in respect of matters "incidental to the execution of any power vested by [the] Constitution ... in the Government of the Commonwealth, or in the Federal Judicature", and by s 78 in respect of the conferral of "rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power". A law which confers jurisdiction with respect to matters arising under a law made by the Parliament (s 76(ii)) may give a new substantive right against the Commonwealth or a State (s 78).

Section 56 of the Judiciary Act recognises, rather than provides the origin of, Commonwealth liability. It does so by identifying the forum in which certain (but not all) actions against the Commonwealth may be instituted. It deals solely with contract and tort and is facultative in nature. If sued in contract or tort, the Commonwealth may submit to the jurisdiction of a court which is invested with federal jurisdiction by s 39(2) of the Judiciary Act, even though that court is not a court specified in s 56. Section 79 prescribes not only the procedural but also the substantive law to be applied in certain exercises of federal jurisdiction.[299]

310 The footnotes relevant to the latter paragraph include various references to Breavington. That said, at least in a general sense, the references to a constitutional denial of doctrines of immunity as well as the highlighted characterisation of s 56 of the Judiciary Act as 'facultative' would appear significant. In respect of the latter, in particular, the relevant footnote refers to the reasoning of Brennan J only, in Breavington, as well as to two earlier High Court authorities.

311 Later, in BATA, a majority of the High Court (McHugh, Gummow and Hayne JJ, with whom Callinan J relevantly agreed) referred to several provisions of the Constitution, as well as the Judiciary Act, and considered the question of the 'conferral of any necessary right to proceed against a State as a party'. In that context, McHugh, Gummow and Hayne JJ stated -

... the question of right to proceed invites attention, in this case, to the Constitution and to federal law, not to the Crown Suits Act. Section 39 of the Judiciary Act, supported as it is by ss 76(i) and 78 of the Constitution, invests jurisdiction in State courts in matters arising under the Constitution or involving its interpretation. It necessarily subjects the States to the exercise of the judicial power thus invested. That is a conclusion which is consistent with, even required by, the text and structure of the Constitution. Historic common law doctrines of Crown immunity which lie behind the enactment of the Crown Suits Act are not relevant to, and do not affect, the conclusion that the State was amenable to the suit which BAT instituted.[300]

312 Their Honours later stated further, as follows -

[59] Section 78 of the Constitution states:

''The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.''

It follows from the judgments of Brennan CJ, Gaudron J, and Gummow and Kirby JJ in The Commonwealth v Mewett and of McHugh J in Austral Pacific Group Ltd (In liq) v Airservices Australia that, in an action against the Commonwealth in contract and tort, it is the common law that provides the source of liability and s 75(iii) denies the operation of what otherwise might be doctrines of Crown or Executive immunity which could be pleaded in bar to that common law cause of action. The result is that a cause of action in tort or contract can be brought against the Commonwealth by virtue of the combined operation of the common law of Australia and the Constitution itself without reference to a federal law based upon s 78 of the Constitution. The same may be said of actions in tort or contract between States or between a State and a resident of another State to which s 75(iv) applies. But the action by BAT does not answer any of the descriptions of "matter" given in s 75(iv).[301]

[60] ... as a matter of necessary implication, the conferring of jurisdiction with respect to matters arising under the Constitution (or involving its interpretation) involves the conferral of any necessary right to proceed against a State as a party in that matter.[302]

313 As I have earlier noted, counsel for the first defendant commended the Hill article as providing a good explanation of the present complexities.[303] In that connection, counsel submitted as follows -

There is ... an explanation by Mr Hill about how before Mewett and British American Tobacco, there was historical support for the idea that it was those provisions [ss 56 and 58 of the Judiciary Act] that confer the right to proceed.

But ... Mr Hill explains why both Mewett and British American Tobacco has dismantled that historical understanding and fixed the right to proceed as having its source in different provisions. So to clarify, the State does not submit that s 58 contains a right to proceed. ...[304]

314 It is correct to describe the Hill article as of assistance (as well as, with respect, detailed and learned). Significant parts of the article are directed to a critique of the approaches in Mewett and BATA as well as advancing suggested responses to the positions described.

315 In that context, Mr Hill describes the 'current approach' of the High Court as tying 'the removal of government immunity from suit in federal cases to the conferral of federal jurisdiction' not, relevantly, to ss 56 and 58 of the Judiciary Act.[305]

316 In that regard, he contrasts the 'current' and 'previous' approaches. In respect of the latter, he states -

Before Mewett and British American Tobacco, the weight of authority suggested that the right to proceed against the Commonwealth or a state in federal jurisdiction derived from provisions in the Judiciary Act. There was, however, some debate as to which was the relevant provision.[306]

317 With particular reference to BATA, Mr Hill states that the Supreme Court of Western Australia had there been invested with federal jurisdiction by s 39(2) of the Judiciary Act and that the joint judgment (McHugh, Gummow and Hayne JJ) had concluded that 'this conferral of federal jurisdiction removed, by necessary implication, a state's immunity from suit'.[307]

... It seems, therefore, that the power conferred by s 78 of the Australian Constitution overlaps at least partially, if not wholly, with the Commonwealth's powers to confer federal jurisdiction.

