Qualia Wine Services Pty Ltd v Pearce

The location of the accident, the clients and those likely to be called as witnesses

1. In the statement of claim filed in the District Court Proceedings, Mr Pearce claims damages against Qualia for injuries sustained by him when he slipped and fell on 3 February 2016. He alleges that the soles of his boots became slippery as a result of grape residue which had collected on them when he was walking across the weighbridge at Qualia's premises at Irymple. Irymple is a town in Victoria, which is about 6kms from Mildura. The centre of Mildura is also in Victoria but some of its suburbs are in New South Wales.
2. Mr Pearce, who is 78 years old, was working as a truck driver at the time. He lives in Dareton, a suburb of Mildura which is north of the border and therefore in New South Wales. Mr Howes and Mr Evans, directors of Qualia who also manage the business, live in Mildura. Mr Pearce, Mr Howes and Mr Evans live within a short distance of the courthouse in Mildura in which both the Supreme Court and County Court sit when on circuit. Mr Pearce's general practitioners practise from a clinic in Buronga, a suburb of Mildura on the New South Wales side of the border. Mr Pearce's treating surgeon practises from Sportsmed in Adelaide, the capital of South Australia.
3. On about 4 July 2017 Mr Pearce instructed solicitors whose office is in Albury, a town in New South Wales. His solicitors retained Dr Gehr, an orthopaedic surgeon, who resides in Alexandria, a suburb of Sydney, the capital of New South Wales. They also retained Mr Mills, another orthopaedic surgeon, who resides in Melbourne, the capital of Victoria.

The applicable substantive and procedural law

1. As Mr Pearce's cause of action in tort accrued in Victoria (his location when damage was first suffered), the substantive law is that of Victoria. The applicable legislation includes the Wrongs Act 1958 (Vic) and the Occupational Health and Safety Act 2004 (Vic). If the matter is heard in New South Wales, the applicable procedure is as provided for by the Uniform Civil Procedure Rules 2005 (NSW). If the matter is heard in Victoria, the applicable procedure is that of Victoria.
2. It was common ground that both jurisdictions encourage alternative dispute resolution.
3. It was also common ground that one difference between the procedural laws of the two jurisdictions is that, in Victoria, parties have a right to discovery and interrogatories whereas in New South Wales, discovery and interrogatories are available only with the court's leave. Another procedural difference is that Qualia could requisition a jury if the matter were heard in Victoria. Ms Cameron, who appeared for Qualia, confirmed that Qualia would not seek a jury if the matter were transferred to Victoria.

The relative distances and modes of transport available

1. Albury is about six hours' drive from Mildura. There is no direct train, bus or flight between the two towns. To fly from Albury to Mildura would require two flights: the first to either Melbourne or Sydney; and the second to the destination town. This journey would take in the order of 4½ hours and cost in the order of $350 one way. A train journey would require changes at Kerang and Shepparton and take over 11 hours. A bus journey would require a change in Swan Hill and take about 9½ hours.
2. There is a direct flight from Adelaide to Mildura which takes an hour and five minutes. To fly from Adelaide to Albury would require two flights: the first to Sydney or Melbourne and the second to Albury.

The conduct of the District Court Proceedings and the current proceedings to date

1. The District Court Proceedings were commenced by the filing of a statement of claim on 31 January 2019. The statement of claim was not served until 2 April 2019. Qualia filed and served notices of appearance on 12 April 2019.
2. On 16 May 2019, Qualia's solicitors wrote to Mr Pearce's solicitors and raised the question of transfer. They asked whether Mr Pearce lived or received any medical treatment in the Albury area. On 21 May 2019, Qualia's solicitors wrote again to Mr Pearce's solicitors and said, of present relevance: "My client will still consider its position regarding a possible transfer of the action to Mildura and let you know its decision at the earliest opportunity possible. In the meantime, we are happy to set down a timetable towards hearing."
3. On 6 June 2019 Qualia sought particulars of the statement of claim. On 4 July 2019 Qualia's solicitors wrote, in part as follows: "I refer to my email of 6 June below and our attached request for further and better particulars. Your client's response is now overdue. Are you able to let me know when we can expect to receive it? My client will wish to see the response before making a decision on whether the action should be transferred."
4. Mr Pearce provided particulars on 24 July 2019. On 5 August 2019 Qualia filed and served defences.
5. On 6 August 2019 Mr Pearce served a report of Dr Gehr and his certificate of assessment as prescribed by s 28LN of the Wrongs Act 1958 (Vic). The prescribed particulars were served on 19 August 2019.
6. On 13 August 2019 Qualia filed a summons in the District Court to transfer the District Court Proceedings to the Supreme Court of Victoria. On 28 October 2019, the District Court dismissed the summons on the basis that it did not have jurisdiction to order such a transfer.
7. On 15 November 2019, Qualia filed the summons in this Court. In the affidavit filed in support of the summons, Ms Van Grieken deposed that Mr Pearce had not yet served any primary medical material. She also deposed that, as a consequence, Qualia was not aware of the location of Mr Pearce's medical practitioners.
8. The summons was returnable for directions before the Registrar on 13 December 2019. At that point Mr Pearce's legal representative sought that the matter be referred to the Duty Judge. However, inadequate notice had been given to Qualia's lawyers of the potential for referral. Further, the estimated duration of the hearing was three hours, which is in excess of the time allowed for referrals to the Duty Judge. Accordingly, the matter was listed for hearing on 21 February 2020 with an estimate of half a day.
9. By email dated 24 January 2020, Qualia's solicitors served a draft affidavit of discoverable documents with electronic links to such documents. They have also served a draft notice for general discovery and draft interrogatories (eight in number, some with sub-questions). It is common ground, as referred to above, that, if the matter is transferred to Victoria, Qualia would be entitled to discovery and interrogatories by right. If it is not transferred, such procedural steps require leave.
10. The District Court Proceedings are listed for status conference on 26 February 2020 at which time it is expected that a hearing date in the Albury sittings will be allocated if the matter is not transferred.

