Troy Salter v Linden Hills Pty Limited [1996] ACTSC 10 (1 March 1996)

SUPREME COURT OF THE ACT

TROY SALTER v. LINDEN HILLS PTY LIMITED
No. SC735 of 1995
Number of pages - 5
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 connection with the Territory - plaintiff's solicitor and medical specialists practising in the Territory - whether it is in the interests of justice to transfer the proceedings - geographic proximity - forum shopping - no relevant difference in substantive law between jurisdictions - effect of Workers' Compensation legislation on plaintiff's claim - potential difference in damages in each jurisdiction.

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s5(2)
Workers' Compensation Act 1987 (NSW), ss151E - 151T inclusive

Dawson v Baker (1994) 120 ACTR 11
Stevens v Head [1993] HCA 19; (1993) 176 CLR 433
Daley v Hill, unreported, Supreme Court, Australian Capital Territory,

Higgins J, 13 December 1995

HEARING

CANBERRA, 16 February 1996
1:3:1996

Counsel for the Plaintiff: Mr B Meagher

Instructing solicitors: Scott Sheils and Glover

Counsel for the Defendant: Mr D Nock

Instructing solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:
The application be dismissed.

DECISION

HIGGINS J This is an application on behalf of the defendant to transfer this matter, pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act) to the Supreme Court of New South Wales.

2. On 24 October 1995, the plaintiff issued a writ of summons out of this Court. He pleads a cause of action against the defendant for damages for personal injury. The defendant allegedly employed the plaintiff to muster deer on his property. He was riding a four-wheel motor cycle when an accident occurred resulting in personal injury to the plaintiff. He complains that the accident resulted from the negligence of the defendant.

3. The defendant, after service of the writ, filed memorandum of appearance on 14 December 1995.

4. The deer farm is said to be about 7km out of Harden in the State of New South Wales. The defendant's registered office is at Asquith in that State. The writ was served there.

5. The plaintiff's residential address is said to be 23 Dwyer Drive, Young, New South Wales.

6. Following his injury, the plaintiff was conveyed to Harden District Hospital. He had treatment there and at Young. Specialist treatment has been given by Drs Robson and Tuck, who practice in Canberra. He has, however, attended a specialist at Wagga Wagga, New South Wales. General practitioners attending the plaintiff practise respectively at Young and Harden.

7. It is clear, therefore, that this action has no intrinsic connection with the Australian Capital Territory. The only connection, apart from the principal place of practice of the solicitors for the plaintiff, is the place of practice of treating medical specialists.

8. This application was made on 7 February 1996.

9. The affidavit supporting the application refers also to the fact that at the time the accident occurred, the defendant held a policy of insurance issued by CIC Workers' Compensation (NSW) Ltd pursuant to the provisions of the Workers' Compensation Act 1987 (NSW) (WC Act).

10. The approach to such an application was considered by a Full Bench of this Court in Dawson v Baker (1994) 120 ACTR 11.

11. As I there noted, at 17-18, for a transfer to be ordered in a case such as the present, it must be made to appear that it is in the interests of justice to do so, see s5(2) Cross-vesting Act.

12. Although the discretion I have to exercise is a broad one, I identified in that case a number of matters which will usually be relevant.

13. In my view, in the present case, the relative choice between New South Wales and the Territory would be so finely balanced, but for the jurisdictional difference between the State and the Territory, that no change of venue would be warranted.

14. It is the applicant's contention, however, that the application of the WC Act to the claim does provide a reason for it to "appear" in the interests of justice that the matter be transferred to the Supreme Court of New South Wales.

15. Two considerations were urged upon me. The first was that the WC Act laid down some rules of substantive law which this Court would need to interpret and apply. The defendant submitted that it would be more appropriate for a New South Wales court to perform that function.

