Whitelum v The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland

Supreme Court of NSW|2017-04-12|Before: Rothman J, Garling J

Solicitors: Porters Lawyers, Canberra (Plaintiff/Respondent) HWL Ebsworth (Defendant/Applicant) File Number(s): 2016/310697

Judgment

Before the Court is an application to transfer the proceedings in this matter from the Supreme Court of New South Wales ("NSW") to the Supreme Court of Queensland ("Queensland Court"), pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("the Act").
By way of brief background, the Statement of Claim filed on behalf of the plaintiff, Shirley Anne Whitelum, on 18 October 2016, seeks damages in negligence for alleged physical and sexual abuse perpetrated whilst Ms Whitelum was a resident at the St Vincent's Residential Care Facility ("St Vincent's") in Nudgee, Queensland, between about 11 March 1955 and 6 February 1965. Ms Whitelum was born in July 1951. The Statement of Claim seeks damages under the principles of vicarious liability. The defendant is the owner and operator of St Vincent's. The physical and sexual abuse is alleged to have been perpetrated principally by Sister Gregory, by other Sisters, and other residents at the facility.
The Motion currently before the Court was filed by the applicant/defendant (hereinafter referred to as the defendant) on 24 January 2017, seeking the proceedings to be transferred to the Queensland Court. Ms Whitelum opposes the application.

Defendant

The defendant relies on three Affidavits sworn by Laurence Matthew Rogencamp as evidence for the application. The Affidavit of Mr Rogencamp sworn 19 January 2017 provides that Mr Rogencamp is principal of the law firm acting as legal counsel for the defendant and that his firm has, since 1998, responded to, and settled, approximately 130 similar claims relating to St Vincent's Orphanage, Nudgee for the period between 1940 to 1975, the bulk of which relate to the 1950s and 1960s. The same firm, at the time of swearing the Affidavit, was responding to 51 active proceedings in relation to St Vincent's Orphanage, Nudgee. Mr Rogencamp attests to the fact that the business location of the defendant, and the location of the records of the defendant, is Brisbane, and that the trustees of the defendant all live and work in Brisbane.
Mr Rogencamp indicates that his law firm, having conducted enquiries into the persons named in the statement of claim, had been, at the time of swearing the Affidavit, unable to locate any living witnesses either employed by the defendant during the relevant period, or with personal experiences of the events that are the subject of the allegations.
A further Affidavit of Mr Rogencamp is relied on by the defendant, sworn 20 March 2017 and filed 22 March 2017. The Affidavit refers to the letter at Annexure G to the Jason Parkinson Affidavit and states that from the date of that letter, the position of the defendant in relation to potential negotiations was that further information, including additional evidence, particulars or submissions with respect to available evidence, was required before meaningful negotiations might be entered into.
Mr Rogencamp provides that if the proceedings are transferred to the Queensland Court, the defendant undertakes not to raise any procedural points under the Personal Injury Proceedings Act 2002 (Qld) ("PIPA") and further, to pay for the reasonable expenses of the plaintiff and her legal representatives to attend negotiation discussions.
The defendant, at hearing, outlined the common ground, or agreement, between the two parties, being that Ms Whitelum resides in NSW; that the alleged conduct occurred in Queensland; that the substantive law that is to be applied is that of Queensland; and that the defendant, at the stage of the hearing, had been unable to locate any living witnesses employed by the defendant at that time.
There remain a number of issues of contention between the parties. The defendant maintains that the matter is not well advanced within the NSW court system, and, despite agreement that the correct entity has been sued, the defendant maintains that in relation to the conduct (which is said to have occurred in another orphanage) that orphanage is a distinct legal entity. The defendant also does not agree that the defendant ever operated outside of Queensland.
The defendant does not agree with the characterisation made by the plaintiff that the letter of 9 May, which was sent by Mr Rogencamp to Porters Lawyers (Annexure G to the Affidavit of Jason Dean Parkinson affirmed 9 February 2017), implies that the matter will need to be litigated. The defendant submitted that the letter states that the matter "may" need to be litigated and that the defendant is open to the usual mediation as the matter doesn't necessarily need to be litigated to completion.
The defendant submitted that, in relation to mediation, the provisions in PIPA are an important factor for the Court to consider. The defendant further submitted that the point raised by the plaintiff that the matter is likely to be litigated in relation to the possible issues of credibility, has been "over-aired".
The letter itself refers to the fact that this claim is the only claim of female to female sexual abuse and that there is no one alive who can verify the claims. It goes on to say that: "In light of this, our client's position is that it is not prepared to entertain this claim (or similar claims) as one that would be dealt with by negotiation leading to settlement. If your client can support the allegations with further information then this position could be considered. Otherwise that may be a claim which your client will need to litigate."
Although the defendant does not have any medical evidence or a defence yet prepared, it is submitted that the defendant has not yet attended to this because it is still not clear where the proceedings are to be held.
The following undertakings or concessions were made by the defendant, should the matter be transferred to the Queensland Court. The defendant undertook that it will not raise any procedural points under PIPA, which would prevent Ms Whitelum in maintaining the proceedings, and that the defendant will pay all reasonable costs of the plaintiff and her legal representatives to attend Queensland for the compulsory pre-litigation proceedings under PIPA if the matter is transferred. Further, the defendant submitted that the Court should strongly consider that compulsory pre-litigation proceedings would occur under PIPA, noting the importance of attempting the resolve the proceedings on this basis rather than litigate, especially given the psychiatric injury to Ms Whitelum.
The defendant conceded that although Ms Whitelum has claimed and received benefits under the redress scheme operating for victims of sexual abuse, this does not impact on her rights in respect of these proceedings. Yet, the defendant says, it is a factor that the Court can take into account.
In consideration of the relevant factors, the defendant submitted that the proceedings should be transferred, because the alleged conduct occurred in Queensland, and no other state, and the Court will be required to apply the law of Queensland. The defendant submitted that the proceedings are not at an advanced stage in the Supreme Court of NSW and that both the defendant's business and records are carried out and located in Queensland.
Further, if any witnesses are able to be located, the defendant submitted that it is likely that they will be residing in Queensland. The defendant submitted that it is not known where the sister of Ms Whitelum, a likely witness, currently lives, and that there is nothing to say that Dr Phillips (a NSW resident and author of a medical report relied on by the plaintiff) will give evidence.
It was also submitted that the only connection that the matter has with NSW is that Ms Whitelum resides there (Central Coast), and that she is reluctant to go back to Queensland. The place of residence of the defendant is Queensland.
The Court raised doubts regarding the strength of this latter factor, given that the defendant is a business and whether it would be any more difficult for it, were the matter heard in NSW. The defendant also submitted that the fact that Ms Whitelum resides in NSW and has a reluctance to travel to Queensland can be overcome with technology, such as video links, if necessary.
The defendant submitted that the impact of the hearing on Ms Whitelum, in her capacity as a carer for Ms Stevens, would be the same whether the hearing is in NSW or Queensland.
A relevant consideration for the Court to consider, the defendant submitted, is the fact that the matter is a personal injury matter, in which the plaintiff has suffered psychiatric injury, and that the matter should be resolved as quickly as possible, despite the fact that the condition is not life threatening. The defendant submitted, however, that if Ms Whitelum's mental health is to be impacted by attending the hearing in Queensland, this factor would need to be supported by medical evidence.
In submitting that the "most appropriate forum" for the matter to be heard is the Queensland Court, the defendant made reference to the medical evidence so far provided by the plaintiff, being the report of Dr Jonathon Phillips, having been prepared in accordance with the rules of Uniform Civil Procedure Rules 1999 (Qld).