This approach seems to leave s 78 of the Australian Constitution with no work to do. It is one thing if an apparently broad conferral of power is limited by another provision, of if there is a partial overlap between different constitutional provisions. However, if a right to proceed can be derived from the conferral of federal jurisdiction itself, then s 78 of the Australian Constitution seems to be wholly redundant. It is true that Mewett and British American Tobacco limit this conclusion to the conferral of jurisdiction over matters involving the Commonwealth and over constitutional matters. However, if regard is had only to the Commonwealth's conferral of jurisdiction, there is no basis for distinguishing between the different categories of federal jurisdiction. Section 77 of the Australian Constitution does not draw a distinction in the Commonwealth's power to confer jurisdiction between s 75 matters and s 76 matters, or between s 76(i) matters and s 76(ii) matters. And the same Commonwealth provision - s 39(2) of the Judiciary Act - confers jurisdiction on state courts with respect to these matters.[308]

319 I should note that the suggestion that Mewett and BATA may have made s 78 of the Constitution 'wholly redundant' is one of Mr Hill's criticisms of those decisions.[309]

320 In any event, Mr Hill considers and discusses the consequential functions, if any, of ss 56 and 58 of the Judiciary Act, which includes a discussion of Breavington.[310]

321 Ultimately, Mr Hill summarises the effect of those provisions as follows -

... First, it is clear that these provisions do not prevent the Commonwealth or a state from submitting to the jurisdiction of a court other than those mentioned in ss 56 or 58 (assuming that the court has subject matter jurisdiction). Second, the right to proceed created by ss 56 and 58 may merely duplicate the right to proceed that is already created by the conferral of federal jurisdiction on a court (although there is an argument to the contrary). If the conferral of jurisdiction itself provides a right to proceed, then ss 56 and 58 would not prevent a plaintiff from bringing a contract or tort claim against the Commonwealth or a state in any court with subject matter jurisdiction over the claim.[311]

322 I have earlier referred to the presently relevant submissions of the first defendant. The essential features of that argument may be summarised as follows -

(a) the matter is in federal jurisdiction;

(b) federal jurisdiction is invested in State Courts by a combination of s 75(iv) of the Constitution and s 39(2) of the Judiciary Act;

(c) in the present instance, s 39(2) confers jurisdiction as well as 'any necessary right to proceed';[312]

(d) it follows that s 58 of the Judiciary Act does not confer a right to proceed;[313]

(e) section 58 must have an effect beyond being duplicative of s 39(2);[314]

(f) no authority has considered the effect of s 58 upon the exercise of federal jurisdiction by a State Court;[315]

(g) in that context, Breavington determined that s 56 of the Judiciary Act -

... is ... intended to recognise a jurisdiction that is conferred by another provision, and to curtail or restrict the exercise of that jurisdiction where there's been a non-submission to its exercise.[316]

(h) section 56 is analogous to s 58 and the 'textual and contextual similarities between ... [them] ... strongly suggest that s 58 should be construed as having the same meaning ...';[317]

(i) in that connection -

(i) an interpretation by the High Court of a particular provision is a powerful indicator of the correct interpretation of a provision of the same Act which serves a similar purpose and uses identical or substantially similar language;[318] and

(ii) as 'seriously considered dicta' of a majority of the High Court, Breavington must be followed as it has 'never been contradicted or otherwise questioned by any subsequent judgment of the High Court'.[319]

323 The first three of the above propositions were essentially common ground and may be accepted. The problem, it seems to me, is in the propositions that follow.

324 To state the obvious, the overall situation is an exceptionally curious one. Albeit that s 58 of the Judiciary Act has been in the same form for more than 120 years, no party was able to point to any instance in which the present contention has been raised and determined in the manner suggested by the first defendant.

325 Indeed, in the only identified instances of any such potential contention being raised, the State party expressly submitted to jurisdiction.[320]

326 That said, the institution of tort claims against a State by the resident of another State is far from unusual, certainly in the Supreme Court of Victoria. In a not insignificant proportion of such cases, like in the other limb of the present application, a State party makes an application pursuant to s 5(2) of the Cross-vesting Act seeking a transfer of the proceeding to the Supreme Court of another State or Territory. In such instances, the issue is whether it is in the interests of justice that the proceeding be determined in the other Supreme Court.

327 If it be correct to say that the function of a section such as s 58 of the Judiciary Act is to express the resolve of the Commonwealth Parliament concerning where such proceedings should be issued and perhaps conducted, one wonders why it is that the cross-vesting regime came to be enacted with no apparent modification of such a provision.

328 That is, of course, not to say that s 58 of the Judiciary Act and the statutory scheme of cross-vesting might not be capable of functioning together. However, such a reconciliation would seem to carry with it the patently inefficient requirement that, for example, the present plaintiff should, contrary to the demonstrated interests of justice, bring her proceeding in Queensland and, perhaps at the very same time, make an application to transfer the proceeding to Victoria in order that the interests of justice might be given effect to.

329 I should say that there is a perhaps broader curiosity of which the present situation is a particularly poignant example -

(a) the first defendant does not say that there is any substantive problem in the plaintiff bringing her claim;

(b) in particular, the first defendant acknowledges that s 39(2) of the Judiciary Act gives this Court jurisdiction as well as conferring a right to proceed;

(c) nonetheless, the first defendant contends that s 58 of the Judiciary Act requires that the plaintiff's claim be brought in the Supreme Court of Queensland, in circumstances in which, in the other major limb of this application, the evidence demonstrates that it is in the interests of justice that the proceeding remain in Victoria.

330 That said, the relevant history and relationship between the statutory scheme of cross-vesting and provisions such as s 58 of the Judiciary Act was not explored in any detail in argument. Accordingly, the particular combination of curiosities to which I have referred may be put to one side.

331 As I have indicated, there is no direct authority concerning the suggested function of s 58 of the Judiciary Act. Accordingly, the first defendant placed significant reliance upon Breavington together with the interpretative and other principles to which I have earlier referred.

332 However, Breavington itself demonstrates that the relationship between various provisions of the Judiciary Act has long given rise to difficult questions as well as the positing and discarding of different views over time.

(a) there seems earlier to have been support for the view that s 56 operates to invest jurisdiction in the Courts of the States;

(b) however, almost exactly two years prior to Breavington, in Evans Deakin, Gibbs CJ, Mason, Wilson, Deane and Dawson JJ confirmed that the Supreme Courts of the States are given jurisdiction to entertain a suit in which the Commonwealth is a party by the combined effect of s 39(2) of the Judiciary Act and s 75(iii) of the Constitution; and

(c) unsurprisingly, it came to be broadly confirmed in Breavington that the federal jurisdiction identified in s 75(iii) of the Constitution is invested in the Courts of the States via s 39(2) of the Judiciary Act.[321]

334 Mewett and particularly BATA present as a further and striking example of that to which I have referred.

335 In particular, as counsel for the first defendant essentially put in argument, Mewett and BATA 'dismantled' the earlier 'historical understanding' that affixed the right to proceed 'in different provisions'.[322] However, it will be evident that the so-called 'historical understanding' was at the heart of significant parts of the relevant reasoning and analysis in Breavington.