The state of the sittings in the District Court of New South Wales at Mildura, the Supreme Court of Victoria and the County Court of Victoria sitting in Mildura

1. The Supreme Court of Victoria has an annual civil circuit in Mildura. The next circuit in Mildura is scheduled to run from 1 June 2020 until 26 June 2020. As at 13 December 2019, there was capacity in the Mildura circuit for the matter to be listed in that circuit.
2. The next sitting for the District Court of New South Wales at Albury is to commence on 8 June 2020.
3. The next sitting for the County Court of Victoria in Mildura commences on 21 September 2020.

Other factors

1. Mr Cameron, Mr Pearce's solicitor, deposed that audio-visual link (AVL) facilities are available for hearings in the New South Wales District Court which would enable many, if not all, witnesses to give evidence remotely rather than be required to travel to Albury. I would not assume that such facilities would not be available in the Victorian Supreme Court or the Victorian County Court.
2. It was common ground that any damages likely to be awarded to Mr Pearce would fall within the jurisdictional limit of the District Court of $750,000.

Relevant legislative provisions

1. Section 140 of the Civil Procedure Act 2005 (NSW) relevantly provides: "140 Transfer of proceedings to higher court (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court … order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. … (3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied: … (b) in any other case: … (ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court. …"
2. The Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (Cross-vesting Act) relevantly provides: "5 Transfer of proceedings … (2) Where: (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. … 8 Orders by Supreme Court (1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in: (i) a court, other than the Supreme Court, of the State, or … (b) it appears to the Supreme Court that: … (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court. (2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court. …"