16. The second consideration arose from the provisions of the WC Act concerning the assessment of damages. Those provisions would not affect the assessment of damages in this Court, see Stevens v Head [1993] HCA 19; (1993) 176 CLR 433. However, it was submitted that it would be unfair to the defendant and its insurer to deprive them of their legitimate expectation that damages would, in a case such as the present, ordinarily be confined to those allowable under the WC Act, particularly where the event giving rise to potential liability has happened in New South Wales.

Substantive Law
17. Particular reference was made to s151N of the WC Act. That section provides for the defence of contributory negligence. However, the effect of s151N is merely to permit the Court to reduce damages for contributory negligence in accordance with the same rule as would apply under the substantive law of this Territory.

18. Section 151O excludes the defence of volenti non fit injuria but it is unlikely that it would apply to the facts alleged by either of the parties in this case. Section 151O, in any event, does not differ in effect from the substantive law of this Territory.

19. Section 151L of the WC Act does alter the onus of proof in certain respects on the issue of mitigation of damages.

20. However, insofar as s151L provides for a rule of substantive law, it does not seem to require the interpretation of some peculiar statutory rule. Apart from a partial reversal of the onus of proof as to mitigation, little else seems to be changed from the law which, otherwise, would apply in this Territory.

21. It seems to me, therefore, there is no such difference between the substantive law of New South Wales and this Territory as to support a case for a transfer of these proceedings to that State.

Procedural law - plaintiff's choice of forum
22. Subsections 151E to 151T inclusive also provide rules for the assessment of damages in respect of claims such as the present. Without reviewing each of them which so apply, it is clear that the assessment of damages would be done very differently if the matter was to be heard in New South Wales rather than this Territory. It is apparent that the plaintiff would recover significantly less under the statutory rules referred to than under the common law principles which would be applied in this Court.

23. Thus, there is a relative detriment to one party or the other depending on the result of this application.

24. In Daley v Hill, unreported, Supreme Court, Australian Capital Territory, 13 December 1995, I commented, at 4, that,

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 ... it may be that this court would discourage "forum shopping"
and the potential overloading of this Territory's judicial resources
by ordering a transfer.

25. In that case, the potential difference in damages was not great. It would not have been a significant factor in the decision of the plaintiff to sue in this Territory.

26. In the present case, such a conclusion cannot be so readily excluded.

27. All other factors being equal or neutral, it seems to me that the proper approach in the present case is to ask whether, if there had been no real difference in the damages the plaintiff could otherwise have expected, would the plaintiff nevertheless have sued in this Territory rather than New South Wales?

28. I note that Harden, where the accident happened, and Young, where the plaintiff lives, are each within what may loosely be termed "the Canberra region".

29. The commencement of proceedings in a Supreme Court situated at Goulburn, Wagga Wagga or Canberra would not represent an unusual choice for a person resident in Young. Having regard to the plaintiff's choice of a Canberra firm of solicitors, the choice of Canberra rather than Goulburn or Wagga Wagga would not be so unusual as to lead to a conclusion that the choice had been made only, or even predominantly, for the purpose of attracting a more favourable award of damages.

30. It is by no means apparent to me, nor is there any evidence, that the calculation of premiums for workers' compensation policies would be affected in any significant fashion by the availability within New South Wales of the different juristic area of the Australian Capital Territory. There is a similar potential overlap with the Jervis Bay territory, Victoria, South Australia and Queensland. It is also likely that geographic proximity of the potential claimants to the Territory would, at least to some extent, imply that indemnity for at least some claims relating to persons employed in New South Wales might well have, in any event, been required in relation to events occurring in the Territory. Unless the choice of the ACT as a venue appears motivated solely by a desire to take advantage of more favourable procedural laws (forum shopping), any distortion of the New South Wales insurance scheme or abuse of ACT judicial resources will be minimal.

31. It seems to me that, if there is to be a benefit or detriment to fall on one party rather than another resulting from choice of venue then, if there appears to be no other good reason to prefer one venue over another, the question I have posed to myself in relation to this application seems appropriate.

32. I dismiss the application.