Plaintiff v First DefendantSecond Defendant

2 By summons filed 19 February 2013, the second defendant seeks an order, pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987, transferring this proceeding to the Supreme Court of New South Wales. Section 5(2) relevantly provides:**

(a) A proceeding (in this sub-section referred to as the `relevant proceeding') is pending in the Supreme Court (in this sub-section referred to as the `first court'); and

(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."

3 In Irwin v State of Queensland,[1] Robson J helpfully summarised the relevant principles as follows:

"(a) The Act requires that the [first] court should exercise the power of transfer whenever "it appears" that it is in the interests of justice that it should be exercised.[2]

(b) It is not necessary that it should appear that the first court is a "clearly inappropriate" forum.[3] It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.[4]

(c) The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.[5]

(d) The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.[6]

(e) The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.[7]

(f) It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.[8] Rather the jurisdiction must be exercised when "it appears" to the court that "it is in the interests of justice" that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued.[9] Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.

(g) The court should adopt what has been described as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.[10]

(h) The appropriate court is the natural forum as determined by connecting factors to that forum.[11]

(i) Relevant connecting factors include matters of convenience and expense[12] such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.[13]

(j) In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.[14]

(k) If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.[15]

(l) Factors which may be relevant to a tortious action are:[16]

(i) The place where the wrong occurred.

(ii) Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.

(iii) The convenience of the parties and witnesses. However in this day and age this factor may not carry substantial weight because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because the provision of evidence by audio visual link.

(iv) The law governing the proceeding.

(v) The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with a particular evidentiary and procedural rules hearing particular types of cases.

(vi) The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.[17]

(m) As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort.[18] Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.[19]

(n) A relevant factor is whether the coincidence of the lex fori[20] and the lex loci delicti[21] will avoid debates concerning substantive and procedural law.[22]

(o) The plaintiff's choice of forum by itself is not a relevant connecting factor.[23]

(p) Each case depends on its own particular facts.[24]

(q) The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.[25]"[26]

**4 The second defendant's application is supported by an affidavit of Peter Norman Simpson, a solicitor who practices in Albury. The affidavit notes that the addresses of both defendants are in Albury, and that the only connexion with Victoria is that the plaintiff resides in Wodonga. It is then deposed that the travel time by car from the plaintiff's address in Wodonga to the court in Albury "would be about ten minutes at any time of the day".

5 The affidavit goes on to state that in the event the proceeding is transferred to the Supreme Court of New South Wales, "[i]t is anticipated that the second defendant would then make an application to transfer the proceeding to the District Court of New South Wales sitting at Albury"; alternatively it is said that "[t]he Supreme Court [of NSW] while not having regular civil sittings in Albury has always offered to come on circuit as required".

6 While Wodonga is very close to Albury, the affidavit speculates that it is possible that if the proceeding remains in the Supreme Court of Victoria at Wodonga, it might in fact be heard in Wangaratta or Shepparton. It is then asserted that while Mr Simpson is "not privy to which experts will be retained", he expects that experts will be retained from "one of our capital cities". Reference is then made to the fact that there are regular daily commercial flights from Sydney and Melbourne to Albury, and the difficulty that might be encountered in having to hire a car to travel to Shepparton or Wangaratta in the event the proceeding is not heard in Wodonga.[27]

7 The balance of Mr Simpson's affidavit deals with issues of applicable law, procedure and costs. It is asserted that while the Civil Liability Act 2002 (NSW) would apply to the proceeding if it was heard in New South Wales, in Victoria there may be an issue as to what provisions of that Act and what provisions of the Wrongs Act 1958 (Vic) have application. Mr Simpson deposes:**

"That inquiry requires the court to determine what provisions of each Act are substantive and what are procedural. For example, provisions in relation to the calculation of damages are often said to be procedural while the entitlement to a head of damage is often said to be substantive. Without examining that issue further, what is clear is that by transferring these proceedings to New South Wales it will avoid the need for this inquiry because no aspect of the Victorian law would need to be applied to this claim."

8 I reject this submission: it involves a misunderstanding of the High Court's decision in John Pfeiffer Pty Ltd v Rogerson.[28] As was correctly conceded by counsel for the second defendant this morning, any provision that affects the existence, extent or enforceability of a right is, on its face, concerned with issues of substance, not with issues of procedure.[29] Indeed, as the plurality[30] said:[31]

"... all questions about the kinds of damage, or amount of damages that may be recovered ... [are to be] treated as substantive issues governed by the lex loci delicti." (emphasis in original)

9 On the question of costs, Mr Simpson deposes:

"It is sometimes argued that the party/party costs recovery is better for plaintiffs conduction cases (sic) in Victoria compared to plaintiffs conduction cases (sic) in New South Wales. For example, costs are restricted for personal injury claims under $100,000 in New South Wales. See section 228 Legal Profession Act 2004. If damages are assessed in this matter for less than that amount then it is likely the plaintiff will benefit more from a costs award than if the proceedings were determined in New South Wales."

