Misty Dee Taylor An Infant By Her Next Friend and Mother Gerritdina Dee Taylor v Elbert John Benjamins [1996] ACTSC 36 (26 April 1996)

SUPREME COURT OF THE ACT

MISTY DEE TAYLOR an infant by her next friend and mother GERRITDINA DEE TAYLOR
v ELBERT JOHN BENJAMINS
No. SC374 of 1995
Number of pages - 3
Cross-Vesting

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Cross-Vesting - motor vehicle accident - accident in NSW - parties reside in NSW - vehicles registered in NSW - lack of 'substantial connection' - geographic proximity of events to jurisdiction - medico legal and medical specialists within jurisdiction - balance of convenience - whether in interest of justice to transfer - no relevant difference in substantive law between jurisdictions - no new principle of law.

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

Stevens v Head [1993] HCA 19; (1993) 176 CLR 433
Dawson v Baker (1994) 120 ACTR 11
Salter v Linden Hills Pty Limited, unreported, Supreme Court, Australian

Capital Territory, 1 March 1996
Baffsky v John Fairfax and Sons Ltd (1990) 97 ACTR 1

HEARING

CANBERRA, 23 February 1996
26:4:1996

Counsel for the Plaintiffs: Mr B Meagher

Instructing solicitors: Elrington Boardman Allport

Counsel for the Defendant: Mr G Stretton

Instructing solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:
The application be refused.

DECISION

HIGGINS J This is an application, pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (Cross-vesting Act), for the transfer of this action to the Supreme Court of New South Wales. Action was commenced in this Court on 7 June 1995.

2. The defendant/applicant points to the fact that the matter arises out of a motor vehicle accident which occurred at Queanbeyan in the State of New South Wales on or about 17 October 1994.

3. It appears that, being blinded by sunlight, the defendant failed to see a parked car and collided with the rear of it. The plaintiffs were passengers in the defendant's vehicle. The vehicles involved in the collision were all registered in New South Wales. The plaintiffs and the defendant each reside in Queanbeyan.

4. Immediately following the accident the plaintiffs were examined by Dr V De Sailly, a general practitioner practising in Queanbeyan. The first plaintiff also underwent physiotherapy at the Queanbeyan Physiotherapy Centre.

5. The plaintiffs' solicitors practise and maintain law offices both in Queanbeyan and Canberra. The writ was served on the defendant personally at the office of the plaintiffs' solicitor in Canberra.

6. The defendant's solicitor, Mr Muller, a little disingenuously, if I may respectfully say so, deposed that there was no prejudice of which he was aware to any of the parties in transferring the matter to the Supreme Court of New South Wales.

7. The method of assessment of damages is declared by the High Court to be a matter of procedure, and, hence, determinable according to the lex fori, see Stevens v Head [1993] HCA 19; (1993) 176 CLR 433. That would probably favour the plaintiffs if the application is refused and the defendant if it is granted. In that latter event, the plaintiffs would also be likely to have to face proceedings to further transfer the proceedings to the District Court of New South Wales.

8. Mr Bell, solicitor for the plaintiffs, deposed that in addition to Dr De Sailly, the second plaintiff has attended Dr Newcombe, a Canberra specialist neurosurgeon. She proposes to consult further Canberra specialists. Further, arrangements have been made for the first plaintiff to consult Canberra specialists.

9. The defendant's solicitors have nominated Canberra specialists to examine the plaintiffs for medico-legal purposes.

10. Given the proximity of Queanbeyan to Canberra, approximately 13kms GPO to GPO, this arrangement seems unremarkable.

11. If the matter was transferred to and heard in the Supreme Court of New South Wales, then it would be heard, probably, at Goulburn in the State of New South Wales. If the matter ended up at the Queanbeyan District Court to be heard, the relative distance would, of course, be no more or less convenient geographically than a hearing in this Court.

12. In Dawson v Baker (1994) 120 ACTR 11, I identified a number of factors relevant to the exercise of a discretion to transfer a matter such as the present to another jurisdiction.

13. The question ultimately is whether it appears to me to be in the interests of justice to transfer the matter to the Supreme Court of New South Wales.

14. There is nothing in this case suggested as warranting the transfer save for the lack of 'substantial connection' with the chosen forum. That is, of course, true only in the juristic sense. There is no relevant difference in the substantive law to be applied as a result of the juristic distinction between Queanbeyan or Goulburn on the one hand and Canberra on the other.

15. The difference in procedural law is, I think, relevant but not by reason of any prejudicial effect on the parties of a decision one way or the other. The advantage to one party is off-set by the disadvantage to the others.

16. As I noted in a recent decision, see Salter v Linden Hills Pty Limited, unreported, Supreme Court, Australian Capital Territory, 1 March 1996, there is a risk of distortion of the court and legal systems of New South Wales and this Territory if persons choose the Territory as a forum merely because of a perception that damages would be assessed more favourably or even that the case might be disposed of more quickly if that choice stands.

17. Given the connection to the Territory and its surrounding region to these parties, to the event sued upon, to the plaintiffs' treating and examining medical experts, the choice of this Court could not be seen as inappropriate. Even if it was otherwise inappropriate, there might, of course, be some other proper reason for such a choice, see, for example, Baffsky v John Fairfax and Sons Ltd (1990) 97 ACTR 1, although no such special reason is suggested in this matter.

18. It does not appear to me that it is in the interests of justice to transfer this matter to the Supreme Court of New South Wales.