Plaintiff

The plaintiff relies on an Affidavit of Shirley Anne Whitelum affirmed on 3 February 2017 and filed on 13 February 2017, outlining the background of abuse that is claimed in the proceedings and the ongoing impact she suffers in her life, including in her employment and mental health. Ms Whitelum's Affidavit annexes an 'Application for payment under the Redress Scheme for former residents of Queensland's children's institutions' which was received by the Department of Communities on 20 December 2007, as well as a report of Psychiatrist Jonathan Phillips dated 30 November 2016, having assessed Ms Whitelum on 28 June 2016. It is unnecessary to go into any great detail about the abuse alleged by Ms Whitelum, except to say that there is no doubt that the alleged circumstance of abuse identified by Ms Whitelum and the ongoing impact described are horrific.
The plaintiff also relies on an Affidavit of Jason Dean Parkinson, affirmed on 9 February 2017 and filed on 13 February 2017, which, amongst other things, refers to several other claims for which the plaintiff's firm has received instructions against the defendant for alleged abuse at St Vincent's from 1955 to 1965.
A report has been prepared by Dr Phillips and provides detail of the ongoing impact of the alleged conduct, such as: "She has recurrent episodes of anxiety, minimised when she is caring for another person. She noted a desire to "escape" from something not understood by her. She noted also a sense of being "light" within her head and "sick" within her stomach. She described an acceleration of her heart rate. She advised, however, that the overriding experience was one of unfocused fear. She feels unable to do any things in life. She said that she can no longer work as a teacher's aide because of her fear. She regrets this change in her life. She is avoidant in her behaviour, and generally tends to keep away from others. She has very few friends currently. She sleeps poorly, with recurrent nightmares (thematically related to her early experiences of abuse). She noted also situations in her dreams where she was chased." (Report of Dr Phillips, par 35).
Dr Phillips found that Ms Whitelum is suffering from a number of conditions as a result of the reported abuse at St Vincent's: "Whilst I believe it is highly likely that Ms Whitelum suffers from post traumatic stress disorder, I am unable to verify the diagnosis on the basis of the guarded history which she gave me. However, it can be accepted that the claimant suffers from an adjustment disorder with mixed anxiety and depressed mood DSM-5 309.81. The disorder is a direct outcome of adverse effects operating in the claimant's life, with general neglect and physical and sexual abuse at St Vincent's Orphanage having played and pivotal and material role in the genesis of this disorder." (Report of Dr Phillips, par 71).
Dr Phillips continues to say: "There is a diagnosis widely accepted by psychiatrists, but not so far part of DSM nosology, which will offer a better description of Ms Whitelum's problems. This is the entity of a chronic demoralisation disorder. There should be no doubt that that adverse stressors beginning whilst the claimant was a resident at St Vincent's Orphanage began the process of demoralisation, and this has been exacerbated by stressors later in life. The effects of chronic demoralisation have interfered in all domains of the claimant's life, and have prevented her from achieving the levels which have otherwise been available to her". (Report of Dr Phillips, par 73).
Ms Whitelum, in her Affidavit, outlines her concern in returning to Queensland if the matter were to be transferred: "I am deeply concerned and afraid to travel to Queensland. The memories are too great to bear. I am certain that going back to Queensland will only make me worse. The last time I was in Queensland was before my mother died, which was shortly after I saw Sister Gabriella at Wynnum". (par 96(r)).
It is submitted by the plaintiff that the moving party bears at least a persuasive onus of demonstrating that it is more appropriate that the matter is heard in the other Court: Lend Lease Property Management and Construction Pty Ltd [2011] NSWSC 739 at [11] and [14] per Einstein J. The plaintiff also relied on the decision of British American Tobacco Australia Ltd v Pete Gorgon [2007] NSWCA 230 per Brereton J at [44] in relation to the relevant factors to be taken into account, including cost and efficiency of proceedings and what have been described as "connecting factors" including convenience and expense, which consists of availability of witnesses and where the parties carry on their business. In relation to the location of documents, the plaintiff submitted that this has no real bearing on the matter, given that documents, or copies thereof, are readily transportable in the present-day.
It is submitted that although the defendant makes reference to the number of claims responded to by his firm concerning allegations against St Vincent's and many other current claims, Mr Rogencamp has been unable to locate anyone who could potentially be a witness for the defendant in the proceedings brought by Ms Whitelum. Further, the plaintiff asked the Court to note that the undertaking made by the defendant, in relation to meeting the reasonable expenses of Ms Whitelum and her legal representatives, is limited to "the purposes of attending compulsory pre-litigation procedures".
