Zoran Jambrecina v Pioneer Building Products Pty Limited [1999] ACTSC 105 (13 October 1999)

Last Updated: 18 October 1999

Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth

ZORAN JAMBRECINA v PIONEER BUILDING PRODUCTS PTY LIMITED [1999] ACTSC 105 (13 October 1999)

CATCHWORDS

LIMITATION OF ACTIONS - personal injury - plaintiff's action commenced after the expiration of statutory limitation period - defendant seeks to strike out claim - NSW law applied - whether fair and reasonable to grant leave to commence proceedings out of time - relevant factors considered - whether plaintiff would gain little more than statutory no fault entitlements thus making claim futile - damages reasonably substantial - claim unlikely to be futile - in all the circumstances application to extend time granted.

CROSS VESTING LEGISLATION - application to transfer proceedings to NSW - whether NSW law confers on ACT Supreme Court jurisdiction to hear NSW matters - constitutional status of ACT Supreme Court discussed - open to Supreme Court to assume jurisdiction pursuant to NSW cross vesting legislation - whether appropriate to transfer proceedings - relevant factors considered - injury occurred outside ACT but nearby - many witnesses in ACT or nearby - plaintiff now a resident of ACT - geographic considerations and court system's convenience are important where a change of jurisdiction will not alter the legal principles - not established that it would be in the interests of justice to order transfer - application refused.

Workers Compensation Act 1987 (NSW), s 151D

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 5, 11

Limitation Act 1985, s 57

Motor Accidents Act 1987 (NSW)

The Constitution, s 73

The Commonwealth v Verwayan [1990] HCA 39; (1990) 170 CLR 394

Salido v Nominal Defendant (1993) 32 NSWLR 524

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Stevens v Head [1993] HCA 19; (1992) 176 CLR 433

Mason v Murray's Charter Coaches and Travel Services Pty Limited, ACTSC, 25 November 1997, Miles CJ (unreported)

McKain v Miller [1991] HCA 56; (1992) 174 CLR 1

Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95

Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20

Hartley v Venn (1967) 10 FLR 151

Cotter v Workman (1972) 20 FLR 318

Lasker v Nominal Defendant (NSW) [1999] ACTSC 65 (23 June 1999)

Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 73 ALJR 839

Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226

Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591

Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248

Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51

Arrowcrest Group P/L v Advertiser News Weekend Publishing Co. [1993] ACTSC 23; (1993) 113 FLR 57

Tart v Tart, ACTSC, 19 January 1995, Higgins J (unreported)

Alchin v TJ & RF Fordham Pty Ltd, ACTSC, 26 March 1997, Higgins J (unreported)

Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1

Re: The Governor, Goulburn Correctional Centre; Ex parte Eastman, [1999] HCA 44 (2 September 1999)

No. SC 613 of 1998

Judge: Higgins J

Supreme Court of the ACT

Date: 13 October 1999

IN THE SUPREME COURT OF THE )

) No. SC 613 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ZORAN JAMBRECINA

Plaintiff

AND: PIONEER BUILDING PRODUCTS PTY LIMITED

Defendant

ORDER

Judge: Higgins J

Date: 13 October 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The plaintiff's application to extend time is granted.

2. The defendant's application to transfer the proceedings to the New South Wales Supreme Court is refused.

1. On 11 September 1998, the plaintiff commenced proceedings claiming damages for a personal injury sustained on 1 November 1994 during the course of his employment with the defendant.

2. It is the plaintiff's case that, whilst removing paving bricks from a kiln at the defendant's premises at Queanbeyan, New South Wales, he fell when bricks, on which he was then standing, crumbled. It was that fall which led to injury to his spine, feet and ankles with resultant ongoing disability.

3. On 28 June 1999, the defendant gave notice of a motion to "strike out" the plaintiff's claim by reason of its non-compliance with s 151D of the Workers Compensation Act 1987 (NSW). That section imposes a limitation period for the commencement of common law proceedings of three years from the date of injury. That period may be extended with the leave of the court in which the proceedings are commenced.

4. The plaintiff responded on 6 July by applying to extend time to 11 September 1998. That may be taken to be an application for leave to commence those proceedings, despite the expiry of the time bar imposed by s 151D, nunc pro tune.

