Brian John Thomas Daley v Phillip Hill [1995] ACTSC 144 (13 December 1995)

SUPREME COURT OF THE ACT

BRIAN JOHN THOMAS DALEY v. PHILLIP HILL
No. SC592 of 1995
Number of pages - 4
Cross-Vesting - Jurisdiction

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Cross-Vesting - application to transfer proceedings to the Supreme Court of New South Wales.

Jurisdiction - neither party having substantive connections to the Territory - whether it is in the interests of justice to transfer the proceedings - no relevant difference in substantive law between jurisdictions - forensic advantage - geographic convenience - certainty of venue - delay - balance of convenience - witnesses within jurisdiction - forum shopping.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

Dawson v Baker (1994) 120 ACTR 11
Stevens v Head [1993] HCA 19; (1993) 176 CLR 433

HEARING

CANBERRA, 1 December 1995
13:12:1995

Counsel for the Plaintiff: Mr J Brewster

Instructing solicitors: Gordon Garling Giugni by their agents
Farrar Gesini and Dunn

Counsel for the Defendant: Mr R Refshauge

Instructing solicitors: Deacons Graham and James

ORDER

THE COURT ORDERS THAT:
The application for transfer be refused.

DECISION

HIGGINS J On 24 August 1995 the plaintiff commenced proceedings in this Court against the defendant seeking damages for personal injury.

2. The cause of action was expressed to rely upon the following material facts,

1. At all material times the Plaintiff was the owner and driver of a
Prime Mover registered number TCE-983 and a trailer registered
number TBY-810 ("the Plaintiff's vehicle").
2. At all material times the Defendant was the driver of motor vehicle
registered number ERE-157 (Victoria) ("the Defendant's vehicle").
3. At approximately 11.35pm on 21 October 1994 the Plaintiff's vehicle
was travelling in a Northerly direction along the Hume Highway,
when, approximately four to five kilometres North of Goulburn the
Defendant's vehicle came into collision with the rear of the
Plaintiff's vehicle.

3. The statement of claim then proceeds to allege that it was the defendant's negligence which caused the collision and consequent personal injury to the plaintiff.

4. The residence of the plaintiff was given as "C/- 26 Lovell Street, Young, NSW, 2594". That is the address of his solicitors in Young.

5. The address of the defendant was given as "20 Graham Avenue, Kilsyth, VIC, 3137".

6. On 21 November 1995, the defendant appeared and applied, pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), to have the proceedings transferred to the Supreme Court of New South Wales.

7. Mr Agnew, solicitor, has sworn an affidavit in support of the application. He is instructed by the Transport Accident Commission, the third party insurer of the defendant's vehicle.

8. He deposed that the plaintiff's vehicle was, in fact, registered in the State of South Australia. The plaintiff's residence was said to be 94 North Street, Murrumburrah, New South Wales. He had attended a Dr Khalfan, general practitioner, of 25 East Street, Harden, New South Wales. The place of the accident was said to be at Boxers Creek near Goulburn.

9. In reply, Mr McCabe, solicitor for the plaintiff, added the following facts,

. Murrumburrah is approximately one hour's drive from the Australian
Capital Territory;
. The plaintiff suffers back, chest, rib and neck pain as a
consequence of the accident;
. If those symptoms persist, Dr Khalfan, in accordance with his usual
practice, would refer the plaintiff to relevant medical specialists
practising in Canberra.

10. There was then a comparison offered between the convenience or otherwise of the matter proceeding in Sydney or Canberra. It was also suggested that there would be greater delay in the Supreme Court of New South Wales than this Court.

11. It is apparent that the comparison offered is not realistic. If transferred to New South Wales, the action might well be heard at Goulburn rather than Sydney. It might be transferred by the Supreme Court of New South Wales to the District Court. It could then be heard conveniently close to whatever centre may be seen as most convenient. The District Court does sit at Young, Yass, Goulburn and Queanbeyan from time to time.

12. There are no duplicated or related proceedings in any other court. I have therefore to ask whether it appears to me that it is "in the interests of justice" to transfer the proceedings to the Supreme Court of New South Wales.

13. In Dawson v Baker (1994) 120 ACTR 11, whilst noting that the discretion to be exercised is a broad one, I sought to identify factors which commonly recur. I will consider each of those.

Application of substantive law
14. The law to be applied is that of New South Wales. That does favour transfer but the substantive law relating to liability is not relevantly different from that applying in the Australian Capital Territory.

Forensic advantage or detriment conferred by procedural law
15. By virtue of the decision of the High Court in Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 there may well be a difference in the method of calculation of damages which would be expected to favour the plaintiff if an order for transfer is not made. There will be a correlative advantage to the defendant's insurer if a transfer order is made. This factor is relevantly neutral particularly as neither vehicle was registered or insured in New South Wales.

Choice made by the plaintiff of the forum and the reason for that choice
16. The plaintiff's choice is made on the ground of geographic convenience. Whilst that is a valid difference if Sydney is the venue, the difference between Canberra and Queanbeyan as a venue is not great. Of course the plaintiff, by suing in this court, gains a certainty as to the precise venue for the hearing which otherwise might be absent.

Substantive Connections with the forum
17. Neither party has any substantive connection to this Territory. The accident occurred near Goulburn not Canberra. The only connection is the likelihood of specialist medical witnesses being located in Canberra.

Balance of convenience to parties and witnesses
18. In this case none of the suggested venues will be convenient for the defendant. The actual place of registration of the relevant vehicles yields nothing so far as convenience is concerned.

19. Although the plaintiff's solicitor expresses the view that comparative delays favour retention of the matter in this court, I am not persuaded of that. Whatever may be the current delays, it cannot confidently be predicted what they will be like when the case is ready for hearing.

20. The application for transfer is made sufficiently early not to create any significant delay should it be granted.

21. The only likely difference is that if specialist medical witnesses are called it would be easier and cheaper for them to come to this Court rather than a New South Wales Court sitting outside of Queanbeyan. Yass would be only marginally less convenient.

Convenience to the Court System
22. There is no specialist court better suited to hear this case than this court. It is a matter which would, routinely, be heard by the Master or a Judge.

23. If it appeared that the only reason for bringing the proceedings in this Territory was to obtain a more favourable assessment of damages than would have been the case had the action been brought in New South Wales or Victoria, it may be that this court would discourage "forum shopping" and the potential overloading of this Territory's judicial resources by ordering a transfer. That does not appear to be the present situation.

Conclusion
24. I am not persuaded that the plaintiff has chosen this forum improperly. The balance of convenience favours this region. There are no peculiar features rendering one court or another more appropriate.

25. Whilst both Victoria and New South Wales could have, prior to the Cross-Vesting Acts, been chosen as of right, the real issues in the case are more conveniently dealt with if heard proximately to this city.

26. It does not seem to me that, save for the Stevens v Head (supra) issue, there is any consideration which persuades me that it is in the interests of justice to order a transfer.

27. The Stevens v Head issue is not one which seems to me should be regarded as, by itself, tipping the balance so as to overturn the choice properly and reasonably made by the plaintiff of this jurisdiction.

28. The application for transfer is refused.