The plaintiff also relies on the Affidavit of Ms Whitelum, which provides details of some of the abuse to which she was subjected, such as: "To this day, I have problems in confined spaces and even going into an elevator causes me a problem, and I become extremely anxious. Since St Vincent's, I have been terrified entering an aircraft or a train. I become physically sick when I attempt to do this." (par 38).
The plaintiff provides details of Ms Whitelum's current living arrangements, noting that she lives in the premises of, and is the sole carer for, Ms Stevens on the NSW Central Coast, there being no other family able to care for Ms Stevens. Ms Whitelum receives medical, including psychological, support and treatment. It is submitted that given the circumstances, it would be most difficult for Ms Whitelum to travel to Queensland, and for such time, Ms Stevens would not have someone to care for her. It is submitted that Ms Whitelum also does not have the means to fund her travel and accommodation and is effectively penniless: see Western Australia v Duncan [2011] NSWSC 1320 at [10]-[16] and Kellow v Irish Murphy's Pty Ltd [2010] VSC 239 at [20]. It is also submitted that additional expenses are expected should the matter be transferred to the Queensland Court.
At the time of hearing the notice of motion, the defendant had not filed a defence, nor requested particulars. Nor had they required Ms Whitelum to be medically assessed. The plaintiff submitted that, if the matter were to be transferred to Queensland, further delay would occur whilst PIPA requirements are satisfied and that the timely disposition of any matter is something central to the interests of justice. It is further submitted that requests have been made to the defendant for any documentation in relation to the allegations and no such documentation has been produced.
It is submitted on the basis of Dr Phillips' report that Ms Whitelum's mental health will be materially and adversely affected should she be required to travel to Queensland, particularly for the hearing of this matter, given the subject material and her memories of Queensland. The plaintiff submitted that this is a powerful feature that should be given significant weight in the application and that it would not be in the interests of justice to make an order that would likely or probably have an adverse impact on a party's health.
Notably, the plaintiff makes reference to the concern and fear that Ms Whitelum has in returning to Queensland: "The memories are too great to bear. I am certain that going back to Queensland will only make me worse." (Affidavit of Shirley Anne Whitelum, par 96). The plaintiff, relying once more on Dr Phillips' report, submitted that sending the matter to Queensland would put the plaintiff at a risk of deterioration to her mental health.
The plaintiff referred to the case of O'Donnell v Nage Holdings Pty Ltd [2013] VSC 115 within which Lloyd v Riverland Regional Health Service Inc [2010] VSC 350 was cited: "27 Although I have no doubt that the Supreme Court of South Australia would be able to hear the plaintiff's case expeditiously and efficiently, and the plaintiff may be able to obtain financial assistance from the relevant South Australian scheme to assist her with the litigation, the requirement to transfer the proceedings to Adelaide introduces a real element of uncertainty for the plaintiff. It is uncertain whether her solicitor would be prepared to act for her in Adelaide; her prospects of obtaining financial assistance for litigation in South Australia are equally uncertain. She may well be discouraged from prosecuting her cause of action if she has to start afresh to secure the assistance that she needs." The plaintiff referred to this portion of Lloyd, supra, to submit that this is critically relevant in the current proceedings.
The plaintiff submitted that despite the substantive law of Queensland being applied, it is similar law to the law applied in NSW. Further, there is nothing peculiar about Queensland law that is to be applied.
In relation to the convenience of witnesses, the plaintiff submitted that there are (or were, at the time of the hearing), no Queensland residents identified as witnesses to give evidence and a number of NSW based witnesses that are likely to be called, such as the plaintiff, Dr Phillips and Ms Whitelum's sister. The plaintiff further submitted that it is likely to be a contested hearing and issues of credibility generally, may arise, meaning that most witnesses would need to give evidence in person.
The plaintiff submitted that this Court has the power to order the parties to mediation, rather than relying on transferring the matter to Queensland for that purpose.
In relation to costs, there is a risk of non-recoverable costs, if the matter were to go to the Queensland Court and Ms Whitelum may be unable to meet the expenses of travelling to Queensland to continue the claim. There is also the aspect of the arrangement with her current legal representative, which, at this juncture, is not available in Queensland.

