Plaintiffs v Defendants

2 The plaintiffs are Mr Williams and his wife Rebecca, who together owned seven of the horses. The third plaintiff, Twynam Agricultural Group Pty Ltd ('Twynam') is the owner of six of the horses. The fourth plaintiff, Willo Polo Pty Ltd ('Willo') was the operator of a polo based business. Mr Williams is a director of Willo and was engaged by Twynam as its Horse Complex Manager in Richmond, New South Wales, and was the manager of all of the horses. Mr and Mrs Williams assert that the death of the horses has wiped out a substantial part of their livelihood, as not only have they lost the horses, but Willo, which Mr Williams controls, has lost its business.

3 As noted above, TT-Line is the operator of the Spirit of Tasmania. The second defendant, Qube Ports Pty Ltd ("Qube") provide freight services for the Spirit of Tasmania for TT-Line.

4 In their amended statement of claim filed on 25 September 2018 (the proceeding having commenced on 24 August 2018), the plaintiffs allege, as against TT-Line, that it had breached the terms of its agreement with Mr Williams to transport the horses from Victoria to Tasmania and back again, and breached the Australian Consumer Law. Alternatively, both TT-Line and Qube were negligent, and their negligence caused or contributed to the horses' death. The particulars of negligence alleged that both TTLine and Qube were negligent by:

(a) failing to provide a safe environment for the horses;

(b) failing to have any or any adequate inspection routine for the horses prior to accepting them on board the ferry;

(c) failing to have any or any adequate inspection routine for the horses whilst in transit;

(d) failing to have any or any adequate monitoring systems for the horses whilst in transit;

(e) failing to have any or any adequate air ventilation integrity system for the horses; and

(f) failing to have any or any adequate system of monitoring the horses air quality whilst in transit.

5 Both TT-Line and Qube filed their defences in October 2018. No further steps have been taken in the proceeding. On 5 December 2018, following correspondence between the parties, TT-Line filed and served a summons seeking orders that the proceeding be transferred to the Supreme Court of Tasmania pursuant to s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ('Act'). The application is opposed by the plaintiffs and by Qube.

6 Section 5(2)(b)(ii) of the Act provides as follows:

(2) Where:

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

(b) it appears to the first court that:

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

(ii) having regard to:

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

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

(C) the interests of justice;

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

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

7 In Sedman & Associates Pty Ltd v Morgan Stanley Wealth Management Australia Pty Ltd,[1] ('Sedman') I briefly summarised the principles applicable to applications for transfer under the Act, as follows (citations omitted):

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

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

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

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

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

(f) similarly, the residence of the defendant, while it may be the foundation for jurisdiction, is not necessarily decisive as to which is the most appropriate forum.[2]

8 In the current application, the parties also relied upon the decision of Robson J in Irwin v State of Queensland,[3] where his Honour provided a detailed summary of the principles arising out of the decision of the High Court in BHP Billiton Ltd v Shulz,[4] including the following (citations omitted):

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

(i) The place where the wrong occurred.

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

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

(iv) The law governing the proceeding.

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

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

(m) As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort. Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.[5]

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

... matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.[6]

10 TT-Line relied upon the following affidavits in support of its application:

(a) an affidavit sworn by Mr Kevin Maynard, the company secretary of TT-Line, on 29 November 2018 ("first Maynard affidavit");

(b) an affidavit sworn by Mr Maynard on 25 January 2019 ("second Maynard affidavit"); and

(c) an affidavit sworn by Mrs Kate Causon, the solicitor for TT-Line, on 25 January 2019.

11 The plaintiffs relied upon an affidavit sworn by their solicitor, Mr Shane Ryan, on 18 January 2019.

12 Qube relied upon an affidavit affirmed by its general manager, Mr Patrick Smith, on 17 January 2019 and an affidavit sworn by its solicitor, Mr Andrew Tulloch on 31 January 2019.

