Woolworths Limited v Walker

Supreme Court of NSW|2012-08-08|Before: Johnson J

Judgment 1JOHNSON J: By Summons filed 27 July 2012, the Plaintiff, Woolworths Limited ("Woolworths") makes application for transfer to Victoria under the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Cross-Vesting Act") of civil proceedings commenced in the District Court of New South Wales by the Defendant, John Robert Walker.

2By Statement of Claim filed in the Albury Registry of the District Court of New South Wales on 3 July 2012, Mr Walker sues Woolworths for damages arising from a slip and fall incident on 26 November 2010 at the Safeway Supermarket in Wodonga, Victoria. Mr Walker alleges that a rainstorm had occurred on that day and, as a result, rainwater had entered the premises through the store entrance. It is alleged that store employees barricaded one entrance to the store and removed rainwater from the floor at that entrance, but did not barricade nor remove rainwater from another entrance used by Mr Walker to enter the premises. 3Mr Walker alleges that he slipped on the wet floor and suffered injury. According to the Statement of Claim, it is alleged that Woolworths owed duties to Mr Walker at common law, under s.14B Wrongs Act 1958 (Vic) and s.23 Occupational Health and Safety Act 2004 (Vic) and that Woolworths breached its duty of care to Mr Walker in various ways particularised in the Statement of Claim, thereby giving rise to an entitlement to damages. 4The Statement of Claim also recites the fact that on 5 April 2012, a Medical Panel certified, for the purposes of s.28LZG(2)(a) Wrongs Act 1958 (Vic), that Mr Walker had suffered a degree of impairment in excess of five percent after having assessed Mr Walker's impairment in accordance with that Act, and that Mr Walker was entitled to institute and prosecute proceedings for the recovery of damages for pain and suffering. 5The Statement of Particulars filed by Mr Walker in the District Court on 3 July 2012 indicated a claim for general damages. No claim is made by Mr Walker for past or future economic loss. 6Mr Walker is now 64 years' old. He is in receipt of a disability support pension. He lives in a caravan in the backyard of a friend in North Albury. 7A claim is made for future care on the basis of domestic cleaning and home maintenance at the rate of $35.00 per hour for six hours per week for life. 8A claim for past out-of-pocket expenses in the sum of $200.00 is identified in the Statement of Particulars, as well as a claim for the cost of a future operation and future ongoing treatment expenses estimated at $15,000.00.

9Woolworths seeks orders: (a)that Mr Walker's District Court proceedings be uplifted to the Supreme Court of New South Wales under s.8(1)(b)(ii) of the Cross-Vesting Act; (b)that the District Court proceedings be transferred to the Supreme Court of Victoria under s.5(2)(b)(ii)(C) of the Cross-Vesting Act (with the intention that they then be transferred to the County Court at Wodonga); and (c)that Mr Walker pay the costs of the application by Woolworths. 10The affidavit of Cameron Roberts sworn 26 July 2012 was read in support of Woolworths' application. The affidavit of John Robert Walker sworn 1 August 2012 was read in Mr Walker's case in opposition to the application.

11The relevant provisions of the Cross-Vesting Act were considered by the High Court of Australia in BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400. 12In short, if it appears to the Court that it is in the interests of justice that the proceedings be determined by another designated court, then this Court "shall transfer" the proceedings to that other court (at 421 [14]). 13The 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. Even so, the interests of the respective parties (including issues of cost and efficiency) will arise for consideration (at 421 [15]). 14The place where the tort was committed is a consideration with the ultimate question being which is the more appropriate forum, upon a fair balancing of all the factors defining the relevant "interests of justice" (at 422-425 [17]-[25]). 15Mr Walker's choice of forum is a neutral consideration (at 425 [25]). 16The factors that a court may consider when determining the more appropriate forum include the personal circumstances of Mr Walker, the regular invocation of the jurisdiction of the court, any delay caused by the transfer, the particular expertise of the court, the place where the tort was committed, the availability of the court for the hearing, costs considerations, evidentiary considerations and whether there is "forum shopping" (at 424 [22]).

