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Judgment

1. This is an application by RACQ Insurance Limited to have proceedings transferred from the District Court to this Court, pursuant to s 140 Uniform Civil Procedure Act 2005 (NSW) and s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), and for a further order that this Court should then transfer those proceedings to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act.
2. The proceedings arise out of an accident sustained by Matthew Roebuck who I shall refer to as the Claimant, on 16 May 2010. On that day he was riding his motorcycle on the Gold Coast Highway when he was struck by a motor vehicle coming in the opposite direction, which strayed onto his side of the road. As a result of the accident, he suffered reasonably severe injuries to his right limbs. He made a claim against RACQ Insurance, the second defendant in the proceedings, and on 6 January 2011 there was an admission of liability by the Insurer.
3. Settlement conferences were held in May and December 2012, but the quantum of the Claimant's damages were not agreed at those settlement conferences. That led to the commencement of the proceedings on 31 January 2013 in the District Court at Lismore. The Statement of Claim in those proceedings was served on 5 February 2013. At the time of the service of the Statement of Claim, the standard timetable in the District Court was served together with the Form One and a statement of particulars.
4. There is a dispute about whether a report from Dr Sussman, the psychiatrist, was served at the time with the Claimant maintaining that it was served and RACQ saying that it was not. Although something of an issue was made about that, in terms of when the proceedings are likely to be heard, the matter seems to me to be relatively unimportant.
5. On 15 March, the solicitors for the Claimant wrote to the solicitors acting for the Insurer making reference to correspondence and telephone conferences in February and March where it was said that the Insurer's solicitors had indicated they were seeking instructions from their client to make an offer. By this stage, a defence had not been filed to the claim and, indeed, up to the present time, there has been no defence.
6. It appears that a mediation took place at some time. There is no specificity as to the date of this but it was thought, by those who appeared before me, to have been in either April or early May 2013. I think the likelihood is that it must have been April because the present Summons to cross-vest the proceedings was filed on 22 April 2013. I note, however, that there does not appear to be any explanation for the delay in the Summons having been served from early February when the Statement of Claim by the Claimant was served, except for the explanation of a mediation having taken place.
7. The principles in relation to cross-vesting applications have been detailed in BHP Billiton v Schultz [2004] HCA 61; (2004) 221 CLR 400 particularly at [14] and [15]. The judgment of Gleeson CJ, McHugh and Heydon JJ, in that case makes it clear, as the legislation does, that it is the interests of justice that must be regarded. Their Honours say at [15] that the interests of justice are not the same as interests of one party, and there may be interests wider than those of either party to be considered. Even so, they say, the interests of the respective parties, which might in some respects be common, as for example cost and efficiency and in other respects conflicting, will arise for consideration. The justice referred to in s 5 of the Act is not disembodied or divorced from practical reality.
8. In James Hardie v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357, Spigelman CJ said at [7]: "To determine which court is, in the interests of justice, the appropriate court, it is necessary to enquire in the case of a tort as to what is the place of the tort. Indeed, in the context of administering the cooperative national scheme in the jurisdiction of the Courts Cross-Vesting Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie."
9. I have also had regard to what was said by Harrison J in British American Tobacco Australian Services Limited v Laurie (2009) NSWSC 83 at [25] to [27] and to McCallum J's decision in Reid v Wright [2012] NSWSC 1149 where she conveniently summarises the authorities at [4] to [13]. McCallum J also makes the important point at [19] that the existence of a legal statute, except in the case of uniform national legislation, should generally be considered a factor pointing in favour of the place of the alleged tort as the natural or appropriate forum because it is generally better that the laws of a State be construed by the Supreme Court of that State.
10. In the present case, the Claimant and his wife reside in Queensland at a place called Biggera Waters. This is a place relatively close to Southport. The Claimant was taken to the Gold Coast Hospital at Southport after the accident and, at least, some of the treating doctors have been in that area. Other doctors, who have seen the Claimant, have resided and carried on their practices in New South Wales. The Claimant works and has worked for many years in South Tweed Heads in New South Wales. There can be no doubt in the present case that the two significant factors, mentioned by Spigelman CJ in James Hardie, point to Queensland as being the appropriate forum. However, as Spigelman CJ acknowledged, other factors may also assume some importance.
11. In the present case, it cannot be overlooked that this dispute arises only because of the relatively arbitrary nature of where the border between the two States is. The comparison, if that is the appropriate term, is between a hearing a little way over the border in New South Wales at Lismore as opposed to a hearing either on the Gold Coast or at the Supreme Court in Brisbane. The Claimant lives in Queensland but works in New South Wales. The doctors are in both States. The Insurer argues that the closer connection is with Queensland. Both because of his residence and the place of the tort.
12. The Insurer points to the fact that there will be extra costs and inconvenience if the doctors are required to attend court in Lismore. The Insurer also submits that the matter, wherever heard and in whichever court, will need to be determined according to the laws of Queensland and, in particular, the Civil Liability Act 2003 (Qld) and the accompanying Regulation of the same year. The three principal areas of dispute, in relation to the damages are non-economic loss (called in Queensland general damages), economic loss and gratuitous care.
