Robinson v State of Victoria

Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 5

Cases Cited: Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab [2016] NSWSC 1749
Pilbara Ports Authority v Ashton [2019] NSWSC 1488

Category: Procedural rulings

Parties: Gary Earl Robinson (Plaintiff)
State of Victoria (Defendant)

Representation: Counsel:
C Barry KC / T Meakes (Plaintiff)
L Dargan (Defendant)
Solicitors:
Marocchi Law (Plaintiff)
Victorian Government Solicitor’s Office (Defendant)

File Number(s): 2025/317462

Publication restriction: Nil

JUDGMENT

1. By Notice of Motion filed on 8 October 2025, the defendant, the State of Victoria, seeks an order pursuant to s 5(2)(b)(i) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (“the Act”) to transfer the proceedings from this Court to the Supreme Court of Victoria.

2. The principal proceedings were commenced in this Court by way of a Statement of Claim filed on 19 August 2025.

3. The proceedings arise from allegations by the plaintiff that he was sexually abused by a teacher at a primary school in Victoria between 1982 and 1985, whilst the plaintiff was a student at the school. The plaintiff was between the ages of 7 and 8 years at the time of the alleged abuse. The allegations contained in the Statement of Claim are that the teacher engaged in grooming conduct and abused the plaintiff on multiple occasions, including by digital/anal penetration and penile/anal penetration. The abuse is alleged to have occurred when the teacher was alone with the plaintiff at the school during detention, at lunchtime and when the plaintiff was offered opportunities to play computer games during recess.

4. The particulars of breach of duty of care include that the defendant failed to have in place appropriate safeguards to protect children from abusive and predatory behaviour, failed to adequately supervise and failed to have appropriate systems in place to protect the safety of students. The particulars include reference to a failure to employ cameras or signage to deter private liaisons between teachers and students and a failure to implement or maintain appropriate systems for reporting sexual abuse by teachers.

5. In a Defence filed on 16 September 2025, the defendant has admitted that the plaintiff was enrolled as a student at the school during the relevant period, that the school was operated and managed by the defendant, that it may be liable for the tort of any servant, agent or independent contractor employed by it and that the staff at the school owed students (including the plaintiff) a duty to take reasonable care for their safety and wellbeing. The Defence otherwise contains denials and non-admissions.

6. The proceedings are still at a very early stage. Apart from the filing of the pleadings and the plaintiff’s Statement of Particulars, no other steps have been taken towards the preparation of the matter for trial. No orders have yet been made for service of evidence. The matter is next listed for a directions hearing on 2 April 2026, at which time the issue of the adequacy of the pleadings, the service of witness statements and other pre-trial steps are likely to be considered.

7. The plaintiff was born and educated in Victoria but now resides in New South Wales. He has lived in this state since about 2004 and resides in suburban Newcastle.

8. The plaintiff opposes the application to transfer the proceedings to Victoria.

9. The issue to be determined is whether it is in the interests of justice for the proceedings to be transferred to Victoria, given the various countervailing factors raised by the parties.

Legislation and applicable principles

10. Section 5(2) of the Act 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—

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a 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 the Commonwealth or another 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 the Commonwealth or another 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 of a Territory,

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

11. The subsection relevant to the present application is s 5(2)(b)(iii). The applicable test requires an evaluative determination of whether it is in the interests of justice that the proceedings be determined by the Supreme Court of another state or territory.

12. The relevant principles drawn from case law are conveniently summarised in Pilbara Ports Authority v Ashton [2019] NSWSC 1488 (“Pilbara Ports Authority”) at [12]. There, Lonergan J summarised the relevant principles as follows:

“a. The power to exercise the power to transfer is not a discretionary power but a mandatory obligation when the interests of justice are determined. No question of discretion arises: BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at 434-5 [62]-[63] (per Gummow J); 481 [222] (per Callinan J).

b. The plaintiff's choice of forum, indicated by commencement of the proceedings, does not require any specific emphasis or weight to be given to it: Schultz at 425 [25] (per Gleeson CJ, McHugh and Heydon JJ); 439 [77] (per Gummow J); 466 [170] (per Kirby J); 492 [258] (per Callinan J).

c. The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424 [22] (per Gleeson CJ, McHugh and Heydon JJ).

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: Schultz at 421 [15] (per Gleeson CJ, McHugh and Heydon JJ).

e. The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at 419-20 [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski [2007] NSWSC 440 at 411 [69].

f. Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at 422-3 [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ).

g. In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear: Schultz at 423 [19] (per Gleeson CJ, McHugh and Heydon JJ).

h. Significant weight will, as a general rule, be given to the place of the tort and, in personal injury matters, the place where the parties live: Ewin v BHP [2005] VSC 4 at [33]. Where these coincide, that will ordinarily resolve the question of the more appropriate forum, although other factors may still need to be given careful consideration to determine in which court it is in the interests of justice that the proceedings be heard: James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 361 [7].

i. It is also relevant if there is a coincidence of the law of the forum (lex fori) and the law of the place where the tort was committed (lex loci delicti) and this will avoid debate concerning substantive and procedural law: Schultz at 444 [99] (per Gummow J).”

