Peter Robert Dawson, Stephen Marchant and Graham Brown v Sharon Michelle Baker, Graham Brown and Council of the Shire of Oberon and Stephen Marchant [1994] ACTSC 62 (22 June 1994)

SUPREME COURT OF THE ACT

PETER ROBERT DAWSON, STEPHEN MARCHANT AND GRAHAM BROWN v. SHARON MICHELLE
BAKER, GRAHAM BROWN AND COUNCIL OF THE SHIRE OF OBERON AND STEPHEN MARCHANT
Nos. SC415, 719 and 779 of 1993
Number of pages - 23
Jurisdiction of Courts - Jurisdiction of Courts (Cross-Vesting) Act 1987
(1994) 120 ACTR 11

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ(1), GALLOP(2) AND HIGGINS(3) JJ

CATCHWORDS

Jurisdiction of Courts - motor vehicle accidents occurred in New South Wales - negligence actions brought in ACT Supreme Court - whether proceedings should be transferred to New South Wales Supreme Court.

Jurisdiction of Courts (Cross- Vesting) Act 1987 - defendants' relied on s.5(2)(b) to support argument for transfer - "otherwise in the interests of justice" - how to determine - appropriateness of forum not necessarily deciding factor - not possible to limit the range of factors which may be taken into account nor the weight to be afforded to each - certain factors will be significant.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s.5

Supreme Court Act 1933 (ACT), s.13
Service and Execution of Process Act 1901 (Cth), s.11
Service and Execution of Process Act 1992, ss. 5, 12, 15
The Constitution, ss. 51(xxiv), (xxxix), 120
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT)
Motor Accidents Act 1988 (NSW)
Matrimonial Causes Act 1959 (Cth)

Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310
Australian Assets Co Ltd v Higginson (1897) 18 LR (NSW) Eq 189; 14 WN (NSW)

97

National Bank of Australasia Ltd v Trout (1979) 2 NZLR 303
Tharsis Sulphur and Copper Co Limited v La Societe des Metaux (1889) 58 LJQB

435

Boyle v Sacker (1888) 39 Ch D 249
Perkins v Williams (1900) 17 WN (NSW) 135
National Commercial Bank v Wimborne (1979) ACLD 478
K W Thomas (Melbourne) Pty Ltd v Groves (1958) VR 189
Cotter v Workman (1972) 20 FLR 318
Bankinvest AG v Seabrook (1989) 90 ALR 407
Baffsky v John Fairfax and Sons Ltd (1990) 97 ACTR 1
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Spiliada Maritime Corporation v Cansulex Ltd (1987) 1 AC 460
Arrowcrest Group Pty Ltd and White v Advertiser News Weekend Publishing

Company Pty Ltd (ACTSC, Miles CJ, 26/3/93, unreported)
Commonwealth of Australia v Silverton Ltd (ACTSC, Gallop J,14/2/91, unreported)

Bourke and Ors v State Bank of NSW (1988) 85 ALR 61
Staples v McCall (1989) FLC 77,473
Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41
McKain v R W Miller and Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1
Stevens v Head [1993] HCA 19; (1993) 176 CLR 433
Deputy Commissioner of Taxation (NSW) v Chamberlain (1990) 93 ALR 729
O'Neill v Mann (ACT G15/94, Heerey J, 21/4/94, unreported)
Re T (an infant) (1990) 1 Qd R 196
Waterhouse v ABC (1989) 86 ACTR 1
Chapman and Jansen (1990) FLC 77,952
Leal Boss Computer and Office Supplies Pty Ltd v Boss Computer and Office

Supplies Pty Ltd (1993) 168 LSJS 489

Wood v Guenther (ACTSC, Higgins J, 5/11/93, unreported)
Goryl v Greyhound Australia Pty Ltd and Anor [1994] HCA 18; (1994) 120 ALR 605

HEARING

CANBERRA, 4 March 1994
22:6:1994

Counsel for Plaintiff: Mr R Crowe

Instructing solicitors: Gallens Crowley and Chamberlain

Counsel for Defendant: Mr G Stretton

Instructing solicitors: Abbott Tout Russell Kennedy

Counsel for Plaintiff: Mr S Walmsley

Instructing solicitors: Baker Deane and Nutt

Counsel for First Defendant: Mr G Stretton

Instructing solicitors: Abbott Tout Russell Kennedy

Counsel for Second Defendant: Mr C MacLachlan

Instructing solicitors: Crossin Barker Gosling

Counsel for Plaintiff: Mr R Crowe

Instructing solicitors: Ken Johnston Bedford and Co

Counsel for First Defendant: Mr G Richardson

Instructing solicitors: Mallesons Stephen Jaques

Counsel for Second Defendant: Mr C MacLachlan

Instructing solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:

1. The application, in each matter, be refused.
2. The applicants, in each matter, pay the respondents' costs.

DECISION

MILES CJ I have read in draft the reasons for judgment of Higgins J in these matters. I agree that in Dawson v. Baker the interests of justice do not justify an order transferring these proceedings to the Supreme Court of New South Wales.