A "Criminal Matter"? 17I should deal initially with a legal question raised by Mr Richards, counsel for Woolworths. He submitted that Mr Walker's reliance in the Statement of Claim upon a breach of duty of care by reference to s.23 Occupational Health and Safety Act 2004 (Vic) involved an allegation by Mr Walker of the commission of an indictable criminal offence so as to constitute a "criminal matter" for the purpose of s.4(5) Cross-Vesting Act. 18He submitted that s.4 Cross-Vesting Act vests jurisdiction concerning original and appellate jurisdiction with respect to Victorian State matters in the New South Wales Supreme Court, but that the operation of s.4(5) means that no jurisdiction is vested with respect to criminal matters. It was submitted, in effect, that Mr Walker's proceedings involved, at least in part, a Victorian "criminal matter" which could not be determined by a New South Wales court. 19Mr Judd, counsel for Mr Walker, indicated that it was no longer intended to rely upon the particularised breach of duty by reference to s.23 Occupational Health and Safety Act 2004 (Vic) so that the issue could be placed to one side. 20As the submission was advanced, however, I propose to refer to it briefly. The submission advanced by Woolworths is misconceived. Mr Walker has commenced civil proceedings in the District Court of New South Wales for damages arising from the alleged negligence of Woolworths. His pleaded reliance upon s.23 Occupational Health and Safety Act 2004 (Vic), which creates an indictable offence capable of being dealt with summarily in Victoria, does not render Mr Walker's civil proceedings a "criminal matter" for the purposes of the Cross-Vesting Act. 21In any event, s.34 Occupational Health and Safety Act 2004 (Vic) provides, in effect, that no right of action in civil proceedings is conferred in respect of a contravention of (amongst other provisions) s.23 of the Act. It was not open to Mr Walker to rely upon this provision in the first place. 22Correctly, reliance upon the provision is now abandoned.

Consideration of Factors Which Bear Upon the Interests of Justice in this Case

23Submissions were made to the Court by reference to a range of factors which were said to bear upon the interests of justice in this case, for the purpose of the cross-vesting application. 24I have had regard to the relative proximity of Wodonga, where it is said any County Court hearing would take place, to Albury, the New South Wales District Court venue. The distance between these two places is about 6.6 kilometres. 25Mr Walker resides in North Albury and thus is relatively close to court venues at Albury and Wodonga. 26There is no evidence as to the residential locations of any witnesses for Woolworths although it might be inferred that, at least in November 2010, they resided in the Wodonga area. 27Mr Walker's general practitioner, Dr Glen Mobilia, has rooms in Jindera, a location close to Albury. MRI scans were undertaken on Mr Walker at the Albury Base Hospital. The Registrar associated with Mr Walker's orthopaedic specialist, Dr Elie Khoury, examined Mr Walker in Albury. There is no evidence as to the location of any medical practitioners who have examined, or may yet examine, Mr Walker on behalf of Woolworths. 28A significant matter advanced by Mr Judd is the impecuniosity of Mr Walker. He has instructed Slater & Gordon Lawyers at their Albury office. If the proceedings are transferred to Victoria, then it would be necessary for any subpoenas for production of documents or the attendance of witnesses, medical or otherwise, to be the subject of applications for leave under the Service and Execution of Process Act 1992 (Cth). Mr Judd submitted, without demur from Mr Richards, that the practice in the County Court of Victoria involves the calling of medical practitioners to give evidence, rather than the primary practice in New South Wales courts whereby reports are relied upon, subject to the need for cross-examination. Costs arising from this feature appear to be a not-insignificant aspect of the litigation given the lack of means of Mr Walker. 29Although civil proceedings for damages in the County Court of Victoria regularly proceed by way of jury trial, Mr Richards made plain that, if transfer occurred, Woolworths would not seek a jury trial in this matter and that the hearing would proceed before a judge sitting alone. Accordingly, there is a similarity between the form of hearing involved in each State, although there is a prospect of a longer hearing in Victoria, with greater reliance upon oral medical evidence. 30Mr Richards advanced a submission arising from the reference to s.23 Occupational Health and Safety Act 2004 (Vic). Although Mr Judd indicated that reliance upon this provision had been abandoned, Mr Richards raised the scenario that a witness or witnesses for Woolworths may, in the face of that provision, seek to invoke the privilege against self-incrimination, giving rise to consideration of the issue of a certificate under s.128 Evidence Act 1995 (NSW). In these circumstances, Mr Richards contended that any certificate issued by a New South Wales court may not provide appropriate protection to a witness with respect to self-incrimination or exposure to civil penalty in Victoria, with a contrast being made by reference to s.128 Evidence Act 2008 (Vic). I do not consider this submission to be a realistic one in the circumstances of this case. On the description of the circumstances surrounding Mr Walker's slip and fall accident, it is difficult to see any reasonable and realistic basis upon which any witness could demonstrate reasonable grounds for an objection to answer questions upon the grounds that the evidence may tend to prove that the witness had committed an offence or was liable to a civil penalty. With respect, I think the submission is somewhat farfetched and does not assist Woolworths on the present application. 31It is the case that a New South Wales court will be called upon to apply Victorian law, including the Wrongs Act 1958 (Vic). In this regard, Mr Richards contended that the Medical Panel process giving rise to the issue of a certificate on 5 April 2012 in favour of Mr Walker raised aspects of Victorian law, which were more appropriate for courts of that State to consider and determine. I am not persuaded that this factor is of particular assistance to Woolworths. The effect of the certificate of the Medial Panel seems clear, and leaves open the ability for Mr Walker to seek damages for pain and suffering. Beyond that, there is no aspect of Victorian law which was suggested to render these proceedings more suitable for resolution in a Victorian court than a court of this State. 32Mr Judd submitted that Mr Walker's case is, in truth, a relatively small claim, with no claim for past or future economic loss and with a claim for general damages and the other components referred to in the Statement of Particulars. Mr Richards submitted that Mr Walker's claim was capable of being a substantial one. Upon the basis of certain assumptions, he submitted that the future care claim (at its highest) was capable of exceeding $155,000.00. The combination of that with the sum of $15,000.00 for future treatment expenses, taken with an award of general damages, would not be small. I acknowledge that Mr Walker's claim, at its highest, may be seen as a not insubstantial one. However, there is no claim for past or future economic loss and the practical realities of this litigation suggests a relatively modest quantum if Mr Walker is successful. This aspect is relevant to issues of cost, efficiency and convenience for the purposes of the present application. 33There is no evidence before the Court concerning the likely delay before any hearing came on in the County Court at Wodonga or the District Court at Albury. Mr Judd informed the Court that, in his experience of the District Court at Albury, a hearing date later this year was likely. Clearly, if the orders sought by Woolworths are made, it would be necessary for the proceedings to be transferred to the Supreme Court of Victoria, and then on to the County Court of Victoria before the next procedural step could be taken, involving (presumably) the filing of a Defence by Woolworths. All of this would take time and contribute to the delay of the proceedings. This aspect is of assistance to Mr Walker on this application. 34I am satisfied that there are significant disadvantages, cost consequences and inconvenience to Mr Walker if his civil proceedings are transferred to Victoria. He is a litigant without any significant means and that aspect is relevant to the Court's determination. 35There is no evidence of any inconvenience to Woolworths, or any of its witnesses, if the proceedings remain in the District Court at Albury. I have regard to the fact that Woolworths is a large corporation, no doubt with appropriate resources to participate in this litigation at Albury or Wodonga. 36Having weighed up all the competing considerations, I am not persuaded that it is in the interests of justice that the proceedings be transferred to Victoria.