336 I have earlier referred to the presently relevant parts of the reasoning in Breavington. It will there be evident that much of that reasoning was premised in combinations of the following propositions -

(a) federal jurisdiction is invested in the Courts of the State via s 39(2) of the Judiciary Act;[323] and

(b) in that context -

(i) section 56 of the Judiciary Act confers a right to proceed (Mason CJ);

(ii) section 56 does not define jurisdiction and is referable to at least s 78 of the Constitution (Wilson and Gaudron JJ);

(iii) section 56 is facultative (Brennan J);

(iv) section 56 defines a jurisdiction and precludes any reliance upon Crown immunity (Dawson J); and

(v) section 56 waives Commonwealth immunity (Toohey J).

337 It may be acknowledged that the relevant reasoning of Deane J does not specifically refer to or appear to implicate s 78 of the Constitution, or depend upon any suggestion that s 56 of the Judiciary Act is 'facultative'. That said, his Honour did not specifically link the identified distinction between a grant and exercise of jurisdiction to any particular constitutional source.[324]

338 In any event, it will be evident that two of the above combinations pertain to the reasoning of three of the four members of the majority upon which the first defendant would presently seek to rely, namely Mason CJ, and Wilson and Gaudron JJ.

339 In that connection, while Mason CJ described the effect of s 56 as qualifying or restricting what may be done in the exercise of the jurisdiction invested by s 39(2), his Honour identified that restriction as reposed in a 'right to proceed' and also observed that no such right is conferred by the Judiciary Act in any other circumstances.[325]

340 The latter aspect, in particular, seems fundamentally to have been displaced by Mewett and BATA.

341 For their part, Wilson and Gaudron JJ developed their analysis on a slightly different basis. In particular, their Honours -

(a) disclaimed any suggestion that s 56 could operate to divest the jurisdiction invested in the Court of a State by s 39(2);

(b) identified Part VI of the Judiciary Act (in which s 39(2) appears) as directed to defining the limits of federal jurisdiction invested in the Courts of the States; and

(c) identified Part IX of the Judiciary Act (in which ss 56 and 58 appear) as 'referable to the power conferred by s. 78 of the Constitution' whilst also observing that such provisions may not be the 'sole source of legislative power for all such provisions'.[326]

342 In that context, it is plain enough that their Honours -

(a) did not proceed on the basis that s 39(2) of the Judiciary Act should be taken to invest jurisdiction as well as conferring any rights to proceed; and

(b) considered the link between s 78 of the Constitution (concerning the conferral of rights to proceed), and s 56 of the Judiciary Act, to be at least a relevant step in the analysis that led to the conclusion that s 56 'limits the invocation and exercise of the jurisdiction invested by s. 39(2)'.[327]

343 In short, the historical understanding to which I have referred was -

(a) fundamental to the relevant reasoning of Mason CJ in Breavington;

(b) at least significantly involved in the relevant reasoning of Wilson and Gaudron JJ; and

(c) largely implicit in the reasoning of the other relevant members of the High Court.

344 Nonetheless, counsel for the first defendant submitted as follows -

... Breavington sets out the detailed and considered views of four justices of the High Court as to the meaning and effect of s 56. It has never been contradicted or questioned by any subsequent judgment of the High Court, and, therefore, must be taken by this court to be controlling of the meaning of s 56.[328]

345 It will be evident that while it might be strictly correct to say that Breavington has not been relevantly contradicted or questioned in any subsequent judgment of the High Court, that should not be taken to suggest that subsequent decisions of the High Court do not call into question the correctness of presently relevant aspects of the reasoning in Breavington and therefore its continuing authority.

346 In any event, it was essentially upon the contention that Breavington should be taken to be controlling of the meaning of s 56 of the Judiciary Act that counsel for the first defendant called in aid the interpretative and other principles to which I have earlier referred in support of the proposition that s 58 is analogous and that the provisions should be given a common meaning_._

347 Such principles are, of course, instructions of the High Court that must be applied when applicable and appropriate to do so.

348 Again, it may strictly be considered to be correct to say that the reasoning to which I have referred comprises 'seriously considered dicta' of a majority of the High Court.

349 However, I cannot accept that such a principle should be taken to intend and require that such dicta must presently be followed. In particular -

(a) if that were so, at the very least, an almost mechanical application of the ultimate conclusion of Mason CJ that s 56 of the Judiciary Act qualifies or restricts what may be done in the exercise of federal jurisdiction by the Courts of the States would be compelled, when an essential part of the reasoning upon which that ultimate conclusion rests has since been 'dismantled' by the High Court;

(b) in a broader but nonetheless very real sense, application of the principle would require the Court to leap over or disregard the effect of subsequent High Court authority that has 'dismantled' a premise relevant to significant parts of the foundations of the obiter sought to be embraced.

350 Further, it seems to me to be necessary to give some consideration to the form of the proposition derived by the first defendant from the 'seriously considered dicta' in Breavington which, it was said, the Court must presently follow.

351 In that regard, counsel for the first defendant submitted that s 56 operates to 'curtail or restrict this court in exercise of jurisdiction when a State objects to it'.[329]

352 However, at least inferentially, ss 77 and 78 of the Constitution identify two significant integers to a present exercise of federal jurisdiction, namely the investing of jurisdiction and the conferring of a right to proceed.