13. It is true that there is a difference between the two States in the approach to the assessment of non-economic loss or general damages. In New South Wales, there is a relatively simple table in the Civil Liability Act 2002 (NSW) or the Motor Accidents Act 1988 (NSW) for assessment of those damages. In Queensland, the matter is more complex by virtue of the Civil Liability Regulation. In that regard, it may be accepted that the amount of recovery for general damages in Queensland is ordinarily lower than is allowed under the legislation in New South Wales, although there is a unique provision known as a 25 percent uplift where there is more than one serious injury, as in the present case. A perusal of the Queensland Civil Liability Act suggests that there is virtually no difference in the way damages for economic loss are determined under s 54 of that Act compared with the provisions of the New South Wales Act. Similarly, the calculation of damages for gratuitous services under s 59 of the Queensland Act is also very closely similar to the provisions in New South Wales.
14. It does not seem to me that any weight should be placed in this case on the need for the court of the native State to interpret its own legislation. No serious issues of construction of that legislation arise.
15. The matter that weighs most heavily with me is the extra time likely to be involved before the proceedings come to a hearing if there is a transfer. There is evidence that if the matter remains in the District Court at Lismore it is likely to be listed for hearing in the August sittings of the court. There was little evidence, on the Insurer's part, about when the matter might be heard if transferred to the Queensland courts.
16. In the affidavit read in the proceedings, Mr Beirne, the solicitor for the Insurer, said that there were numerous sitting dates available in both the Supreme and District Courts in Brisbane when compared with Lismore. When I indicated that there was little specific evidence about when the matter would be heard in Queensland, enquiries were apparently made and I was informed from the Bar table of the process that usually takes place when there is a cross-vesting at the stage the present proceedings have reached. It was said that overall there would be 10 weeks before the matter would be ready for a hearing, that that would involve a provision of a defence, a reply and particulars to be supplied and responded to on both sides. The suggestion made from the Bar table was that the proceedings, if transferred to the Supreme Court in Queensland, could be heard in September or thereabouts.
17. There will, undoubtedly, be delays in the proceedings being transferred first from the District Court to this Court and then being cross-vested to the Supreme Court of Queensland. Apart from what I was informed at the Bar table, there was no direct evidence of what priority this matter would be given when put into the Supreme Court of Queensland nor actually of what the delay in obtaining a hearing date would be after the matter was considered ready for that purpose.
18. Section 56 of the Civil Procedure Act in New South Wales provides as a dominant consideration for all matters the just, quick and cheap resolution of proceedings. That Act, of course, applies to proceedings in the District Court of New South Wales. It seems to me that to fulfil that objective the matter is best left in the District Court of New South Wales where it is likely to be heard in August.
19. I do not consider that there will be much inconvenience or cost involved in doctors having to give evidence, if the proceedings remain in the District Court in Lismore. Telephone evidence is available and is used in the District Court in New South Wales as it is, I am told, in Queensland. Audio visual link facilities are available. In any event, there is evidence from the Claimant that he does not propose to call any expert witnesses in the case but will rely on their reports and does not seek any of the Insurer's experts for cross-examination at the present time.
20. I accept, however, that the Insurer may wish the Claimant's doctors, or some of them, to be available for cross-examination. The distances involved in travel, even from Brisbane to Lismore, are not considerable. Further, it is likely that there will be extra costs involved by the need to transfer these proceedings from the District Court to this court and then cross-vest them and with the filing of additional documents required by the Queensland courts.
21. The legislation is relevantly the same and the method of calculating damages, except for the damages for non-economic loss, is similar between the jurisdictions. It seems to me that the timing of the hearing is the factor that outweighs the fact that the proceedings would otherwise more properly be heard in Queensland by reason of the place of the tort and the residence of the Plaintiff and his wife.
22. For those reasons, I decline to order the transfer of the proceedings from the District Court, and I decline necessarily to cross-vest those proceedings to the Supreme Court of Queensland.
23. The Insurer submits that the costs should fall where they lie, that is that effectively each party should pay their own costs of this application on the basis it was not an application made about merit and it was necessarily for the various matters to be able to be considered.
24. The principal basis upon which I have determined that the matter should not be cross-vested was on the basis of when it was likely the proceedings would first be heard. There are comments made in judgments to which I have referred, that the time of the hearing is a relevant matter. The Claimant has put on evidence of that in relation to the application.
25. As I have mentioned, the Insurer's evidence about it was sparse in the extreme. It is always a relevant consideration because, prima facie, his cross-vesting will involve some delay.
26. In the circumstances, the Insurer has been unsuccessful and I consider it should pay the costs of the Claimant of the application.
27. The orders I make are these: (1) Dismiss the Summons. (2) The First Plaintiff is to pay the Defendant's costs.