13 In the first Maynard affidavit, Mr Maynard deposed as to searches conducted by TTLine's solicitors, which show that the principal places of business of Twynam and Willo are Sydney and Richmond, New South Wales, respectively. The registered office and principal place of business of TT-Line is Devonport, Tasmania, and the registered office and principal place of business of Qube is in Sydney. Its ships are registered in Devonport.

14 Mr Maynard deposed that TT-Line alleges that there was a contract of carriage between it and Barnbougle Golf Club Pty Ltd ('Barnbougle'), which hosted a polo tournament that the horses attended in January 2018. He exhibited the documents said to constitute the contract, being:

(a) the Barnbougle Polo 2017 and 2018 sponsorship memorandum of understanding;

(b) TT-Line's terms and conditions of carriage of freight ('General Conditions');

(c) TT-Line's conditions of carriage for horses in horse trucks, horse trailers, and horse floats; and

(d) TT-Line's general conditions of carriage.

15 The booking for the transport of the horses was made by Ms Penelope Jattler of Barnbougle on 29 August 2017. The horses were transported in a truck (which was registered in New South Wales) driven by Mr Williams. Mr Maynard exhibited the consignment notice signed by Mr Williams.

16 Mr Maynard identified fifteen of TT-Line's employees who participated in the sequence of events which are the subject of this proceeding, who may be potential witnesses. Of this group, eleven employees live in Tasmania. Mr Maynard deposed that TT-Line has engaged Tasmanian solicitors and counsel to represent it in this proceeding, who are based in Hobart.

17 On 18 January 2019, Mr Shane Ryan, the solicitor for the plaintiffs, swore an affidavit in opposition to the application. Given the particular grounds of opposition to this application, and the criticisms made of this evidence made at the hearing of the application, Mr Ryan's evidence is reproduced in full below:

The first Plaintiff, Mr. Andrew Williams ("Andrew"), has been a professional polo player for many years. He has been rated as high as five goals and now plays off a four goal handicap, which means that he is a very good polo player. He has represented Australia in test matches and in the World Cup and has regularly played in high level polo. Andrew and his wife Rebecca ("the second Plaintiff') owned in partnership, seven of the sixteen horses that died on 29 January 2018, the deaths of which are the subject of this proceeding. Andrew has been engaged as the Horse Complex Manager for the third Plaintiff, he is a Director of the fourth Plaintiff and is married to the second Plaintiff.

The second Plaintiff, Rebecca Williams, is married to Andrew, the first Plaintiff, and owned in partnership with her husband, seven of the polo horses that died and are the subject matter of this proceeding.

The third Plaintiff was the owner of six of the horses that died in the incident that is the subject of this proceeding, and engaged Andrew to be the Manager of those horses.

The fourth Plaintiff was the company that Andrew and his wife used to operate a business offering polo management, coaching and lessons as well as polo exhibition services to the public. The fourth Plaintiff relied upon the third Plaintiffs horses as well as those horses owned by Andrew and the second Plaintiff to derive income.

On or about 10 December 2017 the Plaintiffs and/or their servants or agents drove a horse float containing 21 horses on to one of the first Defendant's ferries which was berthed at Melbourne. The ferry was bound for Davenport in Tasmania.

On or about 15 January 2018 the Plaintiffs servants and/or agents drove a horse float containing 12 horses on to a ferry owned and/or operated by the first Defendant which was also bound for Davenport in Tasmania.

Andrew has instructed me that it was always intended and understood by him, that the subject travel on the ferries on these days was just the first part of a two-part journey. The Plaintiffs always intended to bring the subject horses back to the mainland on the first Defendant's ferries.

At no time did the Plaintiffs ever consider that there was any possibility that any of the horses were being transported to Tasmania as a one way trip only.

The fourth Plaintiff used the horses that died in the subject incident to derive income. Andrew rode the horses that died in the subject incident to derive income in his polo playing exhibition and coaching business.

Andrew instructs me that most polo horses are specifically bred. Polo horses are trained over a number of years and it is not possible to simply obtain "any other horse" and get it to play polo. The death of the subject horses has had a detrimental impact on his, his wife's and their companies' income and significantly hampered their ability to provide for their three children.