2. However, I am of the contrary view in Marchant v. Brown and the Council of the Shire of Oberon and in Brown v. Marchant and the Council of the Shire of Oberon. Although the Council of the Shire of Oberon through its counsel expressed indifference as to whether the proceedings should continue in this Court or in the Supreme Court of New South Wales, the interests of justice are not governed by the attitude or wishes of a party or even of all the parties.

3. Determination of the question of the liability of the Shire of Oberon to the plaintiffs for the state of the road on which they were riding their motorcycles at the time they received injury is, in my view, a more appropriate matter for a Court in New South Wales than it is for this Court. The Council of the Shire of Oberon is presumably a body incorporated under the Local Government Act 1919 of New South Wales, although there is no allegation to that effect in the statement of claim. What the statement of claim alleges in that respect is simply that "the second defendant is and was at all material times the highway authority responsible for main road 256 and maintained such roads from funds provided by the Roads and Traffic Authority of New South Wales"

4. The substantive law relating to the liability of public authorities for the state of roads under their control or maintenance varies from jurisdiction to jurisdiction and depends often upon local statutory provisions and upon local judge-made law. The Shire of Oberon is only one local government area in New South Wales. It is likely that the physical conditions relating to roads vary markedly from one local government area to another, or within the same local government area. It is likely that what is required by way of reasonableness on the part of one local government authority in New South Wales in the discharge of its duty relating to the maintenance of roads is different from what is required of another local government authority. The structure of government in New South Wales is different from that in this Territory. So are the distribution of powers and responsibility for the construction and maintenance of public roads. The liability of the Commonwealth for the maintenance of public roads in the Territory, as it existed before self-government, has been discussed in McDonogh v. Commonwealth of Australia (1985) 9 FCR 360 (Full Court of the Federal Court of Australia) and in Flynn v. The Commonwealth of Australia (unreported, Supreme Court of the ACT, 13 November 1987, Miles CJ). Those cases make it clear that the liability of the Commonwealth for the state of roads within the Territory is not to be equated with that of a local government authority in a State.

5. Jurisdiction in this matter is being exercised by the Full Court pursuant to the order of a judge under sub-s.13(2) of the Supreme Court Act 1933. The Court is not exercising its appellate jurisdiction. The Court is required to decide for itself whether it is in the interests of justice that the proceedings be transferred to the Supreme Court of New South Wales. As I tried to indicate in Arrowcrest Group Pty Ltd and White v. Advertiser News Weekend Publishing Company Pty Ltd (unreported, Supreme Court of the ACT, 26 March 1993), the decision whether a transfer is or is not in the interests of justice is in the nature of a value judgment. Once the value judgment is made there is no discretion as to whether or not an order should be made. The Court must order the transfer or refuse to order the transfer in accordance with the decision whether to do so is in the interests of justice. The order for transfer or the refusal to transfer is not subject to appeal.

6. In Bankinvest AG v. Seabrook and Others (1988) 14 NSWLR 711 at 714, Street CJ said that the decision whether to transfer or not to transfer proceedings, although to be made with regard to principles governing an adjudication is, in effect, an administrative decision. His Honour continued:

"As a very broad generality it can be said that the ordinary day to
day administration of the cross-vesting scheme in its operation on a
given proceeding is placed in the hands of whatever court it may be in
which they are commenced. Ordinarily it could be expected that a
single judge of that court would decide whether it is in the interests
of justice to transfer the proceedings to one of the other nine
courts. If such an order be made then in practical terms it effects
what might be likened to an administrative redirection of the
proceedings to the other court selected. In the hands of that other
court the proceedings will continue to attract the Australiawide
jurisdiction and law which would have been exercisable and applicable
by the court from which they were transferred.
Viewed from this standpoint it can be seen to be highly desirable that

the

judicial administration of the day to day working of the cross-vesting
scheme is not encumbered by an encrustation of judge-made pronouncements

of

principles to be applied when considering making a transfer order. 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. Consideration
of textured principle and deep learning - in particular principles of
international law such as forum non conveniens - have no place in a
vestcrossing adjudication. There is, in substance, no principle to be
enunciated other than the necessity of applying the specific

considerations

stated in the cross-vesting legislation, primary amongst which is the
pursuit of the interests of justice. Internal administrative decisions
within a court as to where particular proceedings should best go forward

in
the interests of justice are in many ways akin to the making or refusing of
transfer orders under the cross-vesting legislation. The two provisions I
have mentioned, namely the power of a court to make a transfer order on its

own motion and the denial of any appeal from an order in relation to a
transfer, are clear pointers towards this view."

7. I consider, with respect, that these remarks provide a proper guide to the approach to be taken to the question whether a transfer of proceedings under the cross-vesting legislation is in the interests of justice. As the present application illustrates, different judges might come to different decisions whether the interests of justice are served in transferring proceedings pursuant to the Act, but that is not to say that one is right and another wrong. For the reasons already given, I think that it is in the interests of justice that the proceedings in Marchant v. Brown and the Council of the Shire of Oberon and in Brown v. Marchant and the Council of the Shire of Oberon be transferred to the Supreme Court of New South Wales and I would so order.