353 In that context, the first defendant accepted that since Mewett and BATA it should be taken to be 'well established' that s 39(2) of the Judiciary Act invests the presently relevant jurisdiction as well as conferring 'any necessary right to proceed'.[330]

354 In the circumstances, it seems to me to be at least doubtful that a State could have any proper basis to 'object' to any such exercise of jurisdiction by this Court.

355 For completeness, and unsurprisingly, the circumstances in the cases relied upon as stating the principle to which I have earlier referred were significantly different to the present.[331] To say the least, reasoning in which such a principle is stated is very much a product of its circumstances. It follows that care must be taken not to disconnect the words said to comprise the principle from context and thereafter construe and apply them as if they were the equivalent of a provision in a statute.[332]

356 For much the same reasons, I also cannot accept that the interpretation of s 56 of the Judiciary Act by each of Mason CJ, Wilson and Gaudron JJ, and Deane J in Breavington should presently be taken to stand as a powerful indicator of the correct interpretation of s 58.

357 That brings me to the final, and I tend to think important, part of the argument of the first defendant, that s 58 of the Judiciary Act does not confer a right to proceed and that it must be given an effect beyond being duplicative of s 39(2).

(a) as I have earlier noted, a majority in Breavington might be thought to have characterised s 56 of the Judiciary Act as conferring a right to proceed, at least in part;

(b) it may be acknowledged that the majority in BATA determined that s 39(2) of the Judiciary Act invests jurisdiction and confers any necessary right to proceed;

(c) however, it is not expressly stated by the majority in BATA that ss 56 and 58 do not confer more limited rights to proceed;

(d) indeed, the reasoning of the majority in BATA does not refer to ss 56 and 58 (or Breavington) at all.

359 It is, of course, discomforting to consider that the contemporary understanding of s 39(2) of the Judiciary Act could stand to leave ss 56 and 58 wholly or largely without any present application.[333]

360 In part, that discomfort propelled the contention of the first defendant that such sections should be taken to carry the function identified in argument. However, I have endeavoured to explain why it is that much of the foundation for at least some of those conclusions appear to have since been very severely shaken, if not demolished, by Mewett and BATA.

(a) in argument I asked counsel for the first defendant whether the 'duplication argument' had been considered in Mewett and BATA and was informed that it had (and that counsel thought that it had not been accepted);[334] and

(b) the detailed and learned analysis in the Hill article ultimately summarises the position relevantly as follows: 'ss 56 and 58 may merely duplicate the right to proceed that is already created by the conferral of federal jurisdiction on a court (although there is an argument to the contrary)' and, in that event, 'ss 56 and 58 would not prevent a plaintiff from bringing a contract or tort claim against ... a [S]tate'.[335]

362 In circumstances in which the duplication argument is said to have been raised and considered in connection with Mewett and BATA, it is less obviously the case that I should strain to avoid the discomfort naturally associated with it. Nor do I consider that I am reasonably able to do any better than Mr Hill (or, really, should presently attempt to do so).

363 To my mind, until the present question comes to be determined more authoritatively, I can only conclude that it is most likely that Mewett and BATA have rendered ss 56 and 58 of the Judiciary Act presently inapplicable.

(a) section 58 does not have the effect contended for by the first defendant; and

(b) the contention that the Court should presently decline to exercise its jurisdiction must be rejected.

365 In the circumstances, it is unnecessary to determine the plaintiff's contentions concerning ss 8 and 9 of the Crown Proceedings Act.

366 The present issue was argued among the submissions directed to the wider issue of jurisdiction. That said, it is a discrete issue that arises if my conclusions concerning the wider issue should be wrong.

367 I have earlier referred to the applicable Court rule, several of the relevant events and the substance of the relevant submissions of the first defendant and the plaintiff.

368 As earlier noted, the issue of submission to jurisdiction was determinative in Breavington. In that instance, an unconditional appearance had been filed, Telecom had participated in the substantive proceeding and also, seemingly, remained relevantly silent in the High Court.

369 In that context, as noted, all members of the High Court were of the view that such a party could submit to the jurisdiction,[336] although Wilson and Gaudron JJ expressed a perhaps narrower view based in waiver of a 'statutory condition precedent'.[337] That said, all seven members of the Court determined that, in that instance, Telecom had either submitted to jurisdiction or otherwise waived its right to object.[338]

370 The first defendant submits that the present circumstances are different to those in Breavington and also emphasises the view expressed by Wilson and Gaudron JJ.

(a) the notion of submission to jurisdiction has a lengthy history and is well understood;

(b) every other member of the High Court in Breavington - that is, a majority - simply identified submission to jurisdiction as relevantly sufficient; and

(c) unsurprisingly, no member of the Court indicated that the circumstances there under consideration were the only circumstances in which a party should be taken to have waived or otherwise submitted to jurisdiction.

372 The presently relevant principle is expressed in the authorities referred to and relied upon by the first defendant.[339]

373 In particular, in Lindgran v Lindgran ('Lindgran'),[340] Smith J stated -

Although it is not easy to reconcile all the relevant decisions, the weight of authority appears to me to support the view that, in order to constitute a waiver in a case such as this, there must at least be words or conduct of such a nature that an inference can properly be drawn therefrom that the party alleged to have waived the objection does not intend to rely upon it: ... .[341]

374 As is evident in the decision of Moore J in Robinson v Kuwait Liaison Office, whether or not the necessary inference may be drawn will depend upon the circumstances. In particular, the circumstances of that case indicate that merely prosecuting an objection to jurisdiction, or prosecuting some other minor step anterior to or in combination with such an objection, will not necessarily constitute submission to jurisdiction. Appropriately, courts will look to the substance of the situation.[342]

375 In that connection, Moore J extracted a summary of principles that includes reference to Rein v Stein ('Rein'),[343] which is one of the authorities cited by Smith J in support of the above statement of principle.