Andrew has told me that the effect of the death of the subject horses has had on the fourth Plaintiff is that he considers that the fourth Plaintiff no longer has any viable commercial operations going forward and as such he had asked his accountant to look at closing the company. I advised him that if he closed the company, he would no longer be able to continue the proceeding on its behalf, and as such, Andrew told me that it is only continuing to exist for the purpose of the subject litigation as the death of the horses has meant that it has no ability to produce income as it once did.

Andrew instructs me that the death of the subject horses means that he is no longer able to earn that income and as such, his only source of income now is what he earns from the fourth Plaintiff working as its Horse Complex Manager.

Andrew instructs that he earns $90,000.00, plus superannuation, per year as the Complex Manager.

When Andrew and Rebecca approached me to act for them and their company in this matter in or about February 2018, I advised them that in my 30 plus years of Supreme Court litigation experience, that a case such as this would cost at least $100,000.00 to mediation. In my experience, preparation for a trial and a full trial would cost at least a further $200,000.00

Andrew and his wife Rebecca told me that neither of them nor their company 'Willo Polo' had the ability to fund this litigation. I told them that although it is common practice for me and my firm to act for Plaintiffs in personal injury matters on a "No Win - No Fee" type contingent basis, that it was not my usual practice to act in commercial matters with such a fee agreement. After much discussion however, in the circumstances, I was willing to take on their matter on a "No Win - No Fee" basis. I have since been engaged on this basis.

I then set about the process of engaging competent Counsel who would be willing to take on this commercial matter on a similar "No Win - No Fee" type basis. On behalf of the Plaintiffs I was able to secure the services of Mr. Chris Winneke QC and Mr. Michael Seelig, both of Counsel to act for the Plaintiffs on a similar "No Win - No Fee" type agreement.

The "No Win - No Fee" cost agreement relates to my firm and Counsel acting for all of the Plaintiffs

The firm has not engaged in litigation in Tasmania and would not do so on a "No Win - No Fee" basis if the proceeding was moved to Tasmania. I have discussed this matter with Counsel and Counsel is not willing to act in this matter if it is moved to Tasmania.

Following the filing of the first Defendant's subject Summons, I have spoken again with Andrew and Rebecca and they tell me that if this firm and their Counsel were unable to act in a "No Win - No Fee" arrangement if the proceeding is moved to Tasmania as sought in the first Defendant's Summons, that they simply do not have the income or assets to engage and pay for other lawyers in Tasmania or elsewhere to act in this proceeding.

In my experience as a practitioner of over 30 years and in discussion with my colleagues, I understand that it is very rare that practitioners ever engage in commercial matters on such a contingent bases.

I am instructed by Mr. Johnny Kahlbetzer of the third Plaintiff, that Twynam will not pay for the Williams' and fourth Plaintiff's legal costs if the matter is moved to the Supreme Court of Tasmania.

Now produced and shown to me and marked as Exhibit "SAR-1" is a true copy of the Costs Agreement that my firm has entered into with the Plaintiffs.

The Plaintiffs instruct me that the Supreme Court of Victoria sitting at Melbourne is a more convenient place than the Supreme Court of New South Wales sitting in Sydney and especially, more convenient than the Supreme Court of Tasmania sitting in Hobart, as not only do they not have the income or assets to fund a proceeding in the Supreme Court of Tasmania as a result of the death of these horses, but the travel costs, including flights and accommodation for the Plaintiffs, Counsel, instructing solicitor and support staff together with witnesses, associated with running a full trial would be cost prohibitive.

The Plaintiffs oppose the Application to transfer the proceeding to the Supreme Court of Tasmania.