Factors in favour of a transfer to Victoria

13. Counsel for the defendant relied on evidence contained in affidavits by her instructing solicitor, Ms Samantha Burris, filed on 8 October 2025 and 16 January 2026.

14. That affidavit material established that the teacher named in the Statement of Claim died on 29 July 2022. The affidavits refer to a letter from the plaintiff’s New South Wales solicitor which acknowledges that Victorian law applies to the resolution of the proceedings. A copy of the Supreme Court of Victoria Case Management and Listing Updates is annexed to Ms Burris’ first affidavit, which establishes that the Supreme Court of Victoria has a target of having all cases in its Institutional Liability List reach trial within 14 to 16 months of the first appearance being filed.

15. Ms Burris’ affidavits also refer to the defendant making enquiries to determine the identities of other staff members, including other teachers, principals or vice principals, who were at the school during the relevant period. The affidavits state that those steps are important in the present case because the teacher alleged to have been the abuser is deceased. Those enquiries to date have revealed 64 potential witnesses who were staff members at the school at the relevant time. Three of those have been located and identified. They are a 74-year-old man who is retired and currently resides in Victoria, a 73-year-old woman who is retired and resides near the New South Wales and Victorian border and a 70-year-old woman who is retired and resides in Victoria. Ms Burris’ second affidavit establishes that further enquiries have been made concerning the remaining potential witnesses, which revealed that seven have been generally identified. Those additional seven people range from 65 years to 81 years of age. They are all described as either currently residing in Victoria or having last known addresses in Victoria.

16. Ms Dargan submitted that the proceedings should be transferred to Victoria for a number of reasons.

17. Firstly, the tort allegedly occurred in Victoria, Victorian law applies and the defendant is located in Victoria. It was submitted that the proceedings have no material connection with the state of New South Wales and that considerable weight should be given to the fact that Victorian law governs the proceedings.

18. Secondly, it was submitted that a transfer would best accommodate the convenience of witnesses. It was argued that lay witnesses who may be called by the State would be essential to the proper defence of the claim, particularly because the teacher in question is now deceased. Other witnesses would be required to give evidence concerning the physical layout of the school, opportunities for teachers to be in private with students, school protocols and policies, the date on which the school first purchased computers that may have been available for playing computer games and any recollections of former staff of observations of interactions between the teacher and the plaintiff. It was argued that those matters are not tangential to the claim but directly relevant to whether or not there was an opportunity for the abuse to have occurred as alleged.

19. Counsel for the defendant conceded that although 64 persons had been identified generally, the State was not proposing they would call that number of witnesses. It was anticipated that a number of witnesses, possibly up to 19 or so, may be called on behalf of the defendant and it was anticipated that the majority, if not all of them, were of advanced age and residing in Victoria. The defendant submitted that there were significant logistical difficulties, inconvenience and increased expense involved in requiring such witnesses to travel to Sydney in order to give evidence. It was also submitted that, because the defendant’s witnesses were all likely to be elderly, the use of AVL facilities for them to give their evidence may be problematic.

20. The defendant argued that the plaintiff indicated in his evidence an intention to rely on two lay witnesses and his treatment providers, who all reside in New South Wales. However, the defendant submitted that there was no evidence that any of the plaintiff’s proposed witnesses had any vulnerabilities that would make interstate travel particularly difficult or burdensome. It also submitted that it was not uncommon practice for professional witnesses to give evidence by AVL or to travel interstate if required.

21. In relation to the plaintiff having to travel to Victoria to give evidence, the defendant submitted that it was not materially more inconvenient than the requirement for him to travel from suburban Newcastle to Sydney in order to give evidence and that any re-traumatisation in travelling to Court to give evidence was no different if the proceedings were held in one state or the other.

22. Thirdly, the defendant submitted that, because these proceedings were at a very early stage and because the Supreme Court of Victoria had protocols that such cases are expected to be heard within 14 to 16 months of an appearance being filed, there was no reason to believe that the determination of the matter would be delayed if it was transferred.

Factors against a transfer to Victoria

23. Senior counsel for the respondent relied on evidence contained in the affidavit by the plaintiff’s solicitor, Ms Elysia Marocchi, affirmed on 4 November 2025. That affidavit establishes that the plaintiff currently resides in suburban Newcastle and that he has received and continues to receive extensive treatment in Newcastle. The affidavit also establishes that his treatment providers are expected to be called as expert witnesses in the proceedings. In addition, the plaintiff’s solicitor, counsel and senior counsel all practice and reside in New South Wales.

24. Ms Marocchi’s affidavit also refers to the plaintiff’s intention to call two lay witnesses who are expected to give evidence of their observations of the psychological and psychiatric impact that the alleged abuse has had on the plaintiff. Both of those witnesses reside in New South Wales. The affidavit refers to material disadvantage to the plaintiff, in the form of increased costs, logistical difficulties, disruption to the plaintiff’s personal life and the risk of re-traumatisation, if the matter was to be transferred to Victoria.