... in order to establish a waiver, you must show that the party alleged to have waived his objection has taken some step which is only necessary or only useful if the objection has been actually waived, or if the objection has never been entertained at all. If, for instance, after leave to issue a writ an ordinary appearance is entered, that is a matter which indicates that the defendant either never has entertained the notion or, if he did entertain it, he abandoned it. Such a step would be unnecessary and useless if the intention of insisting on his objection still held good.[344]

377 In short, the necessary inference might be drawn if a party acts specifically to disclaim reliance upon an identified basis for objection. Essentially, that seems to have occurred in Breavington. It certainly occurred in HWC v The Corporation of the Synod of the Diocese of Brisbane & Ors and Armstrong.[345]

378 However, circumstances of that kind will not be the only circumstances sufficient to support the drawing of the necessary inference. In particular, there will be cases in which it may be inferred from the conduct of the relevant party that no objection to jurisdiction has ever been entertained or, if it was, that any objection has since been abandoned.

379 That brings me to the presently relevant rule, which I have earlier extracted but should repeat here for convenience -

(1) A defendant may file a conditional appearance.

(2) A notice of conditional appearance shall be in Form 8B.

(3) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless, on application by the defendant, the Court otherwise orders.

(4) Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed.

380 As will be apparent, even if a conditional appearance is filed, it nonetheless has effect as an unconditional appearance unless, within 14 days, the defendant makes application by summons and the Court subsequently otherwise orders.

381 It seems to me that the time limit of 14 days is significant, in that it is clearly directed to facilitating the early identification of any claimed issue of jurisdiction, service, or other such defect of process.

382 I also note that the structure of r 8.08 is that the Court, ultimately, comes to consider whether it should 'otherwise' order that a conditional appearance not be treated for all purposes as unconditional. Plainly that form of words ('the Court otherwise orders') is apt to repose a discretion in the Court.

383 I should not be thought to be limiting the circumstances in which that discretion might be thought appropriate to be exercised (or not); however, it seems to me to be consistent with the history of such objections and the principles to which I have earlier referred that the Court would not 'otherwise order' if the defendant has acted in a manner that manifests no continuing objection to jurisdiction or, put it another way, that any early notion that such an objection was being taken has since been abandoned.

384 That brings me to the presently relevant circumstances, some of which I outlined at the outset.

385 The first defendant filed its notice of conditional appearance on 13 November 2024. The notice is in Form 8B, which is the form referred to in r 8.08(2).[346]

386 The notice was served under cover of a solicitor's letter, the relevant parts of which I have earlier extracted.[347] In argument, counsel for the first defendant responsibly acknowledged that the letter did not advance any objection of a jurisdictional kind.[348]

387 That said, the first of the bases identified in the letter was the intention of the first defendant to apply to transfer the proceeding to the Supreme Court of Queensland pursuant to s 5(2) of the Cross-vesting Act.

388 I have earlier referred to the reasons of Gleeson CJ, McHugh and Heydon JJ in Schultz. The most relied upon passage in those reasons includes the following sentence -

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.[349]

389 It follows that not only did the letter not identify any question of a jurisdictional kind, the first basis there identified, in fact, stood contrary to any suggestion that the jurisdiction of the Court was not regularly invoked.

(a) on 22 November 2024, the first defendant filed a defence that also did not take any objection of a jurisdictional kind;[350]

(b) on 26 November 2024, the first defendant filed a summons which, consistently with the letter that preceded it, sought relief, relevantly, as follows -

1. An order pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) that the proceeding be transferred from the Supreme Court of Victoria to the Supreme Court of Queensland.

2. In the alternative to order 1, an order pursuant to rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), that this proceeding be temporarily stayed pending the outcome of the Plaintiff's proceeding issued under the Personal Injuries Proceedings Act 2002 (Qld).[351]

(c) on the same day, the solicitor for the first defendant filed an affidavit which referred, relevantly, to only the filing of the notice of conditional appearance as well as the letter.[352]

391 It follows from the above that the first defendant's summons was filed within the time provided by r 8.08(4). However, neither of the points identified in the summons were capable of supporting the notice of conditional appearance filed. Indeed, as I have indicated, the first point proceeded upon the basis that the jurisdiction of the Court had been regularly invoked and, upon that hypothesis, it could not otherwise have been ordered under r 8.08(3).

392 Although it is not presently necessary to determine the question, it seems to me that it is at least arguable that the circumstances to which I have referred could amount to the evincing by the first defendant of an intention, at that time, not to advance any objection of a jurisdictional kind.

393 In any event, timetables of orders seem subsequently to have been made in respect of the first defendant's summons and the proceeding more generally.

394 In respect of the latter, in particular, it is apparent that commencing in February 2025, on behalf of all defendants, the first defendant was seeking to have the plaintiff attend for psychiatric examination. In that email correspondence it was noted that the first defendant's 'transfer summons' had not yet been determined.[353]

395 Shortly thereafter, on 25 February 2025, the first defendant filed its written submissions in respect of the summons.[354] As I have earlier noted -

(a) the submissions did not mention the notice of conditional appearance or advance any argument of a jurisdictional kind;

(b) argument was advanced only in respect of a transfer of the proceeding to the Supreme Court of Queensland pursuant to s 5(2) of the Cross-vesting Act; and

(c) paragraph 2 of the summons - directed to PIPA - was implicitly abandoned.[355]

396 Three days later, on 28 February 2025, the parties appeared before Baker JR. The Orders record that senior counsel appeared on behalf of the first defendant . Among other things, it is recorded in 'other matters' that -

The parties otherwise agreed on a revised timetable for the exchange of material for the first defendant's cross-vesting application. ...

397 In that connection, Order 3, in particular, states as follows -

The first, second and third defendants are to file and serve any written submissions concerning the first defendant's cross vesting application pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) (the 'cross-vesting application') by 4 March 2025.

398 As I have earlier noted, the fourth defendant and plaintiff subsequently (and, in the circumstances, unsurprisingly) filed written submissions directed only to the cross-vesting application.

399 I have earlier referred to Armstrong, in which, on 21 March 2025, Watson J requested submissions in respect of s 58 of the Judiciary Act, and which submissions were subsequently filed on 15 April 2025. I note that two of the counsel appearing for the defendant in Armstrong also appeared for the first defendant in the present application.