In response to paragraph 10 of the Affidavit of Mr. Kevin Francis Maynard made in support of the first Defendant's Application, I am instructed that none of the Plaintiffs have ever seen or know anything of those documents that Mr Maynard refers to in paragraphs 10 to 12 of his Affidavit and as such none of the Plaintiffs say that they are a party and therefore privy to what the first Defendant refers to as the "contract of carriage" being constituted by the documents that Mr. Maynard refers to. To the contrary, Andrew instructs that he only agreed to board the subject vessel to take the horses to Tasmania when he drove his horses on to the vessel when it was moored at Port Melbourne in the State of Victoria and that he always understood the agreement to be a return journey of the subject horses back to the State of Victoria so he could drive them back to their home. At no time, did he consider that there were two separate contracts; one to take them to Tasmania and one to bring them back. Ultimately, of course this would be a matter for the Court to determine the basis upon which the horses were transported with the Defendants.

Andrew instructs me that he first learnt that the horses had died when he opened the float that he was driving upon arriving at a property in Yarra Glen in the State of Victoria.

Although the matter is only at its very early stage, it is intended that Andrew and his wife will give evidence in this proceeding along with Mr. Johnny Kahlbetzer. All three of these witnesses instruct that the Supreme Court of Victoria sitting at Melbourne is the most convenient forum for them.

I am similarly instructed by Andrew and verily believe that the driver of the other float of horses has similarly confirmed that the Court sitting at Melbourne is most appropriate for him as a witness.

18 On 17 January 2019, Mr Patrick Smith deposed that Qube's principal place of business is Sydney, but that Qube provides stevedoring services nationally, and to TT-Line in both Victoria and Tasmania. TT-Line's team is based in both Victoria and Tasmania, with the team leader being based in Melbourne. Qube's solicitors and counsel are based in Melbourne.

19 Mr Smith deposed that Qube has identified six potential witnesses amongst its employees, three of whom live in Tasmania and three of whom live in Victoria. He is informed by his solicitors that he expects any expert witnesses likely to give evidence at trial to be from New South Wales or Victoria.

20 In the second Maynard affidavit, filed in response to Mr Ryan's and Mr Smith's affidavit, Mr Maynard deposed, in summary, as follows:

(a) he believes, contrary to Mr Ryan's evidence, that Mr Williams was provided with the contractual documentation referred to in paragraph 14 above prior to the crossing from Devonport to Melbourne on 20 January 2018;

(b) he referred to the process by which a consignor of livestock checks in to the ferry service, including the signing by Mr Williams and Mr Martin (the driver of one of the vehicles carrying the horses) of documents titled "Declaration by consignor of livestock/animal welfare statement";

(c) he reviewed CCTV footage showing the drivers of the relevant vehicles at the boom entry and freight office at Devonport on the evening of 28 January 2018; and

(d) in response to Mr Ryan's assertion that counsel engaged by the plaintiff would not be willing to continue to act for them if the proceeding is transferred to Tasmania, he noted the appointment of Mr Chris Winneke QC (the senior counsel who signed the Statement of Claim) as senior counsel assisting the Victorian Royal Commission into the Management of Police Informants.

21 TT-Line also relied upon an affidavit sworn by Ms Kate Causon, its solicitor, on 25 January 2019, in response to Mr Ryan's affidavit. Ms Causon deposed as follows:

I have made enquiries of Mr Cassidy, who undertakes dispute resolution work of a commercial nature at Page Seager Lawyers. He has undertaken commercial litigation and dispute resolution work as a legal practitioner for 14 years. Mr Cassidy has informed me that in his experience:

(a) the Pro Bono Referral Service Committee of the Law Society of Tasmania routinely makes requests to the legal profession to assist members of the public in non-personal injury matters (including commercial matters) on a pro bono basis;

(b) private law firms and barristers in Tasmania regularly provide such assistance; and

(c) Page Seager Lawyers has taken on pro bono work for commercial matters from time to time in response to such requests

22 Finally, Qube relied upon an affidavit sworn by its solicitor, Mr Andrew Tulloch, on 31 January 2019. Mr Tulloch exhibited a map showing Australia's maritime borders produced by Geoscience Australia. The map shows that the Spirit of Tasmania travelled from waters subject to Tasmanian law, into Commonwealth waters, then into Victorian waters, including Port Phillip Bay. He deposed as follows:

If it is established that the polo ponies died at the time pleaded ... then the vessel was in Commonwealth waters and not in waters subject to Tasmanian law.