GALLOP J I have had the advantage of reading the draft judgment of Higgins J in these matters. I agree that the applications must be refused for the reasons stated by him.

HIGGINS J These three applications under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) were heard together. They were heard by a Full Court pursuant to an order made under s.13 of the Supreme Court Act 1933 (ACT). In each case there was a motor vehicle accident which occurred in the State of New South Wales. In Dawson v Baker, two motor vehicles collided on the Federal Highway near Lake George. The plaintiff is a resident of this Territory, the defendant was driving a New South Wales registered vehicle but was not resident in New South Wales. At the time of the accident, the defendant was a "back packer" temporarily in the State.

2. In the cases of Marchant v Brown and Brown v Marchant, there was an accident on the Goulburn Road near Black Springs in the state of New South Wales. Mr Brown, a resident of this Territory, riding a Territory registered motor cycle, claims to have been thrown from his motor cycle by reason of the state of road works for which the defendant Council was responsible. He was then struck by Mr Marchant, a New South Wales resident employed in the Territory, who had been following behind and riding a New South Wales registered motor cycle.

3. Mr Marchant sues Mr Brown and the Council in respect of his injuries. Mr Brown sues Mr Marchant and the Council in respect of his injuries.

4. In the case of Dawson v Baker, service of the Writ of Summons was effected in New South Wales pursuant to an order for substituted service made on 12 November 1993. In each of the cases of Marchant v Brown and Brown v Marchant the defendant motor cyclist was personally served with the Writ of Summons in the Australian Capital Territory.

5. It seems unlikely that liability will be an issue in the case of Dawson v Baker, but it will be likely to be in issue in the cases involving Mr Brown and Mr Marchant.

6. In each case the alleged tort was committed within the State of New South Wales. In the case of an action in personam, which includes an action in tort, the jurisdiction of the court depends on the efficacy of its process to secure obedience to its command. Amenability to the command of the originating process primarily depends on presence of the defendant within the jurisdiction: Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310. A defendant served with process in the jurisdiction is relevantly present. That is so even if that presence is merely fortuitous: Australian Assets Co Ltd v Higginson (1897) 18 LR (NSW) Eq 189; National Bank of Australasia Ltd v Trout (1979) 2 NZLR 303. An absent defendant not otherwise amenable to the command of the originating process may voluntarily submit to that command by agreement before or after commencement of proceedings or by unconditional appearance: Perkins v Williams (1900) 17 WN (NSW) 135; Tharsis Sulphur and Copper Co Limited v La Societe des Metaux (1889) 58 LJQB 435; Boyle v Sacker (1888) 39 Ch D 249.

7. Jurisdiction does not depend on the place where the tort occurred or the proper law governing liability or damages. An absent plaintiff, not otherwise subject to the jurisdiction of a court, submits to the jurisdiction of the court in relation to any related set-off or cross-claim by suing in the jurisdiction: National Commercial Bank v Wimborne (1979) ACLD 478.

8. A defendant, before 10 April 1993, could choose not to submit to the command of originating process issued out of this Court unless there was a nexus between the subject matter of the action, or the defendant, and the Territory as specified by s.11 of the Service and Execution of Process Act 1901 (Cth). Before the amendment of that Act on 11 December 1992, some of the States had provided legislatively for the process of their courts to be enforceable by reference to categories of connection with their States which were wider than those referred to in s.11: see, for example, K W Thomas (Melbourne) Pty Ltd v Groves (1958) VR 189.

9. It had been suggested in Cotter v Workman (1972) 20 FLR 318, that a provision by a State or Territory permitting service of its process within Australia without reference to any relevantly limiting nexus, with either the parties or the subject matter of the litigation, would be invalid.

10. However, that issue has been rendered redundant by the proclamation giving effect, as from 10 April 1993, to the substantive provisions of the Service and Execution of Process Act 1992 (the new Act). That legislation, so far as the States are concerned, is founded on s.51 (xxiv) of the Constitution. The inclusion of the Territories is founded on either or both of s.51 (xxxix) and s.122 of the Constitution.

11. The new Act provides that service of process pursuant to it is as effective as if it had been served in the place of issue (s.12).

12. Section 15 of the new Act, aided by s.5, provides expressly that any initiating process issued in a State or Territory may be served in any other State or Territory.

13. Where service has been effected of process, other than that of a Supreme Court of a State or Territory, a person served may apply to the court of issue for an order staying proceedings in that court (s.20). It is relevant to note the grounds upon which such a stay of proceedings will be ordered. 20 (3) The court may order that the proceeding be stayed if it is satisfied that a court of another State (or Territory) that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.

14. In making that decision, the court's attention is directed to the respective places of residence of parties and witnesses (s.20(4)(a)), the place where the subject matter is situated (s.20(4)(b), the financial circumstances of the parties, if known (s.20(4)(c)), any agreement as to jurisdiction and/or place of hearing (s.20(4)(d)), the appropriate law to be applied (s.20(4)(e)), and related or similar proceedings (s.20(4)(f)). The fact that the proceeding was commenced in the place of issue is not to be considered.

