Thora Alice Turner v William Bowell [1995] ACTSC 39 (13 April 1995)

SUPREME COURT OF THE ACT

THORA ALICE TURNER v. WILLIAM BOWELL
No. SC272 of 1994
Number of pages - 4
Courts And Judicial System - Motor Vehicles And Transport

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Courts And Judicial System - jurisdiction - application to transfer proceedings to Supreme Court of New South Wales - cross-vesting - relevant considerations - relevance of location of witnesses and convenience.

Motor Vehicles And Transport - collision between motor vehicle and pedestrian - claim for damages.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s5(2)(b)

Service and Execution of Process 1992 (Cth)
Motor Accidents Act (1988) (NSW)

Cotter v Workman (1972) 20 FLR 318
Dawson v Baker (1994) 120 ACTR 11
Chapman and Jansen (1990) FLC 77,952
Commonwealth v Silverton Ltd, unreported, Supreme Court, Australian Capital

Territory, Gallop J, 14 February 1991

HEARING

CANBERRA, 24 February 1995
13:4:1995

Counsel for the Plaintiff: Mr R Mildren

Instructing solicitors: Worth and Co

Counsel for the Defendant: Mr G Stretton

Instructing solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
The application to transfer this matter to the Supreme Court of New South Wales be refused.

DECISION

HIGGINS J This is an application on behalf of the defendant for an order transferring the proceedings to the Supreme Court of New South Wales pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act).

2. The writ of summons herein was issued on 3 May 1994. It was served personally on the defendant on 20 May 1994 at 65 Cameron Road, Queanbeyan in the State of New South Wales.

3. An appearance was entered on 29 August 1994. However, by then, interlocutory judgment had been obtained in default of appearance on 1 August 1994. On the defendant's application, that judgment was set aside by Master Hogan on 7 October 1994, in the exercise of his discretion to do so.

4. A defence was filed on 11 October 1994. It denied all relevant allegations in the statement of claim and alleged that there was contributory negligence on the part of the plaintiff.

5. The presesnt application was initiated by notice of motion dated 9 February 1995. It was heard on 24 February 1995.

6. The cause of action alleged arose out of an incident which occurred on 6 April 1993 at Queanbeyan in the State of New South Wales. The defendant was driving his motor vehicle registered number NSW AAA-34E, in a northerly direction in Lowe Street. The plaintiff was walking across the road and collided with the defendant's vehicle. The defendant says that the collision happened near the intersection of Lowe Street, Farrer Place and Monaro Street.

7. That intersection was then (and still is) controlled by traffic lights. Those lights include pedestrian lights. The defendant says that he had a green light and that the plaintiff crossed Lowe Street about three to four car lengths north of that crossing.

8. The plaintiff then resided at 30 Furlong Road, Queanbeyan. She has not alleged any subsequent change of address.

9. Her solicitor deposed that the plaintiff's injuries, being principally a fractured lower right leg, knee and left collar bone, were treated at Woden Valley Hospital and at John James Memorial Hospital. Each is situated in the Australian Capital Territory. She also received initial hospital treatment at Queanbeyan Hospital. The specialist medical practitioners who attended the plaintiff practise in the Australian Capital Territory.

10. The plaintiff proposes to call a number of witnesses as to liability. Each of these witnesses reside at Queanbeyan but are employed in Canberra.

11. The medico-legal examinations requested by the defendant have been conducted by medical practitioners who practise in Canberra.

12. Proposed non-medical witnesses relevant to damages are all residents of the Australian Capital Territory.

13. The plaintiff's disabilities, though serious, would be unlikely to attract an award of damages, if she was successful, exceeding the jurisdiction of the District Court of New South Wales.

14. It is apparent that, but for the provisions of the Service and Execution of Process 1992 (Cth) and the Cross-Vesting Act, this Court would have lacked jurisdiction to entertain this action if the defendant had declined to submit to its jurisdiction: see Cotter v Workman (1972) 20 FLR 318.

15. It is apparent, also, that there is no factor present which would make the District Court of New South Wales, if sitting at Queanbeyan, any more or less convenient for the parties and their witnesses than this Court if the matter goes to a hearing. I have no reason to suppose that the time between the matter being ready for hearing and receiving a hearing would greatly differ.

16. There are no related proceedings in either jurisdiction and, whilst the law of the State of New South Wales will govern liability, no novel, difficult or contentious question is likely to arise. The content of the law and its application to the facts as found would be the same in either jurisdiction.

17. I am required by s5(2)(b) of the Cross-Vesting Act to make an order transferring the matter to the Supreme Court of New South Wales if:

(iii) it is otherwise in the interests of justice that the
relevant proceedings be determined by the Supreme Court of
another State or Territory.

18. There is no doubt that, if this matter came on for hearing in the Supreme Court of New South Wales, the nearest venue would be Goulburn. That would be substantially more inconvenient to the parties than if the venue was at Queanbeyan or Canberra. However, I understand that the defendant would consent to a transfer of the matter from the Supreme Court of New South Wales to the Queanbeyan registry of the Queanbeyan District Court of New South Wales.

19. That does, of course, require additional procedural steps to be taken which will, to some extent, increase the costs of the proceedings and result in some further delay. The extent of the increase in costs and delay cannot be precisely quantified.

20. As I noted in Dawson v Baker (1994) 120 ACTR 11, such additional expense and delay is a relevant consideration favouring the refusal of a transfer.

21. The "interests of justice" require the weighing up of many factors. There is no question in this case of a specialist jurisdiction being exercised: see, for example, Chapman and Jansen (1990) FLC 77,952, or, in contrast, a more usual jurisdiction, Commonwealth v Silverton Ltd, unreported, Supreme Court, Australian Capital Territory, Gallop J, 14 February 1991.

22. It is conceded that there may be some forensic advantage lost by the plaintiff, if a transfer is ordered, by virtue of the application to the assessment of damages in that event of the Motor Accidents Act (1988) (NSW). However, whilst that may favour the choice made by the plaintiff where the choice of forum was made for sound forensic reasons rather than for mere "forum shopping" to obtain the best advantage, it is of little assistance in the present case. In the present case, there was no real difference likely to substantially affect the end result.

23. On balance, therefore, it being the case that the only effect of a transfer would be to add further procedural burdens to the plaintiff without any practical benefit, and there being no real prejudice, not even in relation to assessment of damages, to the defendant or his insurer, it seems to me that a transfer should be refused.

24. However, it should be noted that the considerations were so finely balanced that, had the positions been reversed, I would not have ordered a transfer to the Territory either, assuming the effective choice to have been between Queanbeyan and Canberra.

25. I will hear the parties as to costs.