Consideration

1. In substance, Qualia submitted that it was in the interests of justice for the matter to be heard in Mildura rather than Albury. It submitted that the matter ought be transferred to the Supreme Court in Victoria, either for that court to hear the proceedings itself or for that court to transfer the proceedings to the County Court in Victoria. Qualia contended that this amounted to a "sufficient reason" for the matter to be transferred under s 140 of the Civil Procedure Act to this Court so that it could be transferred to the Supreme Court of Victoria.
2. Mr Dean, who appeared on behalf of Mr Pearce, argued that the interests of justice did not favour transfer. He submitted that witnesses could give their evidence by AVL, thereby obviating the need for travel. He also contended that Mr Pearce ought be saved the additional cost of having his solicitor being required to travel from Albury to Mildura. He contended that if the matter were to be heard by the Supreme Court of Victoria rather than the District Court of New South Wales, Mr Pearce would have to incur the cost of senior counsel. Mr Dean also submitted that Qualia was guilty of delay in making the application and that any transfer would delay the hearing date because of the proposal for discovery and interrogatories. Mr Dean relied on an affidavit of his former instructing solicitor in support of the proposition that Mr Pearce, if successful, would recover a greater proportion of his actual costs if the matter were heard in New South Wales because of the different scales in the different jurisdictions.
3. The principles to be applied to Qualia's application are well established. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 (Billiton), the plurality (Gleeson CJ, McHugh and Heydon JJ) said: "[14] …[T]he court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. [15] The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff's lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various…"
4. In Giddy v Rocky Castle Finance Pty Ltd [2016] NSWSC 314 Fullerton J, when considering whether to make an order under s 5 of the Cross-vesting Act, described the court's task in the following way at [23]: "There is no onus on the plaintiff to establish that the proceedings should be transferred to South Australia. What the Court is required to do is to endeavour to predict, on the available material, which of the New South Wales District Court and the Supreme Court of South Australia appears to be the more appropriate forum having regard to the interests of justice. In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714, Street CJ said of s 5(2)(b)(iii) of the Cross-vesting Act: … It calls for what I might describe as 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 …"
5. There are only two real connections between the proceedings and Albury, being the location in New South Wales where the District Court sits and where the proceedings have been commenced. The first is that this is where Mr Pearce's solicitors have their offices, which presumably explains why the proceedings were commenced there: see the extract set out above from [15] in Billiton. The second is that Dr Gehr comes to Albury periodically to run clinics there.
6. By contrast, the parties to, and the subject of, the proceedings have a strong connection with the Mildura area. Mr Pearce lives in the Mildura area. Qualia runs its business in the same area. The lay witnesses and Mr Pearce's general practitioner live in the Mildura area. While courts generally accommodate parties' requests for evidence to be given by AVL, it is preferable that evidence be given in person. If the matter is heard in Mildura, the majority of witnesses will be close at hand and able to give evidence in person.
7. Expert witnesses will be required, if they are to give evidence in person, to travel from a capital city to either Albury or Mildura.
8. The substantive law to be applied is that of Victoria. New South Wales courts can, and do, apply the law of other jurisdictions. However, this factor is also to be weighed in the balance.
9. Although there are differences in the procedural rules, I do not discern that these differences give either party a particular forensic advantage. If the matter is transferred to Victoria both parties will have the benefits of discovery and interrogatories without the need for a grant of leave. If no such order is made, Qualia will apply to the District Court for leave to obtain discovery and administer interrogatories, the notices for which have already been drafted and served.
10. I am not persuaded that any difference in the laws relating to costs is other than a neutral factor since it cannot be assessed, for the purposes of this application, which of the parties will be successful.
11. It is impossible to predict with any certainty when the matter will be heard whether or not an order for transfer is made. Much depends on the state of the lists in Mildura and Albury and whether other cases in the list resolve. There is a real prospect that the matter will be heard in June 2020 whether an order for transfer is made or not, although there is no guarantee either way that it will be. I note that the hearing is estimated to take between three and five days.
12. The principal disadvantage for Mr Pearce of an order for transfer is that his solicitor will have to travel to Mildura for the hearing of the matter. If he is successful in the proceedings, the costs of such travel will, all other things being equal, be borne by Qualia. If he is unsuccessful, then he will have to bear those costs, subject to any agreement to the contrary with his solicitors. However, these costs are likely to be outweighed by the significant savings if the matter is heard in Mildura, given the many witnesses who live in that area.
13. I do not accept the submission put on behalf of Mr Pearce that he will have to brief senior counsel if the matter is to be heard by the Supreme Court of Victoria. This would not appear to be a matter which would warrant senior counsel. I accept Ms Cameron's statement that it is not uncommon for junior counsel to appear unled in the Supreme Court of Victoria, as occurs in this Court.
14. I do not consider Qualia to be guilty of any particular delay. The prospects of an application for transfer depends, by reason of the wording of s 5(2)(b)(iii) of the Cross-vesting Act, on an assessment of where "the interests of justice" lie. Such an assessment could not have been responsibly made by Qualia's legal representatives before the provision of particulars and the report of Dr Gehr, since these documents disclosed where Mr Pearce's treating doctors reside. Shortly after Dr Gehr's report was served, Qualia filed an application for transfer. Its first application was made under a misapprehension that the District Court had jurisdiction to order the transfer. Mr Pearce's solicitors did nothing to correct that misapprehension, but waited until the matter came before the District Court on 28 October 2019 when a submission to that effect was made on Mr Pearce's behalf. The summons was filed in this Court just over a fortnight later. Having regard to the estimated length of the hearing, it required a special fixture.
15. For the reasons given above, I am persuaded that there is a "sufficient reason" within the meaning of s 140(3)(b)(ii) of the Civil Procedure Act for transferring the District Court Proceedings to this Court. I am further satisfied that the proceedings ought be transferred from the District Court to this Court pursuant to s 8 of the Cross-vesting Act. This transfer is necessary in order to invoke this Court's power under s 5 of the Cross-vesting Act to transfer the proceedings to the Supreme Court of Victoria. I am satisfied that it is in the interests of justice that the matter be transferred.

Costs

1. Although Ms Cameron sought an order that Mr Pearce pay Qualia's costs of the application, she ultimately accepted that it would be appropriate for me to order that the costs of the application be costs in the cause. Orders for transfer cannot be made by consent since they require the court to be satisfied of the various matters required by the statutory provisions. It is useful for the court to have a contradictor. In these circumstances, I am not persuaded that the general rule that costs follow the event (Uniform Civil Procedure Rules 2005 (NSW), r 42.1) ought apply to this application as opposed to the proceedings generally.

Orders

1. For the reasons given above, I make the following orders: 1. Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) and s 8(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), transfer NSW District Court proceedings number 2019/00033454 and any cross-claims in that proceeding (the District Court Proceedings) to the Supreme Court of New South Wales. 2. Pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), transfer the District Court Proceedings to the Supreme Court of Victoria. 3. The costs of the summons be costs in the cause. 4. Otherwise order that the costs of the District Court Proceedings to date, to the extent that they have not been already determined, be determined by the Supreme Court of Victoria.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2020