15. The Supreme Courts of the States and Territories have been empowered by the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (Cross-Vesting Act) and similar State or Territory complementary legislation, to exercise, under certain circumstances, jurisdiction over matters pending in another Supreme Court. Presently, the power of this Court to do so depends entirely upon the Cross-Vesting Act. There is a Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT). However, it will come into effect only when the Commonwealth Act is amended to include the Australian Capital Territory in the definition of "State".

16. Section 5 of the Cross-Vesting Act empowers this Court, where a proceeding is pending in the Court, to transfer that proceeding to the Federal Court, the Family Court, or the Supreme Court of another State or Territory.

17. Each of the defendants in these three matters, other than the Council of the Shire of Oberon, applies under s.5(2) of the Cross-Vesting Act for an order that the proceedings be transferred to the Supreme Court of New South Wales.

18. It is conceded by those defendants that there are no related proceedings in the Supreme Court of New South Wales. It is not contended that the proceedings would, but for the cross-vesting legislation, be incapable of being instituted in this Court. It may be that questions will arise as to the application of the law of the State of New South Wales in determining liability, but it is not suggested that that question would be beyond the jurisdiction of this Court to determine. There is unlikely to be any question of the validity or construction of New South Wales legislation.

19. Each of the defendants relies on paragraph 5(2)(b). By virtue of that paragraph, if it appears to this 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 Territory; then this Court "shall transfer the relevant proceeding to that other Supreme Court".

20. The Council of the Shire of Oberon neither opposes nor consents to the applications for transfer to which it is a party. Onus of Persuasion

21. A question was raised as to whether any and what onus lay on an applicant for transfer.

22. The Cross-Vesting Act requires it to "appear" to this Court that it is in the interests of justice to transfer proceedings to another Court. Section 5(7) enables such a transfer to be made on the Court's own motion. Usually it is made on the motion of a party. Sometimes the grounds for transfer will be so manifest that it will "appear" to be warranted with little or no argument. In other cases the question will be more finely balanced. In all cases, the extra expense and delay which will follow the making of a transfer order will be a relevant consideration against transfer. A legitimate reason for the choice of the jurisdiction by the plaintiff will also be a relevant consideration against ordering a transfer.

23. In Bankinvest AG v Seabrook (1989) 90 ALR 407, Rogers AJA, with whom Street CJ agreed, observed that it was inappropriate to talk of an "onus" in relation to applications of this kind. In Baffsky v John Fairfax and Sons Ltd (1990) 97 ACTR 1, I referred to the suggested inference from that observation that a party seeking transfer did not have to demonstrate a case for transfer. That is a different question from the question as to whether the forum non conveniens test in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 or that in Spiliada Maritime Corporation v Cansulex Ltd (1987) 1 AC 460 should govern the meaning of the phrase "in the interests of justice".

24. At the end of the day, the issue as to whether or not the proceedings are to be transferred must be determined on the basis that the Court has been persuaded that the interests of justice require it. A party seeking that result therefore has the task of persuading the Court in which the action is pending that the interests of justice require a transfer. That was the approach taken by Miles CJ in Arrowcrest Group Pty Ltd and White v Advertiser News Weekend Publishing Company Pty Ltd (ACTSC, 26/3/93, unreported). In that case an earlier application for a transfer had been refused. The later application was granted after the applicant drew attention to relevantly altered circumstances.

25. In Commonwealth of Australia v Silverton Ltd (ACTSC, 14/2/91, unreported) Gallop J refused an application to transfer proceedings in this Court to the Federal Court. The ground relied on was that there were related proceedings pending in the Federal Court. The question, therefore, was which was the "more appropriate" forum. That question included, in his Honour's view, a consideration of the interests of justice. It was not a case of displacing a plaintiff's choice of forum. His Honour held that he was "not satisfied" that the Federal Court would have been a more appropriate forum (ibid, at 15). There was no other reason for transfer suggested.

26. That approach seems to be no different from the approach taken in each of the various jurisdictions. The question of "onus" or "no onus" seems not to be a real issue. There is and must necessarily be an "onus of persuasion" on any party seeking to persuade any Court to a particular conclusion. If the Court moves itself to transfer a proceeding, it is already persuaded. Of course, a party may wish then to persuade the Court against so moving. If so, the onus of persuasion will be on a party opposing such a transfer in those circumstances.

27. The real issue is as to the range and relative weight of matters which are relevant to whether a transfer of proceedings is or is not in "the interests of justice". The Interests of Justice

28. Wilcox J considered this phrase in the context of the Cross-Vesting Act in Bourke and Ors v State Bank of NSW (1988) 85 ALR 61. His Honour said at 77, In my opinion this phrase ought to be read widely. Under that rubric, as it seems to me, the court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in "the interests of justice" to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation.