25. Senior counsel for the plaintiff submitted that the proceedings had a connection with this state not simply because the plaintiff now resides here and chose to commence the proceedings here, but because much of his psychological and psychiatric damage has been experienced by him in New South Wales. Although it was accepted that the applicable law was the law of Victoria, it was submitted that evidence from lay witnesses and from expert witnesses in relation to the plaintiff’s damages would establish that most of his damages were sustained by him in New South Wales.

26. In response to the defendant’s submissions, the plaintiff submitted that many of the issues raised could be addressed by the tender of documents including maps, receipts for the purchases of computers and any written policies or protocols. It was also submitted that many of the issues raised by the defendant were tangential, unlikely to be the subject of cross-examination and unlikely to be of such significance that anything like 64 witnesses would be required.

27. Further, it was submitted by the plaintiff that the application was premature because the parameters of factual dispute between the parties were presently unknown. It was submitted that any application could be reconsidered by the defendant after the service of witness statements.

28. Senior counsel for the plaintiff submitted, with some degree of force, that the Court would not be convinced that witnesses in their 60’s, 70’s or 80’s were incapable of using AVL facilities or unable to travel interstate in order to give evidence.

Determination

29. The legal principles to be applied were not in dispute.

30. The principles drawn from Pilbara Ports Authority were agreed to be a fair and correct summary of the applicable principles.

31. In applying those principles, I accept that the plaintiff’s choice to commence proceedings in New South Wales is not determinative and that this factor does not require any specific emphasis or weight to be given to it. Instead, the Court is required to decide the issue on a fair balancing of all the factors defining the relevant interests of justice. Those interests are not the same as the interests of one party. Relevant factors include matters of convenience and expense, availability of witnesses, places where the parties respectively live or carry on their businesses and the law regulating the relevant proceedings.

32. This is not one of those cases where the preponderance of connecting factors clearly points towards one state jurisdiction as opposed to the other. As is often the case, there are competing factors, some of which favour the transfer to Victoria and others which favour leaving the proceedings in New South Wales. Although, as a general rule, weight is to be given to the place where the tort occurred, in the circumstances of this case, the place of the tort and the place where the damages have been incurred are not the same. Although the place where parties live is to be taken into account, it is also relevant that one of the parties, being the State of Victoria, is not an individual citizen.

33. Accordingly, no matter where the proceedings are held, the defendant can only act, appear or give evidence through its servants and agents. The plaintiff, on the other hand, as an individual, must physically relocate from his home in suburban Newcastle to wherever the proceedings are held. I am satisfied at the present time that the inconvenience and expense of him travelling to Court in Sydney is significantly less than the inconvenience and expense of requiring him, his barristers and solicitor, his lay witnesses and his expert witnesses to travel to the Supreme Court of Victoria. In that regard, I also take into account the significant imbalance in resources between the State of Victoria and the plaintiff as an individual. That imbalance in resources is relevant because the financial inconvenience to the defendant in participating in proceedings in New South Wales is relatively insignificant when compared to the financial inconvenience to the individual plaintiff in having to conduct proceedings outside his home state.

34. The plaintiff has a right and a need to be present for the whole of the hearing of his trial and it would appear inevitable, in light of the pleadings, that he will be required to give evidence and be cross-examined. It would also, at this stage, seem inevitable that the plaintiff’s lay and expert witnesses will be required for cross-examination.

35. It is also significant, in my view, that the defendant is highly unlikely to require 60 or so witnesses to be called in order to establish matters relating to opportunity to abuse, systems, protocols, layout, equipment and like matters. Those issues may, in part or even substantially, be established through the tender of documents rather than through calling dozens of witnesses. However, a full assessment of the need to call witnesses is, in my view, premature. I accept the plaintiff’s submission that until witness statements have been served, it is too early to determine what factual issues are in dispute and how many witnesses may be required to give evidence.

36. The question of the applicable law should not be elevated to the status of a trump card, decisive in every case: Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab [2016] NSWSC 1749. Although the law applicable to this case is the law of Victoria, there are no reasons why that law cannot be properly applied to the proceedings efficiently dealt within the Supreme Court of New South Wales.

37. The other factor which I have given considerable weight to is that none of the proposed witnesses called by the defendant are suggested to have actually witnessed any indecent assault by the teacher on the plaintiff.

38. I have given careful consideration to the evidence and the submissions made by both parties. Balancing the interests of the parties and the practical realities of this litigation, I am not persuaded that it is currently in the interests of justice to make the transfer order sought. However, that position may change after the service of witness statements. For any later transfer application that the defendant may wish to bring, much will depend on the evidentiary issues raised in those statements.

Orders

39. For the above reasons, I make the following orders:

40. The Notice of Motion is dismissed.

41. The defendant is to pay the plaintiff’s costs.

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