23 In her written outline of submissions, counsel for TT-Line identified the following relevant connecting factors between the subject matter of this proceeding and Tasmania, as follows:

(a) TT-Line's registered office is in Tasmania;

(b) Devonport is the port of registry of the Spirit of Tasmania ferries;

(c) key events prior to the death of the horses, including their participation in the Barnbougle Polo competition, occurred in Tasmania;

(d) directions given by staff of the defendants prior to the passage of Spirit of Tasmania on 28 January 2018 (and the representation alleged by the plaintiffs to arise from them) were given in Devonport;

(e) the plaintiffs' particulars of negligence include allegations of systems and processes that should have been provided prior to accepting the horses on Spirit of Tasmania in Devonport, or during transit from Tasmania;

(f) nearly all of TT-Line's employees involved in events or circumstances relevant to the proceeding, and who may be called as witnesses, reside in Tasmania;

(g) the contract governing the carriage of the relevant vehicles was entered into in Tasmania by representatives of TT-Line and Barnbougle;

(h) the first plaintiff, Mr Williams, was provided with copies of TT-Line's conditions of carriage documents in Tasmania, prior to Spirit of Tasmania's 28 January 2018 passage from Devonport;

(i) the General Conditions contain, at clause 24.1, a non-exclusive jurisdiction clause that provides that Tasmanian courts have jurisdiction to determine any dispute between TT-Line and a passenger ('jurisdiction clause'); and

(j) TT-Line's legal representatives are based in Tasmania.

24 Counsel submitted that, to the contrary, this proceeding has little connection with Victoria. The proposition that 'Melbourne is the most centrally placed forum', and the fact that the plaintiff's legal representatives are acting on a no win - no fee basis do not provide the Court with a principled basis for refusing the application for the proceeding to be transferred.

25 Counsel submitted that a review of the plaintiffs' particulars of negligence shows that there will be a substantial focus upon TT-Line's systems and processes, which are likely to be the subject of evidence by TT-Line's Tasmanian employees. Further, while she accepts there is a dispute regarding the formation and terms of the relevant contract, counsel submitted that the better view is that the Court will find that the plaintiffs are bound by the General Conditions. While she accepted that the existence of the jurisdiction clause is not determinative of the matter, the Court cannot entirely disregard the nature of the bargain between the parties.

26 Counsel for TT-Line was somewhat critical of the evidence adduced by the plaintiffs in support of their opposition to the application for transfer. She noted that none of the plaintiffs have gone on oath about their financial position, or have produced any documents to support the statements made by their solicitor in his affidavit. The position of Twynam is entirely unclear, and it is not entirely clear from the evidence as to why it is more convenient for the plaintiffs to travel to Melbourne rather than Tasmania.

27 Further, there is no evidence, or no clear evidence as to what enquiries the plaintiffs have made regarding alternative legal representation. Recent experience, such as the bushfire proceedings, shows that it is possible for plaintiffs in quasi commercial cases to obtain legal assistance.

28 Finally, counsel for TT-Line submitted that the number of Tasmanian witnesses tips the balance in favour of Tasmania being a more appropriate forum. It is not a foregone conclusion that witnesses will be allowed by the trial judge to give evidence by video link. If the proceeding was to be transferred to Tasmania, it is possible that the trial may be held in Burnie, not far from Devonport.

29 Senior counsel for the plaintiffs noted that there is a dispute between the parties regarding the terms of the contract and its place of formation, and indeed, whether there was a contract or merely a bailment of the horses. Further, the law of negligence is a common law doctrine applicable throughout Australia.

