Graham Robert Alchin v Tj & Rf Fordham Pty Ltd [1997] ACTSC 15 (26 March 1997)

SUPREME COURT OF THE ACT

GRAHAM ROBERT ALCHIN v. TJ & RF FORDHAM PTY LTD
No. SC683 of 1996
Number of pages - 6
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 - whether it is "in the interests of justice" to transfer the proceedings.

Jurisdiction - no relevant difference in substantive law between jurisdictions - plaintiff's choice of forum - treating medical specialists situated in the Territory - geographical proximity - expeditious hearing - calculation of damages - balance of convenience for parties - forum shopping - limitation law in New South Wales.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Limitation Act 1985 (ACT), s56

Dawson v Baker (1994) 120 ACTR 11 Gardner v Wallace [1995] HCA 61; (1995) 70 ALJR 113 Daley v Hill, unreported, Supreme Court, Australian Capital Territory, Higgins J, 13 December 1995 Daren v Pantos Electric Co Pty Ltd, unreported, Supreme Court, Australian Capital Territory, Gallop J, 4 July 1996 McIntosh v Southern Meats Pty Ltd t/as Harden Abattoirs, unreported, Supreme Court, Australian Capital Territory, Higgins J, 26 February 1997

HEARING

CANBERRA, 28 February 1997 26:3:1997

Counsel for the Plaintiff: Mr B Meagher Instructing solicitors: Elrington Boardman Allport

Counsel for the Defendant: Mr K Cush Instructing solicitors: McCulloch & Buggy by their agents Allen Allen & Hemsley

ORDER

THE COURT ORDERS THAT:
The application be refused.

DECISION

HIGGINS J
1. This is an application by the defendant to transfer these proceedings to the Supreme Court of New South Wales pursuant to s5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (Cross- Vesting Act).

2. The question is whether it "appears" to this Court that it is "in the interests of justice" to transfer these proceedings.

The facts 3. The plaintiff, on 15 August 1996, commenced proceedings in this Court claiming damages for personal injury arising out of an industrial accident occurring on or about 2 March 1995.

4. It is alleged that whilst employed by the defendant at TRN Bogo Quarry at Bookham in the State of New South Wales, the plaintiff, in the course of his duties, attempted to lift an air compressor thereby suffering spinal injury.

5. At the time, and to date, the plaintiff was a resident of New South Wales, residing at Bowning. The defendant has its registered office and principal place of business at Cobbitty in the State of New South Wales.

6. It is alleged that there were two eye-witnesses to the accident. Each resides at Bookham.

7. Medical treatment was sought by the plaintiff. He consulted a general practitioner at Yass, in the State of New South Wales, although specialist treatment has been given by two Canberra specialists.

8. The pleadings were closed on 30 January 1997. The defendant denies liability and alleges contributory negligence.

9. It is appropriate, in considering the manner in which the discretion conferred under s6, Cross-Vesting Act, should be exercised, to follow the guidelines endorsed in Dawson v Baker (1994) 120 ACTR 11.

Application of substantive law 10. If the matter proceeds in this Court, the substantive law to be applied, subject to it being a matter which, if litigated in New South Wales, would be actionable there, so far as the action in tort is concerned, is that of this Territory, see Gardner v Wallace [1995] HCA 61; (1995) 70 ALJR 113. If it proceeds in New South Wales, the substantive law to be applied will be that of New South Wales. The substantive law, so far as the claim in contract is concerned, would be that of New South Wales, whether the matter proceeds in New South Wales or the Territory.

11. However, there is no relevant difference between either system of law. In particular, no statutory provisions peculiar to the State of New South Wales will need to be interpreted and applied.

Forensic advantage or detriment 12. It is clear that the procedural law of the forum will confer an advantage on the plaintiff in relation to the calculation of damages. Conversely, if the matter is transferred to New South Wales, the defendant will obtain a correlative advantage.

13. That factor, whilst making it important to ensure that matters which ought to be litigated in New South Wales, are litigated there, does not assist to provide, in a case such as the present, a preference for one jurisdiction over the other.

The choice by the plaintiff of the forum and the reasons for that choice 14. The plaintiff is, of course, entitled to choose this forum. But for the Cross-Vesting Act, this Court, subject to a forum non conveniens argument, would not be justified in declining jurisdiction. It is clear that the test for ordering transfer under the Cross- Vesting Act does not require a conclusion that the forum chosen would be unjust or inconvenient. It is enough that the alternative forum is considered more appropriate having regard to the interests of justice.

15. In this case, the plaintiff advances two reasons, apart from forensic advantage, for his choice.

16. The first is that his treating medical specialists are situated in Canberra. The second is that, compared with this Court, the Supreme Court of New South Wales could not, in the regional centres geographically proximate, provide a hearing without undue delay.