29. In Staples v McCall (1989) FLC 77,473 Nygh J noted at 77,477 that the "interests of justice" required him to keep account of, ... the broader perspective in principle, each court should exercise its appropriate jurisdiction. It might be a case of applying the categorical imperative, and asking oneself what would happen if all litigants were able to institute proceedings in whatever court was more amenable to their particular claim. It is clear that chaos and distortion would result. It is not in the interests of justice.

30. Bankinvest AG v Seabrook (1988) 14 NSWLR 711, was, as Kirby P noted, a clear case for transfer. There was related litigation in the Supreme Court of Queensland. Almost all witnesses and documents were located in Queensland. All parties, other than the plaintiff, were Queensland residents. At least some issues involved the interpretation and application of Queensland laws. Some of the powers sought to be invoked would not have been available, but for the Cross-Vesting Act, to a NSW Court.

31. Rogers AJA considered that "the interests of justice" would encompass all those matters which Lord Goff in Spiliada (supra) regarded as relevant to the selection of "the appropriate forum" rather than the principles considered applicable to forum non conveniens (the "clearly inappropriate forum" test) adopted by the High Court in Oceanic (supra).

32. In Spiliada, Lord Templeman described those relevant factors as "legion" and noted at 465, The authorities do not, perhaps cannot, give any clear guidance as to how these factors are to be weighed in any particular case.

33. Lord Goff took the view that a stay would be granted only if the court was satisfied that there was another forum, having competent jurisdiction, which was "the appropriate forum", that is, a forum "in which the case may be tried more suitably for the interests of all the parties and the ends of justice" (476). Lord Goff accepted a number of propositions as relevant to such a conclusion -

(i) There is a burden initially resting on a defendant to persuade the
court to grant a stay.
(ii) If the plaintiff has chosen the initial forum as of right, then that
choice will not be lightly disturbed.
(iii) The burden on the defendant is to demonstrate that another

available

forum "is clearly or distinctly more appropriate" than the originally
chosen forum.
(iv) It is relevant to consider which forum has the most real and
substantial connection with the action. One connecting factor is
that the matter may be conducted in the other forum at substantially
less inconvenience or expense. Other factors include the law
governing the relevant transaction and the respective places where
the parties reside or carry on business.
(v) Even if another forum seems, prima facie, to be a more appropriate
venue, the court will refuse to grant a stay if justice demands it.
An example would be if justice would be denied in the foreign
jurisdiction.
(vi) The fact that the plaintiff stands to gain a legitimate personal or
juridical advantage by the choice of forum is relevant but not
decisive to prevent a stay which otherwise would be granted provided
substantial justice would be done in the available appropriate forum.
For example, an undertaking not to plead a less generous time bar
might be imposed to remove such a potential injustice.

34. In Oceanic, the majority of the High Court rejected the Spiliada approach. It was criticised as leading to uncertainty, offering no real guidance.

35. It is ironic to note that, in Oceanic, Wilson and Toohey JJ, in dissent, criticised the majority, narrower view. They accepted the Spiliada test. Their criticism, at 220, was in the following terms, Since preparing these reasons for judgment we have had the opportunity of reading the reasons prepared by the other members of the Court. It is apparent that the decision of the Court, while resolving the immediate dispute between the parties, does not yield a precise and authoritative statement of the principles that should be applied in dealing with an application to stay proceedings. That statement must await another day.

36. Brennan J rejected the Spiliada approach. To be granted a stay, in his opinion, the defendant needed first of all to show "oppression, vexation or other abuse of process" (233). Demonstrating a balance of convenience in favour of an alternate forum was not enough to discharge this burden of proof. A refusal to exercise jurisdiction "regularly invoked" could be justified only on "grave and narrowly confined" grounds. Even so, a stay might be refused if it would result in injustice to such a plaintiff.

37. Spiliada, involved the weighing of various advantages and disadvantages of the competing forums to discover which, on balance, was the appropriate forum. That approach was criticised by Brennan J, at 237, on the grounds that it entailed an,

...absence of fixed guidelines and the consequent uncertainty of the
decision in particular cases.

However, it is useful to note one factor his Honour considered important in a forum non conveniens application, at 238,

The justice which our courts dispense is justice according to our
law; the courts cannot compare justice according to differing laws
in order to say what satisfies the ends of justice in some abstract
sense.

38. Such a consideration would not seem applicable within a federation which has adopted legislation conferring on some Australian courts the jurisdiction of other Australian courts.

39. Deane J noted that Spiliada adopted a "more appropriate forum" test, in part, to conform more closely with other approaches to the issue. The United States' approach, for example, involves the defendant demonstrating that the plaintiff's choice of forum imposes a heavy burden on the defendant or the court without any specific reasons of convenience offered by the plaintiff. His Honour noted at 250, Convenience is seen as involving two distinct aspects: private convenience from the standpoint of the litigants (eg., relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of a view of the premises if that be appropriate and all other practical matters that make trial of a case easy, expeditious and inexpensive) and public interest convenience in the sense of convenience of the particular court in which the action is brought (eg., the workload of its members and the state of its calendar) and of the overall administration of justice (eg., the need to help courts avoid conducting complex exercises in comparative law and the danger that there would be an increased flow of litigation into the United States and further congestion of already overcrowded court lists).