30 Senior counsel noted that the following relevant matters emerge from the evidence:

(a) the first, second and fourth plaintiffs are suffering hardship;

(b) this hardship was caused by the death of the horses;

(c) they have secured legal representation on a 'no win - no fee' basis in Victoria;

(d) they cannot afford to fund the prosecution of this proceeding in Tasmania;

(e) TT-Line is owned by the State of Tasmania. It can bring its witnesses to Melbourne: indeed, it can do so on its own ship;

(f) TT-Line is familiar with operating in Victoria;

(g) most of TT-Line's Tasmanian witnesses are based in Devonport, not Hobart; and

(h) a view of the truck and the ship will be necessary, which can conveniently take place in Port Melbourne.

31 Senior counsel for the plaintiffs submitted that the plaintiffs' personal circumstances are a critically relevant matter, referring to the decision in this Court in Kellow v Irish Murphy's Pty Ltd[7] ('Kellow'), where Warren CJ acknowledged the relevance of the financial circumstances of the plaintiff, and in that case formed the view that a transfer to Tasmania would cause the plaintiff hardship.

32 Senior counsel for the plaintiffs queried the relevance of what may have occurred during the polo tournament at Barnbougle, noting that no such issue arises on the pleadings.

33 As for the other matters relied upon by TT-Line, senior counsel for the plaintiffs submitted that it was TT-Line's own decision to instruct Tasmanian solicitors and counsel, thus bearing the risk that the proceeding would not be transferred. Further, it is notorious that it is more expensive and difficult to travel to Tasmania than to mainland cities.

34 Counsel for Qube submitted that the interests of justice do not require the transfer of this proceeding to Tasmania, submitting, in summary, as follows:

The alleged loss of the horses is a Federal matter not a Tasmanian matter. The plaintiffs' tortious claim (which is denied) and its contractual claim arise from the common law of Australia. The plaintiff's statutory claim arises from Commonwealth legislation. The alleged negligence (which is denied) took place on an Australian ship, in Australian or Victorian waters. Both Qube and TT-Line operate their businesses in Victoria, Tasmania and in Commonwealth territory. The location of potential witnesses, while not carrying substantial weight, does not tie this proceeding to Tasmania. The Supreme Court of Victoria is well placed to hear and determine this proceeding.

35 Counsel for Qube submitted that, by reason of the provisions of ss 4 and 9 of the Admiralty Act 1988 (Cth), the claim with respect to the horses is a Commonwealth matter, not a Victorian or a Tasmanian matter. The plaintiffs' claims are made under the common law of Australia, and a Commonwealth statute. He submitted that the jurisdiction clause relied upon by TT-Line is not truly an exclusive jurisdiction clause, and as such, is not determinative of the matter. Indeed, by entering an appearance and filing a defence, TT-Line has submitted to the jurisdiction of this Court.

36 Counsel for Qube submitted that the Court should give significant weight to the place of the wrong: in the current case, the place of the death of the horses. While this cannot be known with any certainty, the likelihood is that they died in either Commonwealth or Victorian waters. The ferry is an Australian ship, not a Tasmanian ship, and both TT-Line and Qube do business in Victoria as well as Tasmania. The location of witnesses is not a determinative matter. The use of video link facilities is now quite common, and one might expect much of the lay evidence to be uncontroversial.

37 Finally, counsel for Qube submitted that this Court is more than adequately qualified to hear and determine this proceeding and, unlike the Supreme Court of Tasmania, has in place specialist lists such as the Major Torts List and the Admiralty List for the management of this proceeding.

38 I am not satisfied that, having regard to the relevant considerations, that Tasmania is a more appropriate forum for this proceeding. While the relevant matters are finely balanced, such that Victoria and Tasmania might be considered to be equally appropriate venues for the proceeding, albeit perhaps for different reasons, in my view it could not be said that Tasmania is a more appropriate forum than Victoria. Indeed, most of the relevant factors are neutral in their impact upon the determination of which is the more appropriate forum.