Principles to be applied

Section 5(2)(b)(iii) of the Act reads as follows: "5 Transfer of proceedings (1) Where: (a) a proceeding (in this subsection referred to as the 'relevant proceeding') is pending in the Supreme Court, and (b) it appears to the Supreme Court that: (ii) having regard to: (A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court, (B) the extent to which, in the opinion of the Supreme 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 Commonwealth and not within the jurisdiction of the Supreme 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 the Federal Court or the Family Court, as the case may be, the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be."
I dealt with the issue of cross-vesting in Skandar (aka Makari) v BSM Group Pty Ltd (as trustee for the BSM Discretionary Trust) [2017] NSWSC 610, within which I set out the following: "[19] The principles to be applied in relation to the operation of the Act are well known and well established: see BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61. The plurality judgment (Gleeson CJ, McHugh and Heydon JJ) at [14] sets out the principles in the following way: '[14] In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. 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.' [20] Also instructive on the question is the passage at [77] of BHP Billiton, supra, in the reasons for judgment of Gummow J, in which his Honour discusses, amongst other issues, the terms "the interests of justice" and "otherwise in the interests of justice". [21] As has been expressed on a number of occasions and in various decisions, the scheme embodied in the Act and its counterparts in the Commonwealth and other States does away with the previous requirements of the common law that hindered the efficient resolution of justiciable controversies between parties and imposed a relatively heavy onus on persons seeking a transfer from the court in which proceedings were initiated. [22] Now, rather than requiring a moving party to show that the court is an inconvenient forum, it is necessary only to show that the tribunal to which the proceedings are to be transferred is a "more appropriate" tribunal or that the proceedings are more appropriately dealt with in the transferee tribunal as distinct from continuing in the court in which they have been commenced."
The defendant provided the Court with the relevant principles to be applied as identified by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, from which the defendant outlined the relevant factors as: 1. The place of the tort; 2. The residence of the parties, or in the case of a corporation, where it carries on its business; 3. The convenience of the parties or witnesses; 4. The law governing the proceedings; 5. The experience of a court to provide an efficient and speedy trial; and 6. The condition of the parties in personal injury cases such as if the parties' life expectancy requires speedy resolution. (Defendant's written submissions, par 9). This list is not exhaustive and the factors to consider will of course vary between matters.