40. The United Kingdom position, as endorsed in Spiliada, did not put the convenience of particular courts or of the overall court system forward as a relevant consideration.

41. Insofar as the United States approach is for a court to give effect to a forum non conveniens objection of its own motion, that approach is consistent with the legislative framework of the Cross-Vesting Act.

42. Deane J preferred the United Kingdom approach in Spiliada to that adopted in the United States, subject to the qualification (251),

...that there is an available and appropriate tribunal in some other
country and that the local court is a clearly inappropriate forum in
all the circumstances.

43. This test seems much closer to the Spiliada test than Brennan J would appear to have accepted.

44. Gaudron J concurred generally with Deane J but laid more emphasis on whether the matter would be determined by the substantive law of the forum in determining the appropriateness of the forum selected by the plaintiff.

45. Her Honour noted at 266,

It seems to me undesirable for litigation as to where litigation
should take place to be complicated by considerations of applicable
law, particularly if those considerations may involve the
determination, whether provisionally or otherwise, of questions of
fact or law which trench upon the ultimate question of liability or
the extent thereof. Accordingly, in my view, the selected forum
should not be seen as an inappropriate forum if it is fairly arguable
that the substantive law of the forum is applicable in the
determination of the rights and liabilities (including the extent of
liability) of the parties.

46. In the present cases, it is conceded that the law of New South Wales will govern the substantive questions relevant to liability, wherever in Australia the proceedings are heard, as follows from the High Court decisions of Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 and McKain v R W Miller and Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1. The procedural laws of the forum will apply: see McKain (supra) and will include laws affecting the calculation of damages, as follows from the recent High Court decision in Stevens v Head [1993] HCA 19; (1993) 176 CLR 433.

47. When regard is had to the terms of the Cross-Vesting Act, it seems clear that the legislature did not intend that a transferring court should transfer a matter only if satisfied that the original court was clearly inappropriate and that an alternative court was clearly more appropriate. It intended the test to be more like that defined in Spiliada than Oceanic.

48. What is "more appropriate" and what is "in the interests of justice" will plainly vary from case to case. It is clear, however, that the range of factors dictating what, on balance, will cause a forum to be regarded as "more appropriate" are not different in kind from those which will lead to a forum being regarded as "inappropriate".

49. A court may be persuaded that a transfer is required "in the interests of justice" for reasons which have nothing to do with the appropriateness of the transferee court or the inappropriateness of the transferor court. In Deputy Commissioner of Taxation (NSW) v Chamberlain (1990) 93 ALR 729, Wilcox J (734-5) cross-vested the matter before him, then in this Court, to the Federal Court of Australia to enable a junior barrister to continue in that role. As his Honour noted, the case for transfer was "less than compelling" but as there was no disadvantage to any party nor any objection from them, it should be granted.

50. Further, in a recent case of O'Neill v Mann (ACT G15/94, Heerey J, 21/4/94, unreported) a matter was transferred from this Court to the Federal Court of Australia, although this Court was the "appropriate" court. No judge of this Court was available to hear the matter and it was desirable that it be heard promptly. Again, there was no discernible disadvantage to either party in transferring the matter. The conclusion follows that it is not possible to limit the range of matters which will be relevant, or the weight any such matter will be afforded in the circumstances of a particular case.

51. In Re T (an infant) (1990) 1 Qd R 196, Ryan J considered the balance of convenience and connection to the jurisdiction of Western Australia of the child involved to be decisive in ordering a transfer of custody proceedings from the Supreme Court of Queensland to the Family Court of Western Australia. The mother had wrongfully removed the child from Western Australia. Ryan J held that she ought not to be permitted to rely on her own wrongful act to support a choice of Queensland as the appropriate forum.

52. Waterhouse v ABC (1989) 86 ACTR 1 was a defamation action commenced in this Court. Transfer of the proceedings to the Supreme Court of New South Wales was sought. Kelly J gave weight to the plaintiff's choice of forum and such forensic advantages as might arise from that course. If the transfer was to deny the plaintiff the opportunity to seek exemplary damages, it would, in his Honour's view, have created an injustice to the plaintiff to grant a transfer. However, his Honour was of the view that there would be no such consequence. That is a view which could now be regarded as at variance with Stephens v Head (supra). There being no substantive or procedural disadvantage to the plaintiff which he could perceive, his Honour granted a transfer. He considered that the greater burden of inconvenience and expense created by the matter proceeding in Canberra rather than Sydney created injustice to the defendant. That approach would seem to be appropriate.

53. Chapman and Jansen (1990) FLC 77,952 involved applications in the Family Court. All matters other than property being disposed of, the de facto husband applied to transfer the property claims to the Supreme Court of Victoria. Nicholson CJ noted that the property dispute remaining was the type of matter usually dealt with by a State court and involved the application of State law. His Honour agreed that, whilst the considerations referred to in Spiliada would be more appropriate to a cross-vesting application than the approach in Oceanic, there was still a requirement that the party seeking transfer discharge "the forensic onus of persuading the Court that it ought to order a transfer" (77,959). As his Honour noted, whilst some guidance can be obtained from the decided cases, what is in the interests of justice will vary widely from case to case.