39 Turning to the relevant factors identified by Robson J in Irwin v State of Queensland,[8] with respect to tortious matters, I make the following observations:

(a) the place where the wrong occurred****: based upon the pleadings, and submissions of counsel for Qube, the death of the horses probably occurred in Commonwealth waters or in Victoria;

(b) the residence of the parties: the parties are 'resident' in New South Wales and Tasmania, and the defendants carry on business with respect to the Spirit of Tasmania in Victoria and Tasmania;

(c) the convenience of the parties and the witnesses: Melbourne is the most convenient venue for the plaintiffs and Qube. It is not necessary for me to have direct evidence before me to conclude that it is easier to travel between New South Wales and Victoria than it is to travel between New South Wales and Tasmania. Further, those parties' legal representatives are in Victoria. While many of TT-Line's witnesses live in Tasmania, most of them are in Devonport, in northern Tasmania, and TT-Line runs daily ferry services to Melbourne. Either Melbourne or Devonport would be convenient for a view of the ship. Further, video link facilities could be utilised for remote witnesses;

(d) the relevant law: the proceeding is governed by Australian law;

(e) the experience of a particular court: this is a relatively neutral factor, save to say that this Court has a specialised case management list and an established record in dealing with significant tort claims; and

(f) the condition of the parties: while here there are no physical impediments limiting the ability of the plaintiffs to prosecute this proceeding in Tasmania, they do have a number of practical impediments. First, they have experienced solicitors and counsel prepared to act of them on a 'no-win no fee' basis in Melbourne. While there is evidence that Hobart solicitors may offer their services on such a basis from time to time, the comparative size of the legal profession in Melbourne and Hobart suggests that the plaintiffs are more likely to obtain the assistance of pro-bono counsel (including, if required, a replacement for Mr Winneke QC) in Melbourne.

40 Further, in relation to the above, I do not accept that the plaintiff's particular financial and personal circumstances do not form a principled basis for preferring one venue over another. First, the decision in Kellow[9] makes it clear that these are relevant matters. Secondly, the authorities make it clear that the Courtm in evaluating which court is a more appropriate forum, is to take a 'nuts and bolts'[10] approach, that is, a pragmatic, rather than an academic, approach to the issue. Accordingly, the practical consequences for the plaintiffs of a transfer must be a relevant factor, especially in circumstances where the plaintiffs, who have, setting aside questions of liability, clearly suffered a substantial blow to their livelihood, may well not be able to properly pursue their claims were the proceeding to be transferred. In that regard, the following observations of Emerton J in Lloyd v Riverland Regional Health Service Inc[11] are instructive:

However, the answer must lie in the overall justice of the situation and each case must be considered on its merits. The evidence before me was that after some difficulty, the plaintiff has succeeded in finding a solicitor in a regional centre near to where she lives and near to where the tort was committed who is prepared to assist her on a no win no fee basis. This solicitor is doing his best to ensure that she has the benefit of funds to pay for disbursements through the Law Aid scheme and to have the matter listed for hearing in the next civil circuit in 2011. This is an important factor, because it has enabled the plaintiff to bring her cause of action. Having regard to this factor does not involve any presumption in favour of the plaintiff's choice of forum; it simply recognises that the particular circumstances in which the plaintiff finds herself in this case are relevant to determining where the interests of justice lie.[12]

41 Accordingly, the practical ability of the plaintiffs to pursue their action, particularly where the defendants are well resourced corporate defendants, is relevant to the determination of what is in the interests of justice.

42 Some criticism has been made of the plaintiffs' evidence regarding the difficulties they face prosecuting the proceeding in Tasmania, in particular, that the plaintiffs' evidence is hearsay, is imprecise, and lacks documentary support. However, the plaintiffs' evidence is entirely plausible. It is no stretch to conclude that a family earning $90,000 per annum would find it difficult, if not impossible, to fund reasonably complex civil litigation. Further, while it is not impossible for plaintiffs in quasi-commercial actions to obtain no win-no fee representation, that is more of a feature of class actions, not one-off claims such as the current action. As such, the particular position of the plaintiffs, in circumstances where the other relevant matters are finely balanced (albeit perhaps leaning slightly towards Victoria), tells against Tasmania being the most appropriate forum.