Consideration/application of the principles

It is the task of the Court to determine where the interest of justice lies in relation to this application. Cases considering the provisions are instructive, but depend on the individual facts and circumstances of each case. It is the principles and factors already outlined, which must be considered in order to determine the most appropriate place according to the interests of justice.
In relation to the matter of the convenience of witnesses and the like, the Court is of the view that the plaintiff would be a witness whose credibility may be questioned and therefore the giving of evidence via audio-visual means may not suffice: see Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 at [21]. The Court is of the view that this may make location of witnesses, despite modern technology, a matter which comes into consideration. Further, the plaintiff, as the moving party and an individual, ought to have the unfettered ability to observe the proceedings she has brought.
The Court is of the view that were the matter heard in NSW, it may be heard in Gosford, and that even if it were heard in Sydney, Ms Whitelum would have the ability to travel to and from Court each day of the hearing, meaning that alternative care arrangements for Ms Stevens would only need to be made during the day. The same cannot be said if the matter were in Queensland.
In relation to the contention that medical evidence would be required to support the submission that Ms Whitelum's mental health would be impacted by attending the hearing in Queensland, the Court takes into account the finding of Dr Phillips that it is likely that Ms Whitelum suffers post-traumatic stress disorder, although also noting the qualification that Dr Phillips was unable to verify the diagnosis due to what he described as a "guarded history". It is a well-established sequela of PTSD to fear return to the scene or similar surroundings (see DSM-5 at 271).
Further, the defendant is able to be represented in NSW, and is currently represented in NSW through alternate legal counsel to those located in Queensland: see Hughes v Whittens Group, supra at [22].
In Hughes v Whittens Group, supra, Button J dismissed the motion seeking to transfer personal injury proceedings from NSW to WA in circumstances where his Honour considered that the fragility of, and risk of endangering, the mental health of the plaintiff outweighed the disadvantage of a judge of this Court determining the laws of another state and therefore found that the interests of justice lay with the matter remaining in NSW: Hughes v Whittens Group, supra at [31].
The mental health of the plaintiff as reported by Dr Phillips and affirmed in Ms Whitelum's Affidavit provide insight into the state of her mental health concerns. The Court notes, and takes into account, the concerns submitted on behalf of the plaintiff, particularly in terms of her express aversion for travelling to Queensland for any purpose.
Another aspect of the matter is that the laws that are to be applied, and the location of the alleged abuse, are Queensland. These factors weigh heavily on the determination at which the Court must arrive. The Court, in Wallaby Grip Limited v Maclean [2017] NSWSC 246, considered that the starting point at which a determination under section 5(2)(b)(iii) must begin, is that the jurisdiction within which the alleged tort occurred is the jurisdiction in which the matter ought be determined: at [20]. In those reasons, Button J noted that all other things being equal, rather than a NSW judge applying the law of another jurisdiction, the preference would be for a Queensland judge to apply the law of Queensland, as it was in Wallaby Grip Limited v Maclean, supra, to apply Queensland law: at [25].
I respectfully agree with the judgment of Button J in Wallaby Grip Limited v Maclean, supra. It is important that, in the effective management of litigation, the matter is heard in the forum in which it is most likely to be resolved in light of the overriding consideration, being to facilitate the just, quick and cheap resolution of the real issues between the parties: s 56 Civil Procedure Act 2005.
The Court takes into account the reported harm suffered by the plaintiff and the circumstances in which she is currently employed and housed. The Court considers that the combination of the mental health of the plaintiff and the potential risk, based on the aversion of which there is evidence that the plaintiff may discontinue proceedings should the matter be referred to the Queensland Court, outweighs the benefit of the matter being heard in the jurisdiction in which the tort is said to have occurred and in which the law is to be applied. It is therefore in the interests of justice that the motion to transfer the proceedings be dismissed and the matter be relisted before the list judge to set a timetable for proceedings to ensure the just, quick and cheap resolution of the matter for both parties.

Decision/orders

For the foregoing reasons, the Court makes the following orders: 1. Motion dismissed; 2. The defendant pay the plaintiff's costs of and incidental to the motion; 3. The matter be listed before Garling J for further directions at 9.30am on 16 February 2018.

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: 02 February 2018

Personal Injury Proceedings Act 2002(Qld)

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (12)

Cited By (1)