Shane Caldbeck v Cowra Shire Council [1997] ACTSC 16 (26 March 1997)

SUPREME COURT OF THE ACT

SHANE CALDBECK v. COWRA SHIRE COUNCIL
No. SC1012 of 1996
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 - whether it is in the interests of justice to transfer the proceedings - neither party having substantive connections to the Territory - no relevant difference between substantive law between jurisdictions - difference between procedural law to be applied between jurisdictions - plaintiff's choice of forum - medical specialists practice in Canberra - geographic convenience to medical witnesses - calculation of damages - convenience to the Court system - right to trial by jury in New South Wales - local community standards.

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

O'Connor v Nationwide News Pty Limited, unreported, Supreme Court, Australian Capital Territory, Higgins J, 24 October 1995 Dawson v Baker (1994) 120 ACTR 11

HEARING

CANBERRA, 7 March 1997 26:3:1997

Counsel for the Plaintiff: Mr B Meagher Instructing solicitors: Scott Sheils & Glover

Counsel for the Defendant: Mr G Stretton Instructing solicitors: Phelps Reid

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 the provisions of the Jurisdiction of Courts (Cross-Vesting Act 1987 (Cross-Vesting Act).

2. I am obliged to accede to that request if it appears to be in the interests of justice so to do.

The facts 3. The plaintiff alleges that on 23 May 1995 he was injured whilst carrying out duties as an employee of the defendant at Cowra in the State of New South Wales. He was assisting in the removal of a concrete driveway and attempted to lift a large piece of concrete onto the back of a truck. He suffered injury to his left knee.

4. No defence has yet been filed, but I am invited to assume that both liability and quantum of damages will be in issue.

5. The plaintiff, since the accident, has been paid compensation according to the laws of New South Wales. He was employed pursuant to a jobskill agreement between the defendant and the Cowra Industry Training Council. The plaintiff resided at Cowra but now resides at Young, New South Wales. The defendant's area of responsibility and base, as its name implies, is in and around Cowra. The lay witnesses, presumably fellow workers, are said to reside in Cowra and Young.

6. There may be another lay witness but that person's place of residence, though likely to be in the Cowra or Young area, is not presently known.

7. The plaintiff initially consulted a general practitioner at Cowra. He also consulted a physiotherapist at Young. He has been referred for treatment to a number of Canberra medical specialists. He was initially referred for assessment to two Sydney specialists. They did not continue treatment. He has, it is alleged, also been treated at Orange Base Hospital and Cowra Hospital.

8. The defendant has referred the plaintiff to two Sydney specialists for medico-legal assessment.

9. It is the defendant's contention that the matter should be referred to the Supreme Court of New South Wales at Orange. However, the defendant also pointed to the availability of other registries including those of the District Court at other regional centres. The defendant is prepared to consent to a transfer to the District Court of New South Wales and to that Court exercising unlimited jurisdiction.

10. For the Supreme Court, Griffith, Bathurst and Goulburn were suggested as other convenient venues. For the District Court, Young, Cowra and Orange. Whilst the Supreme Court does not offer facilities for telephone evidence, as is often used in this Court for medical evidence, the District Court, I was informed, will do so.

Substantive law 11. In this case, there is no relevant difference between the substantive law of this Territory and that of New South Wales. No question arises as to the application of the limitation laws of New South Wales.

Forensic Advantage - procedural law 12. There is, of course, a difference in the procedural law to be applied. New South Wales law would limit the amount of damages to be awarded. However, the advantage or disadvantage as the case may be, is entirely correlative.

The choice made by the plaintiff of the forum and the reasons for that choice 13. The plaintiff contends that his choice of forum is supported by considerations of cost and convenience having regard to the number of specialist medical witnesses who generally practice in Canberra and the availability of a telephone evidence facility.

14. Cowra is, obviously, the geographic centre most connected with the matter. However, there are, presently, according to the current NSW Law Almanac, no civil sittings of the NSW Supreme or District Courts at Cowra. Cowra is, relatively, equidistant from Young, Bathurst and Orange. Young is between Canberra and Cowra and thus more convenient than Bathurst or Orange for the Canberra medical witnesses.

15. The Supreme Court will not sit at Young during 1997 but there will be two sessions of the District Court for civil matters in May and November.

16. Bathurst and Orange have, each one sitting of the Supreme Court in August and October respectively. The District Court sittings will be in February, June and November and May and September respectively.

17. Whilst it cannot be assumed that future sittings will be as for this year, it is indicative of the view that there are Courts available closer geographically to Cowra than Canberra where this cause can be heard.

18. However, it is clear enough that for the plaintiff's medical witnesses the balance of convenience favours Canberra or Queanbeyan. The expectation that the District Court might be the more appropriate court is, of course, somewhat offset by the need to make a further application for transfer from the Supreme Court to the District Court.

19. The defendant has also raised the consideration that, if the action proceeds in NSW it has a right to trial by jury. If it proceeds in this Court, there is no such right though the Court has power to order one, see, for example, O'Connor v Nationwide News Pty Limited, unreported, Supreme Court, Australian Capital Territory, Higgins J, 24 October 1995.

20. It is not clear whether the defendant proposes to insist on trial by jury or whether the parties will dispense with jury trial if the matter proceeds in New South Wales.

Choice of forum 21. As noted, the plaintiff's only reason for choice of forum, other than the forensic advantage of more generous rules for calculation of damages, is geographic convenience to medical witnesses.

Substantive connection to forum 22. As noted, the only connection, apart from the solicitors consulted, is the plaintiff's medical witnesses.

Convenience to the Court system 23. If all other considerations were neutral or evenly balanced, the matter can be seen to be one more appropriately dealt with and decided according to the community standards of New South Wales and, indeed, as it involves a local Council, as close as practicable to the Cowra area. There is, of course, the risk that a local jury, where many would be dependant for various purposes on the local Council, could be perceived as unfairly biased towards the defendant.

Conclusion 24. There is no reason except the convenience of medical witnesses favouring retention of the matter. But for that, it would be perceived as a matter more appropriate for decision by a New South Wales Court.

25. The balance depends on an impression as to the relative possible differences of relevant community standards raised by the apparent or likely issues in the case in the context of a decision either by a jury out of the Cowra district or by a New South Wales Judge as opposed to a Judge of this Court.

26. It will be recalled that a similar consideration persuaded the Chief Justice in Dawson v Baker (1994) 120 ACTR 11 to propose granting one of the three applications considered in that case. Gallop J and I were, on balance, of a different view.

27. In my view, the liability issue does not seem likely to raise issues which would raise matters of local community standards. It is a straight forward work place accident. The presence or absence of jury trial seems fairly neutral. It might have an effect on damages but whether that would favour one party rather than the other cannot be predicted.

28. It is clear that to transfer the proceedings will create great potential inconvenience to the plaintiff's medical witnesses. There is no correlative advantage to the defendant's medical witnesses.

29. The lay witnesses will be inconvenienced by considerable travel whatever the venue. The travel will be greater if the matter proceeds in this Court, or Queanbeyan District Court but only by distances of about 50km.

30. Although the balance is, to my mind, a fine one, I would refuse the application.