43 Finally, the existence of the jurisdiction clause in the General Conditions does not weigh heavily in favour of Tasmania as the more appropriate forum. First, the question of whether the plaintiffs were bound by the General Conditions is a factual contest which, while one expects might be resolved in favour of TT-Line, must be resolved at trial, not in the context of this application. Secondly, while it is not necessary for present purposes to reach a definitive view on the matter, I would lean towards the view expressed by counsel for Qube, and conceded by the counsel for TT-Line, that the jurisdiction clause is a non-exclusive jurisdiction clause.

44 However, regardless of whether the General Conditions contain an exclusive jurisdiction clause or a non-exclusive jurisdiction clause is of relatively limited importance in the current application. In Sedman[13], I considered what weight ought to be given to an exclusive jurisdiction clause in determining an application for transfer under the Act, stating as follows:

While the "connecting factors" in Spiliada do not make express reference to the existence or otherwise of an exclusive jurisdiction clause, the authorities regarding determination of transfer applications under the Act demonstrate that the existence of such a clause is, at the very least, relevant. The divergence between the authorities is really as to the question of what weight ought to be afforded to an exclusive jurisdiction clause: that is, whether there ought to be a strong bias towards holding parties to their bargains, or whether the existence of an exclusive jurisdiction clause is simply one of a range of matters that needs to be taken into account.

In my view, the emphatic statements of the High Court, the NSW Court of Appeal, and the Victorian Court of Appeal regarding the ouster of traditional common law principles by the scheme put in place by the Act, including their observations that the interests of justice do not necessarily align with the interests of the parties, support the approach adopted by Philippides J in World Firefighters, and endorsed by the Queensland Court of Appeal in Rivergum. At the very least, I would be hard pressed to form the view that this position is "plainly wrong". Perhaps a more nuanced position is expressed by Whelan J in Slater & Gordon v Porteous:[14]

Whilst exclusive jurisdiction clauses ... do not have the effect that they have in the "forum non conveniens" context, they remain a relevant factor and may be the critical factor in a particular case. Such a clause may indicate that the parties turned their minds to the question of where litigation should occur and agreed upon a single exclusive venue. This factor may be particularly compelling where it can be said that the parties must have been conscious at the time of the agreement of the existence of connecting factors between potential disputes and a State other than the exclusively designated State, and must have been conscious of the existence of potential inconvenience for one of the parties in litigating in the exclusively designated State.[15]

45 In the current case, the circumstances weigh against giving the jurisdiction clause great weight. It is contained in a standard form contract, in circumstances where TTLine asserts that its contract was with Barnbougle, not the plaintiffs, and the plaintiffs assert there was no contract at all. If the plaintiffs were parties to a contract with TT-Line, they were in no position to bargain with TT-Line. As noted by Whelan J in Slater and Gordon Pty Ltd v Porteous:[16]

Such a clause may indicate that the parties turned their minds to the question of where litigation should occur and agreed upon a single exclusive venue. This factor may be particularly compelling where it can be said that the parties must have been conscious at the time of the agreement of the existence of connecting factors between potential disputes and a State other than the exclusively designated State, and must have been conscious of the existence of potential inconvenience for one of the parties in litigating in the exclusively designated State.

46 There is no evidence of any relevant 'consciousness' here, indeed, the evidence is to the contrary. The jurisdiction clause ought therefore be given limited weight, and certainly does not outweigh the substantial inconveniences and potential prejudice to the plaintiffs should the proceeding be transferred to Tasmania.

TWYNAM AGRICULTURAL GROUP PTY LTD (ACN 000 573 213)

[1] [2013] VSC 549.

[3] [2011] VSC 291.

[4] [2004] HCA 61; (2004) 221 CLR 400.

[5] [2011] VSC 291 [14].

[7] [2010] VSC 239.

[8] [2011] VSC 291.

[9] [2010] VSC 239.

[10] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, [13].

[11] [2010] VSC 350.

[13] [2013] VSC 549.

[14] [2005] VSC 398 [26].

[16] [2005] VSC 398. See also Tasmania Land Company Ltd v Van Dairy Group Pty Ltd [2018] VSC 618.