400 On the following day, 16 April 2025, the first defendant filed reply submissions in the present proceeding that, for the first time, advanced argument in respect of s 58 of the Judiciary Act.[356] At that time, the first defendant did not propose any amended summons or seek leave to amend the relief sought by summons dated 26 November 2024.

401 As I have earlier noted, much solicitor's correspondence ensued and the application came before the Court on 30 May 2025. On that occasion, among other things, an order was made directing the first defendant to file an amended summons seeking relief by reference to s 58 of the Judiciary Act (which summons was later filed).

402 For completeness, I should say that, at the hearing on 28 July 2025, when I asked about the circumstances to which I have referred, counsel for the first defendant explained that -

(a) the point concerning s 58 of the Judiciary Act was 'not known ... at the point in time at which the transfer application had been raised';[357]

(b) the point had been taken once it was identified;[358] and

(c) the point had become 'known to the State of Queensland' as a consequence of the request made by Watson J in Armstrong.[359]

403 In that general connection, counsel submitted that -

... it would be unfair to proceed on the basis that my client had waived a point of which it was not aware. But having been made aware of the point, my client moved very quickly to raise it in this Court.[360]

404 For reasons which I have earlier sought to explain, I do not consider the first defendant's ignorance of the point concerning s 58 of the Judiciary Act until it was raised by Watson J to be alone dispositive of the present issue. In the circumstances of the present case, the issue is whether, by its conduct prior to that time, the first defendant had abandoned any claimed objection to jurisdiction and thereby already submitted to the jurisdiction of the Court.

405 In that regard, the present circumstances are unlike those in the cases to which I was taken but also, in some respects, striking, in the sense that it involves the actions and plainly stated ignorance of a State party.

406 In any event, it seems to me to be of present significance that -

(a) at the time at which the notice of conditional appearance was filed, the purported justifications for it were no justification at all;

(b) nor were the points taken in the subsequent summons capable of moving the Court to order 'otherwise' in respect of the notice filed;

(c) some months later, the first defendant's written submissions in respect of the summons narrowed the relevant relief sought to 'transfer of proceedings' only;

(d) shortly thereafter, the first defendant appeared before the Court and the consensual position seems to have been that it was only a 'cross-vesting application';

(e) accordingly, by late February 2025, the hypothesis in the only relief being pursued by the first defendant was that the jurisdiction of the Court had been regularly invoked; and

(f) consistently with the apparent position of the first defendant, the fourth defendant and plaintiff subsequently filed written submissions directed only to the 'transfer' or 'cross-vesting' application.

407 In those circumstances, it seems to me that by late February 2025, at the latest, the conduct of the first defendant evinced its intention to abandon any contention that the jurisdiction of the Court had not regularly been invoked. Consequently, by that point at the latest, it had submitted to the jurisdiction of the Court.

408 I should add that while, as I have noted, the first defendant sought to rely upon its ignorance of the point concerning s 58 of the Judiciary Act in the manner described, that fact would seem to me to reinforce the conclusions identified.

409 In particular, if, on 25 or 28 February 2025, the legal representatives of the first defendant had been asked whether there was any suggestion being maintained to the effect that the jurisdiction of the Court had not regularly been invoked, the response could only have been that any such objection was abandoned. After all, at that point, there was no known basis upon which it could have been said that any such objection was subsisting.

410 In any event, nothing in the material to which I have referred suggests that any such clarification was sought and, in my view, none was necessary. At that point, it was plain to the Court, and the parties, that the first defendant did not maintain any contention that the jurisdiction of the Court had not been regularly invoked.

411 For completeness, I should briefly mention the first defendant's brief submissions to the effect that its notice of conditional appearance should be taken to have maintained an objection to jurisdiction 'in a broad sense' and that the subsequent amendment of the first defendant's summons had 'cured' any non-compliance with the Rules.

(a) the authorities on which the first defendant relied in support of its contention that objection had been taken in a 'broad sense' do not support any conclusion that the present notice of conditional appearance and associated summons were apt to take any point that might have been capable of supporting an objection to the jurisdiction of the Court;

(b) in any event, neither submission displaces the fact that, by late February 2025, the first defendant, by its conduct, had abandoned any objection to the Court's jurisdiction; and

(c) in the circumstances, the later raising of the point concerning s 58 of the Judiciary Act could not displace the first defendant's earlier submission to the Court's jurisdiction.

413 It follows that even if my conclusions concerning s 58 of the Judiciary Act are wrong, the first defendant has nonetheless submitted to the jurisdiction of the Court.

(a) the interests of justice do not require that the proceeding be transferred to the Supreme Court of Queensland;

(b) the contention that this Court should decline to exercise its jurisdiction must be rejected; and

(c) in any event, the first defendant has submitted to the jurisdiction of the Court.

415 It follows that the first defendant's amended summons must be dismissed.

416 I will hear the parties concerning the form of orders and issues of costs, including costs reserved in respect of the hearing on 30 May 2025.

THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF ROCKHAMPTON (ABN 50 979 741 889)

[1] Updated Court Book ('UCB') 40 (emphasis added).

[3] UCB 1-3. Cf Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'), r 8.08(4). The Supreme Court (General Civil Procedure) Rules 2025 (Vic) commenced on 8 September 2025, after the hearing in the present proceedings. There is no presently relevant difference between the 2015 and 2025 Rules.

[10] UCB 948-51. At the hearing, it was indicated that the objections could be determined on the papers: T82.

[18] [1988] HCA 40; (1988) 169 CLR 41 ('Breavington').

[19] See generally UCB 880-5 [31]-[41].

[27] Neocli v State of Queensland S ECI 2024 03223; Goostrey v State of Queensland S ECI 2025 02577.

[29] See, in particular, T13-16, 28-30, 46-7.