54. Further, his Honour did not consider that comparative court delays and procedures should be given great weight. It would usually be inappropriate for one court to reflect adversely on such matters in relation to another court. In the end, his Honour's view was that no sufficient case for a transfer had appeared, the matter having initially been properly transferred to the Family Court.

55. Fogarty J considered the determining factor to be, in a case where the Family Court has only cross-vested jurisdiction, that each court should exercise its usual jurisdiction. In such a case it is, in the absence of countervailing factors, appropriate to transfer the proceedings to the court which would more usually deal with such proceedings. It followed that his Honour was satisfied the proceedings should be transferred as requested.

56. Olney J agreed with the principles as stated by the Chief Justice, but considered that their application to the instant case required a different result from that which the Chief Justice had proposed. In his Honour's view the relevant considerations determining a transfer were those in s.5(4)(b)(ii) A and B. But for the Cross-Vesting Act, the proceedings relating to property could not, standing alone, have been brought in the Family Court. Victorian law was relevant to the resolution of the issues. The consideration of the "interests of justice" in his Honour's view did not otherwise affect the matter. In Baffsky v John Fairfax and Sons Ltd (supra), I declined to order the transfer of that matter, duly commenced in this court, to the Supreme Court of New South Wales. Although the matter had a more natural connection with Sydney, the plaintiff's choice of venue was regular and made for proper reasons, that is, to avoid what was perceived as a possible unfair forensic disadvantage to the defendant. Although little weight was afforded to that factor, nothing appeared to displace the weight to be given to the plaintiff's proper choice of forum.

57. Commonwealth of Australia v Silverton Ltd (supra), was a matter where a choice of the "more appropriate" forum alone was in issue. Gallop J determined that question by reference to the real nature of the issues to be determined. It was really a "building case" rather than a "trade practices case". It would be more conveniently and usually litigated in a local Supreme Court rather than the Federal Court. Thus, his Honour concluded, the Supreme Court was the more appropriate forum. In that case the plaintiff's choice of forum was not a real factor as the plaintiff had chosen each of the two forums in succession.

58. In Leal Boss Computer and Office Supplies Pty Ltd v Boss Computer and Office Supplies Pty Ltd (1993) 168 LSJS 489, Debelle J in the Supreme Court of South Australia, gave considerable weight, in the absence of related proceedings and of any demonstrated injustice to the defendant, to the regular choice of forum by the plaintiff. Indeed, his Honour went so far as to suggest that the plaintiff's choice of forum should not, in the absence of an express statutory requirement, be displaced unless the test propounded by Deane J in Oceanic was satisfied.

59. As has been noted, in the context of a transfer within a federation, there is probably no more than a difference in emphasis between the test as propounded by Deane J in Oceanic and that endorsed by Lord Goff in Spiliada. Nevertheless, the legislation seems to me to embrace the less restrictive emphasis which may be deduced from Spiliada.

60. In Arrowcrest Group Pty Ltd and White v Advertiser News Weekend Publishing Company Pty Ltd (supra), Miles CJ made an order transferring defamation proceedings to the Supreme Court of South Australia. Whilst the proceedings were regularly commenced in the Territory, the extent of the connection between the issues in the case and the State of South Australia only became apparent once the pleadings were delivered. An earlier application for transfer had been refused. On the first application, the small extent of publication in the Territory, the balance of convenience and the burden of additional expense were said to favour the defendant's application. That was not considered by his Honour to warrant overriding (at 5-6),

... the competing demands of the right of the plaintiffs to maintain
an action in this Court for a tort committed in the Australian
Capital Territory.

61. However, when the pleadings were completed, the issues that thereby emerged tipped the balance in favour of a transfer when the second application came to be considered .

62. More recently, in Wood v Guenther (ACTSC, 5/11/93, unreported), I ordered the transfer of proceedings commenced in this Court to the Supreme Court of New South Wales. The balance of convenience as between the parties favoured neither the Territory nor New South Wales. The allegedly negligently driven vehicle was registered in New South Wales. The plaintiff was not a resident of the Territory. The sole reason for her choice of the Territory as a forum, a choice only available since the recent amendment of the Service and Execution of Process Act, was frankly stated to be her advisers' perception that full common law damages would be awarded in the Territory but damages would be restricted in New South Wales by the provisions of the Motor Accidents Act 1988 (NSW): see also Stevens v Head in this regard. The natural forum would have been New South Wales or, possibly, from the plaintiff's view point, Western Australia.

63. The Court's attention was attracted to the recent High Court decision of Goryl v Greyhound Australia Pty Ltd and Anor [1994] HCA 18; (1994) 120 ALR 605. That case illustrates possible difficulties in the way of attempting to remove by legislation the effect of Stevens v Head. The plaintiff, a New South Wales resident, was injured in New South Wales whilst a passenger in a Queensland registered passenger coach. She sued the defendant in Queensland. She sought to be relieved from the consequences of a Queensland statute which purported to apply in Queensland the limits imposed on damages by the Motor Accidents Act 1988 (NSW) by reference to the plaintiff's place of residence. Those limits would not have been applied to a Queensland resident injured in the same circumstances. The effect of the decision was to strike down that provision as being contrary to s.117 of the Constitution.