37In the event that Woolworths did not succeed in this application, Mr Judd sought an order that Woolworths pay the costs of Mr Walker of the Summons. The ordinary rule is that costs should follow the event and Woolworths have not succeeded in obtaining the relief sought in the Summons. Mr Walker has appeared to successfully resist the relief sought. On the face of it, Mr Walker is entitled to an order for costs in these circumstances. 38However, there is an additional feature which bears upon the question of costs. This application was referred by the Registrar to me, as Common Law Duty Judge, on Monday, 6 August 2012. That date was the first return date of the Summons. Correspondence before the Court indicates that the solicitors for Mr Walker had communicated an intention, prior to that date, to oppose the application. 39The solicitors for Mr Walker attempted to file his affidavit on 1 August 2012, however, it appears that the Registry would not accept the filing of the affidavit as there was no order permitting that step. Accordingly, the affidavit was returned to Mr Walker's solicitors upon the basis that it should be filed, by leave, in Court. 40Counsel who attended on behalf of Mr Walker on 6 August 2012 (not Mr Judd) expected that the application would be stood over until another day for hearing, given that it was the first return date of the Summons. Mr Richards was ready to proceed with the application which had been referred by the Registrar to me for hearing as Duty Judge. The Court was in a position to hear the matter on that day, but counsel for Mr Walker was not ready to proceed to hearing. The matter was adjourned to 8 August 2012 for hearing, and the hearing proceeded on that day. 41Mr Richards submitted that Woolworths should have some protection as to its costs of 6 August 2012 in these circumstances. This is not a case where the legal representatives for Mr Walker contacted the legal representatives for Woolworths prior to 6 August 2012, proposing that the matter be mentioned and stood over until another day for hearing. Accordingly, Mr Richards came to Court on the return day ready for the hearing to proceed. 42Woolworths should not have to pay Mr Walker's costs for 6 August 2012. The justice of the case, on the question of costs, will be met if the order for costs which I propose to make in favour of Mr Walker excludes the costs of 6 August 2012. In effect, there will be no order as to the costs of that day. 43I make the following orders: (a)The Summons filed 27 July 2012 is dismissed. (b)I order Woolworths to pay Mr Walker's costs of the Summons, excluding the costs of the appearances before the Registrar and myself on 6 August 2012.

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: 15 August 2012

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