[30] First defendant's submissions concerning s 58 of the Judiciary Act 1903 (Cth) dated 4 August 2025 ('First defendant's waiver submissions') and plaintiff's submissions in reply on the question of objection to jurisdiction - s 58 of the Judiciary Act 1903 (Cth) dated 11 August 2025 ('Plaintiff's waiver submissions').

[31] BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [14] ('Schultz').

[33] Ibid [63], [77], [99] (Gummow J), [162]-[165], [170] (Kirby J), [177] (Hayne J), [259], [261] (Callinan J).

[34] See UCB 815-6 [10], 830 [7], 865 [109], 868 [130].

[37] [2011] VSC 291, [14] ('Irwin').

[38] Irwin (n 37) [14(g)]. Cf Schultz (n 31) [13].

[44] See Kellow v Irish Murphy's Pty Ltd [2010] VSC 239, [9]; Lloyd v Riverland Regional Health Service Inc [2010] VSC 350; Taylor v Woolworths [2012] VSC 286, [17]; Williams & Ors v TT-Line Company Pty Ltd & Anor [2019] VSC 55; Hackett v State of South Australia [2019] VSC 311, [8].

[45] In particular, Stanford Barton (a pseudonym) v The State of New South Wales [2025] VSC 57 ('Barton'), Tracy v Bishop Edwards [2025] VSC 94, McCormack v State of New South Wales [2025] VSC 214 ('McCormack'); Armstrong (a pseudonym) v State of New South Wales [2025] VSC 270 ('Armstrong'). See also Vernon v Kaefer Integrated Services Pty Ltd & Anor [2023] VSC 667 ('Vernon').

[48] In that regard, the first defendant referred to Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [134] ('Farah Constructions'); Hill v Zuda Pty Ltd [2022] HCA 21; (2021) 275 CLR 24, [25] ('Hill v Zuda'); Price v Spoor [2021] HCA 20; (2021) 270 CLR 450, [17]-[18] ('Price').

[49] (1997) 191 CLR 471 ('Mewett').

[50] [2003] HCA 47; (2003) 217 CLR 30 ('BATA').

[52] (2006) MULR 716 ('Hill article').

[53] First defendant's waiver submissions (n 30) [5].

[55] First defendant's waiver submissions (n 30) [11]-[15]; T15, 46-7. Cf Robinson v Kuwait Liaison Office (1997) 145 ALR 68 ('Robinson'); United Group Resources Pty Ltd v Calabro (No 4) [2010] FCA 791 ('United Group (No 4)').

[56] First defendant's waiver submissions (n 30) [16]. Cf Hunt v Molk [1905] ArgusLawRp 57; (1976) 11 ALR 288.

[57] Plaintiff's waiver submissions (n 30) [10].

[58] As distinct from the affidavit material directed to the late raising of the first defendant's new point and subsequent issue of costs, particularly the affidavit of Matthew Glen Edwards affirmed 28 May 2025 (UCB 54-288), the affidavit of Sara Kaurin affirmed 29 May 2025 (UCB 952-1102), the second affidavit of Matthew Glen Edwards affirmed 21 July 2025 (UCB 1132-1158), the affidavit of Stephen Crofton Uniacke sworn 17 July 2025 (UCB 1159-1167) and the affidavit of Jodie Harris affirmed 23 July 2025 (UCB 1168-335).

[62] See, in particular, UCB 722-24, 789-94.

[83] UCB 333. I note that Ms Moloney's report identifies an address in Richmond: UCB 326.

[92] Mr Uniacke, solicitor for the fourth defendant, deposed to the defendants having arranged, or sought to arrange, a medico-legal examination of the plaintiff by Dr Jon Steinberg, psychiatrist, of Brisbane: UCB 797 [7]-[11]. No report of Dr Steinberg was exhibited to any of the various affidavits. That said, in argument, senior counsel for the fourth defendant informed the Court that the plaintiff had attended a medico-legal assessment on behalf of the defendants the previous week and that the defendants were awaiting the report: T89.

[104] See generally UCB 813-46, 872-80.

[106] Oral submissions in respect of the issue of transfer were made by A Woods KC as senior counsel for the first defendant.

[111] T69, 103-4. Cf Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ('Cross-vesting Act'), s 11(3).

[127] T78. I do not regard the issue of mode of trial to be of any present significance and it is likely irrelevant. Accordingly, the issue will be put to one side.

[128] T78-81: McCormack (n 45); Barton (n 45); Armstrong (n 45).

[136] Oral submissions in respect of the issue of transfer were made by JP Brett KC as senior counsel for the plaintiff.

[147] Oral submissions in respect of the issue of jurisdiction were made by R Chaile as counsel for the first defendant.

[154] T10-11. Cf Federal Commissioner of Taxation v Australian Business Systems Pty Ltd [2015] HCA 48; (2015) 257 CLR 544, [27].

[157] T29: Armstrong (n 45) [6]-[9].

[158] T19. Cf Mewett (n 49); BATA (n 50); Hill article (n 52).

[162] T25-7: Farah Constructions (n 48); Hill v Zuda (n 48) [25]; Price (n 48) [17]-[18].

[164] UCB 1123 (footnote 4) (emphasis added).

[165] Oral submissions in respect of the issue of jurisdiction were made by LT Brown SC as senior counsel for the plaintiff.

[171] T46-7. In that connection, counsel referred to Robinson (n 55) 75; United Group (No 4) (n 55) [48].

[181] UCB 289 [1], 293 [21], [23]-[25], 300-4 [46]-[57]. See also UCB 720 [39(e)].

[182] UCB 13 [28], 15 [34], [36]-[38].

[185] UCB 713 [1], 721-2 [46]-[47]. See also UCB 797-8 [12]-[13]. I note that it is said that the fourth defendant may call evidence in relation to the third defendant and that any such witnesses are similarly anticipated to be 'likely to reside in Queensland': UCB 722 [48].

[187] Cf T99. The solicitor for the fourth defendant deposed that he attended Court on 30 May 2025: UCB 1162 [18].