64. In the course of so doing, Deane and Gaudron JJ referred to the likely burden of an insurance premium in respect of the vehicle in question being passed onto the fare-paying public without discrimination based on residency. Each member of the Court accepted that the New South Wales legislation would not have affected the assessment of damages in Queensland of its own force. The issue of "forum shopping" was not referred to. That decision, accordingly, has no direct bearing on the present matters.

65. It is possible to isolate some matters which will be of significance in determining whether it is in the interests of justice to order a transfer of proceedings.

Application of substantive law
If the law to be applied is that of the transferee jurisdiction, transfer
will be favoured if that law is peculiar to that jurisdiction. This

would

be particularly significant if the validity or interpretation of local
legislation was in issue.
Forensic advantage or detriment conferred by procedural law
If there is a proper forensic advantage which a party might gain or lose
by a transfer then that is relevant.
The choice made by the plaintiff of a forum and the reasons for that
choice
The more cogent the reasons for a choice of forum the more weight can be
afforded that choice whether or not the procedural laws are relevantly
different. For example, the desire in Baffsky of the plaintiff to avoid
possible unfair prejudice from a "home town" jury was of some weight.
Substantive connections with the forum
Residence, domicile, place of occurrence and choice of law will all be
relevant .
Balance of convenience to parties and witnesses
The comparative cost and delay will be relevant. However, there is the
proviso that one court will not usually draw any adverse conclusion about
the ability of another to deal as fairly and expeditiously with the

matter

as would the transferor court. Delay resulting from the transfer itself
would be a relevant consideration.
Convenience to the court system
Although this is regarded as an appropriate factor to be considered in

the

United States, it would be contrary to the duty of a court to hear a
matter properly before it to accede to a request for transfer on those
grounds. That is not to say, however, that the existence or absence of a
specialist jurisdiction would be irrelevant. It might well justify a
transfer, for example, of a matrimonial cause which may be more
appropriately dealt with in the Family Court even if it had been

regularly
commenced under the Matrimonial Causes Act 1959 (Cth) in the Supreme Court

of a State or Territory.

66. It is now necessary to consider the individual applications.

67. Dawson v Baker: The plaintiff is a resident of this Territory. It is unlikely that liability will be in issue. The balance of convenience would slightly favour retention. The defendant has no connection of any significance with either New South Wales or the Territory.

68. There is no legal issue, other than assessment of damages, upon which the laws of the Territory and New South Wales differ. The defendant seeks a transfer to gain the benefit of New South Wales law as to assessment of damages. Conversely, the plaintiff wishes to retain the benefit which suing in his place of residence would be expected to bring.

69. The Court is not persuaded that it is any more an injustice to the plaintiff to deprive him of a benefit to which he has lawful and bona fide access than it is to give the defendant the benefit he would gain if the request for a transfer was to be granted.

70. I would refuse this application in the interests of justice.

71. Stephen Marchant v Graham Brown and Council of the Shire of Oberon; Graham Brown v Stephen Marchant and Council of the Shire of Oberon: The case against the Council of the Shire of Oberon is open to contest. It may well involve a consideration of local government legislation in New South Wales. It is not likely, however, that the validity or interpretation of that legislation will be in issue. There is no substantial difference between the laws of the Territory and those of New South Wales in the calculation of damages if the Council is found liable to either or both of the plaintiffs. The Council itself does not seek a transfer.

72. Although the balance of convenience slightly favours a transfer so far as the Council is concerned, the balance is more evenly poised as between the other parties.

73. The determination of factual issues relevant to liability favours New South Wales slightly and the Territory is favoured heavily on the issue of damages, apart from the method of calculation of damages.

74. In each of these matters, the first defendant would benefit from a transfer by reason of the difference between the two relevant jurisdictions on the issue of calculation of damages.

75. However, in each of these cases, the plaintiffs have invoked the jurisdiction of this Court as of right. Each defendant was served with the initiating process in this Territory.

76. The plaintiff, Mr Marchant, although he lives in Bungendore, is employed in Canberra. It is true that his vehicle is registered and insured in New South Wales. It is also true that to allow matters wholly unconnected with the Territory to be litigated here could, if it became a common practice, distort the third party insurance scheme in New South Wales.

77. It could also distort the usual exercise of jurisdiction of courts within Australia. However, the cross-vesting scheme enables such actions to be transferred where it is appropriate to do so. It is appropriate to transfer actions which have no relevant connection to the chosen jurisdiction. These matters each have a genuine and proper connection with the Territory. There is no reason, on balance, to interfere with the choice of forum made by the plaintiff .

78. These applications should also be refused in the interests of justice.

79. In each of these matters, the applicants are to pay the respondents' costs.