17. In the overall context of this litigation, including an impression of the issues of liability and damages, it does not seem to me that those factors, given the availability of the District Court of New South Wales at the same and other regional centres of New South Wales weigh heavily or even appreciably in favour of the plaintiff's choice of forum.

18. I have little doubt that the dominant reason was the procedural advantage conferred by the lex fori in the calculation of damages.

Substantive connections with the forum 19. The only connection with the territory over which this Court has jurisdiction is the presence of two significant expert medical witnesses.

20. Otherwise, there is no substantive connection with the forum.

Balance of convenience of parties and witnesses 21. The defendant points to the availability of Supreme Court hearings in Wagga Wagga or Goulburn as being substantially no less convenient than Canberra. The defendant also undertakes to consent to the transfer of the matter from the Supreme Court of New South Wales to District Courts at "Yass, Young or Queanbeyan" with unlimited jurisdiction.

22. The defendant has sought to qualify specialist medical witnesses at Sydney and Campsie.

23. Neither Goulburn or Wagga Wagga is geographically more convenient than Canberra, though Goulburn is only marginally less so.

24. Queanbeyan and Canberra are virtually contiguous. Of the remaining District Court venues, Yass is closer to Bowning or Bookham than Canberra.

25. It follows that to achieve equal or not dissimilar convenience to parties and witnesses, the matter would need to be transferred, first to the Supreme Court of New South Wales and then to the District Court of New South Wales at Yass or Queanbeyan.

26. Yass does not always schedule civil sittings. Queanbeyan does, but only twice yearly.

27. Of course, at greater geographic inconvenience, the matter could be transferred to another regional centre.

28. I have to conclude, therefore, that on the admittedly vague material before me, the balance of geographic convenience favours this Court.

Convenience to the Court system 29. I noted in Daley v Hill, unreported, Supreme Court, Australian Capital Territory, 13 December 1995, that, if it appeared that the only reason for choosing this forum was to gain a procedural advantage, then this Court, to discourage "forum shopping", might well order a transfer.

30. I was referred to the decision of Gallop J in Daren v Pantos Electric Co Pty Ltd, unreported, Supreme Court, Australian Capital Territory, 4 July 1996, where his Honour ordered a transfer of proceedings. His Honour said at 3, In deciding applications brought pursuant to the Cross-Vesting Act, it is important to ensure that Territory courts deal with matters which are essentially Territory matters and that State courts deal with matters which are essentially State matters, otherwise there can arise problems which the Cross-Vesting Act was designed to correct. That case, also an industrial accident, was one which occurred at Queanbeyan. However, the defendant had its registered office at Fyshwick in the ACT. The plaintiff had been treated by Canberra medical specialists.

31. His Honour assumed that if the matter was to be litigated in this Court, the substantive law to be applied would be that of New South Wales. Save to found justiciability, that now seems to be incorrect, see Gardner v Wallace [1995] HCA 61; (1995) 70 ALJR 113 per Dawson J, and the discussion of that case in McIntosh v Southern Meats Pty Ltd t/as Harden Abattoirs, unreported, Supreme Court, Australian Capital Territory, Higgins J, 26 February 1997.

32. However, that consideration strengthens the point made by his Honour. The major advantage to the plaintiff in choosing Canberra rather than Queanbeyan was the lack of limitation upon the calculation of damages in this Territory compared with New South Wales. The substantive law of the Territory would also apply in the determination of liability as between the parties although that would have produced no relevant difference.

33. There was, in Daren v Pantos Electric Co Pty Ltd (supra), a further consideration. The relevant limitation period had expired. Section 56 of the Limitation Act 1985 (ACT) applied. That requires the application of the New South Wales limitation laws to the matter. His Honour said at 7, If the proceedings had been instituted in New South Wales, the discretion to extend time would no doubt be exercised by a New South Wales court against a background of a legislative policy in New South Wales of limiting time periods to three years. His Honour acknowledged that, if an application to extend time had been made in this Court, s56 required this Court to exercise its discretion as if it was a relevant court in New South Wales.

34. However, that factor seems to have tipped the balance towards making a New South Wales court more appropriate in the interests of justice.

35. The decision to transfer is discretionary. The weight to be given to factors favouring transfer rather than those tending otherwise must be a matter of impression. It is reasonable to consider that it would be more appropriate for a New South Wales court to exercise the discretion to extend a time bar imposed by reference to New South Wales law rather than to engage in the indirect process. There is, however, no such factor involved in this matter.

Conclusion 36. No special factor requiring the application of New South Wales law, referable to a separate and different legislative policy, arises in this case.

37. It seems to me that the critical point in this case, is that the balance of geographic convenience favours the plaintiff's choice of forum. As a result, it can be seen as a proper choice of forum apart from the procedural advantage to the plaintiff and correlative procedural disadvantage to the defendant.

38. I would refuse this application.