[190] While I say nothing about any other case, I do not mean to say it should presently have been anticipated that it could be necessary for evidence to be given concerning the precise terms of the retainer. That is a topic which can carry complexity.

[191] See, in particular, UCB 298-9 [37]-[45], 382-441, 462-506.

[192] Amended writ and statement of claim dated 22 January 2025, [7], [13], [15]-[17] ('Amended writ and statement of claim').

[195] UCB 13-15 [30]-[33], 721 [45].

[203] UCB 797 [7]-[11]. See footnote 92.

[212] In that regard, of course, I have noted that the solicitor for the second defendant has seemingly not spoken with any of named sisters: UCB 711 [21]. In respect of the fourth defendant, the solicitor deposes to being 'aware' of Monsignor Grace, Fr Gilbert and Fr Hanifan, but it is not said that the solicitor has actually spoken with any of them and a natural reading of the affidavit would suggest that it is more likely that he has not: UCB 797 [12].

[215] In that regard, I would contrast the present approach with that seemingly taken in Irwin (n 37) in relation to the witnesses likely to be called and in respect of what issues. See, in particular, [2], [18]-[19].

[225] UCB 30. Which, I might say, is a point emphasised by the defendants as the plaintiff's sister is identified in the notice of claim as residing in Queensland.

[231] See, in particular, UCB 292-3 [19]-[23], 298-9 [37]-[45].

[232] See, in particular, UCB 459-506.

[238] UCB 784-5 [10], [18]. Cf UCB 791 [14(i)].

[239] UCB 723. I should note that, in argument, senior counsel for the first defendant posited 'PIPA' as a distinct factor relevant to the statutory question: see, T57-8, 66-70. However, it was clear enough that the submissions in respect of 'PIPA' were relevant to what would or might occur if the proceeding were transferred to the Supreme Court of Queensland as well as what was otherwise described in argument as 'the convenience of the parties'.

[245] UCB 743-9. In that regard, of course, I take account of the various sub-parts to the questions posed.

[248] In that regard, senior counsel for the fourth defendant said that compliance with 'division 1' and 'division 2' would be waived. The requirement for a compulsory conference, as well as a complying Notice of Claim, seem to be in Division 4.

[266] See generally Breavington (n 18) 100-3.

[267] Cf Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254 ('Evans Deakin')

[270] Breavington (n 18) 68-9 (Footnotes omitted).

[275] Breavington (n 18) 104-106 (Footnotes omitted).

[285] Breavington (n 18) 117 (Brennan J: 'the vexed question'), 139 (Deane J: 'not without difficulty'), 152 (Dawson J: 'a difficult area and one upon which it is unwise to enter unless it is necessary to do so' and 'fails to yield any conclusion which is completely satisfying').

[287] Ibid 69 (Mason CJ: 'the effect of s. 56 is to qualify and restrict what may be done in the exercise of that jurisdiction'), 104 (Wilson and Gaudron JJ: 'it limits the exercise of jurisdiction invested by s. 39(2)'), 140 (Deane J: 'the preferable view seems to me to be that the provisions of s 56 are restrictive of the exercise, as distinct from the grant, of jurisdiction').

[294] Ibid 69 (Mason CJ), 118 (Brennan J), 140 (Deane J), 153 (Dawson J), 169 (Toohey J).

[296] Ibid 69 (Mason CJ), 106 (Wilson and Gaudron JJ), 118 (Brennan J), 139 (Deane J), 153 (Dawson J), 169 (Toohey J).

[299] Mewett (n 49) 551 (Footnotes omitted; emphasis added).

[302] See also BATA (n 50) [57], [67].

[318] T10-11: Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48; (2015) 257 CLR 544, [27].

[319] T25-27: Hill v Zuda (n 48), [25]. Cf Price (n 48), [18].

[320] HWC v The Corporation of the Synod of the Diocese of Brisbane & Ors [2008] QSC 212; (2008) 220 FLR 92, [28] ('HWC'); Armstrong (n 45) [6]-[9].

[321] Breavington (n 18) 68 (Mason CJ), 102 (Wilson and Gaudron JJ), 118 (Brennan J), 139 (Deane J), 152 (Dawson J), 169 (Toohey J).

[323] Breavington (n 18) 68 (Mason CJ), 102 (Wilson and Gaudron JJ), 118 (Brennan J), 139 (Deane J), 152 (Dawson J), 169 (Toohey J).

[329] T51 (Emphasis added). See also T24: 's 56 is simply intended to recognise a jurisdiction that is conferred by another provision, and to curtail or restrict the exercise of that jurisdiction where there's been a non-submission to its exercise'.

[331] Farah (n 48); Hill v Zuda (n 48); Price (n 48).

[332] Cf Re Queensland Electricity Commission and Others; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1, 6.

[333] In that general connection, the authorities relied upon by the first defendant included Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355.

[336] Breavington (n 18) 69 (Mason CJ), 118 (Brennan J), 140 (Deane J), 153 (Dawson J), 169 (Toohey J).

[338] Ibid 69 (Mason CJ), 106 (Wilson and Gaudron JJ), 118 (Brennan J), 139 (Deane J), 153 (Dawson J), 169 (Toohey J).

[339] See Robinson (n 55) 75; United Group Resources (n 55) [48].

[340] [1955] VicLawRp 81; [1956] VLR 215 ('Lindgran').

[342] Robinson (n 55) 75-7. See also, eg, Harris v Taylor [1915] 2 KB 580.

[343] [1891] UKLawRpKQB 203; (1892) 66 LT 469 ('Rein').

[345] HWC (n 320) [28]; Armstrong (n 45) [6]-[9].

[349] Schultz (n 31) [14]. See also [72] (Gummow J), [168] (Kirby J), [177] (Hayne J).

[355] UCB 828 [56]: '... the first defendant respectfully submits that the orders sought in paragraphs 1, 3 and 4 of the Summons should be made'.