**10 Like other parts of Mr Simpson's affidavit, the admissibility of some of this passage is debatable. Nevertheless, the question of whether the plaintiff might recover more or less costs in Victoria than in New South Wales is, at this stage, a matter of high speculation.

11 Bearing in mind the principles to which I have referred and all of the matters in Mr Simpson's affidavit, it has not been made appear to me that it is in the interests of justice to transfer this proceeding to the Supreme Court of New South Wales.

12 The second defendant's application must be dismissed.**

[1] [2011] VSC 291 [14].

[2] Schultz at [14] per Gleeson CJ, McHugh and Heydon JJ and at [17] per Gummow J (with whom Hayne J agreed); and Ewins [16].

[3] The reference to a "clearly inappropriate" forum is the test adopted by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 that should be applied in an application to stay a proceedings on the grounds of forum non conveniens. In Schultz at [7]-[11] Gleeson CJ, McHugh and Heydon JJ distinguish between the test to be applied in such an application and the test that should be applied in an application under the Jurisdiction of Courts (Cross-vesting) Act 1987.

[5] Schultz at [14] per Gleeson CJ, McHugh and Heydon JJ when distinguishing between an application for a stay on the ground of forum non conveniens and an application under the Act.

[6] Schultz at [15] per Gleeson CJ, McHugh and Heydon JJ.

[7] Schultz at [62]-[63] per Gummow J (with whom Hayne J agreed); Ewins at [17].

[8] Schultz at [71] per Gummow J (with whom Hayne J agreed).

[9] Schultz at [71] per Gummow J (with whom Hayne J agreed); Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Rogers AJA at 727 (Bankinvest). In Ewins at [23] Gillard J held that although persuasive it was not adopted by the majority of the High Court. He said he was not prepared to accept that it represents the law.

Dodds-Streeton J in McLeod v Munro [2005] VSC 375 at [37] disagreed with the view that the applicant may bear some burden. Dodds-Street J found the observations of Gummow J in Schultz to be "highly persuasive." So to did Whelan J in Slater & Gordon at [21] and Harper J in Holt at [14].

Accordingly, in the absence of binding authority to the contrary, I should follow the observations of Gummow J with whom Hayne J agreed.

Harper J accepted In Holt at [14] that he agreed with Gummow J that it is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. He held, however, that an applicant bore some burden as unless the court decides it is in the interests of justice that the proceedings be determined elsewhere, the proceeding will stay where it is.

In Eden Kaye J observed that by reason of theses cases the law in Victoria on the onus of proof or onus of persuasion is unsettled. He pointed out that it is the applicant who seeks to persuade the court that it is otherwise in the interests of justice that the second court determine the case. He said "to that extent an "onus" of persuasion falls on the applicant. (Eden at [12]).

[10] Bankinvest at 714 per Street CJ; approved in Schultz at [13] per Gleeson CJ, McHugh and Heydon JJ

[11] Schultz at [10] per Gleeson CJ, McHugh and Heydon JJ; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 the House of Lords (Spiliada); Ewins at [31].

[12] Preamble to the Act "Whereas inconvenience and expense have..".

[13] Schultz at [18]-[19] per Gleeson CJ, McHugh and Heydon JJ.

[14] Schultz at [19] per Gleeson CJ, McHugh and Heydon JJ.

[19] James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 557 (James Hardie) at 361 per Spigelman CJ.

[22] Schultz at 262 per Gummow J (with whom Hayne J agreed).

[23] Schultz; Ewins at [12]. Gummow J said at [77] in Schultz "The phrase "otherwise in the interests of justice" in sub para (iii) of s 5(2)(b) of the Cross-vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff."

[27] One is reminded of the judgment of Kent, District Judge in Smith v Colonial Penn Insurance Company 943 F. Supp 782 wherein his Honour, in rejecting an application to transfer a proceeding from Galveston to Houston, said (at p784):

"Defendant should be assured that it is not embarking on a three week long trip via covered wagons when it travels to Galveston. Rather, defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this court's predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavoury kind."

[28] [2000] HCA 36; (2000) 203 CLR 503.

[29] Ibid [99] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[30] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

[31] [2000] HCA 36; (2000) 203 CLR 503, 544 [100].