5. The defendant's application was unsupported by any affidavit evidence. It did not appear to be directed to striking out the originating application. If it had been, it would inevitably have failed. The fact, if it be so, that a time bar has been exceeded is not something which a plaintiff is required to disprove. It is a matter of defence upon which a defendant might or might not rely or be permitted to rely - see eg. The Commonwealth v Verwayan [1990] HCA 39; (1990) 170 CLR 394.

6. If the application had been for summary judgment pursuant to O 17, the defendant was, as at 28 June 1999, out of time to do so as of right. Order 17 r 1 requires such an application to be made within ten days after entering an appearance. An appearance, on behalf of the defendant, alleged to be a body corporate but described without the words "Limited" or "Proprietary Limited", was filed on 2 March 1999.

7. Presumably, the defendant intended to rely on O 17 r 1(2)(b) ie. that "there is a good defence to the action on the merits".

8. Again, absent leave being granted to apply out of time, that application must have failed. However, whilst no evidence was presented to support the application, the terms of s 151D, given the dates of the originating application and of the alleged injury may have sufficed to raise the issue.

9. The plaintiff's application of 6 July 1999 was met by a further application on behalf of the defendant (though the Notice of Motion erroneously purported to make it on behalf of the plaintiff until corrected at the hearing) for an order, pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ("Cross Vesting Act"), that the proceedings be transferred from this Court to the Supreme Court of New South Wales.

10. The documents filed by the defendant in support of that application should have been in the form required by O 78. The degree of non-compliance was merely the failure to comply fully with the endorsement requirements of O 78 r 3(2). Whilst solicitors should not be encouraged to ignore the requirements of the Rules no formal objection was taken to the lack of compliance. I am prepared to accept the application notwithstanding that non-compliance.

The Evidence

11. Four affidavits were filed. Three of them on behalf of the plaintiff in support of the application to extend time and one on behalf of the defendant in support of its application to transfer the proceedings.

12. Mr Dominic Romano, solicitor for the plaintiff, deposed that the plaintiff first consulted him concerning this matter on 27 October 1997. This was a result of an interruption in the receipt of Worker's Compensation payments concerning which the plaintiff sought advice.

13. That led to an enquiry by Mr Romano as to the circumstances and consequences of the injury. By then, of course, the limitation period prescribed by s 151D of the NSW Workers Compensation Act was due to expire on 1 November 1997.

14. It appears that, as at 6 November 1997, Mr Romano had sufficient instructions to advise the defendant that:

"...the said incident [of 1 November 1994] occurred as a result of your negligence and/or unsafe system of work (sic) and in the circumstances [our client] holds you totally responsible for the same and liable to compensate him for the pain, suffering, injures (sic) and loss sustained by him."

15. The defendant was enjoined to notify its "Common Law Insurer".

16. Despite the slight tautology, (unsafe system of work is a particular form of negligence) this letter should have left both the employer and its insurer in no doubt that proceedings for common law damages were likely to be commenced.

17. Correspondence continued with the insurer whilst Mr Romano went about gathering relevant evidence.

18. In its letter of 19 May 1998, the defendant's insurer offered a lump sum settlement under the NSW Workers Compensation Act, ignoring the possibility of common law proceedings. The statement it then made was remarkable for its obscurity:

"Please be advised that you are claiming common law is accessible in this claim as a result of negligence of the employer, but you have not supplied any supporting documentation. Medical evidence on file allows for opinions that contradict your views on common law proceedings."

19. Proceedings had, by then, been commenced though an originating application had not been served. Negotiations, nevertheless, continued, though there had been no action taken to advance the proceedings, so far as the Court is concerned, until recently.

20. The plaintiff deposed that, after the accident, he had two weeks off work. After that, he found the Plant Manager unsympathetic and, as a result, left the defendant's employ.

21. From early 1995 to 27 October 1997 the plaintiff was aware that he was suffering ongoing disabilities. He has no qualifications otherwise than as a labourer. His relationship with his de facto spouse broke down. He says that, until he consulted Mr Romano, at the suggestion of his mother, he had no idea that he could make a claim. He still does not, despite Mr Romano's efforts to explain it to him, understand the difference between workers' compensation and a claim for damages for negligence.

22. The only other contribution from the plaintiff is an affidavit correcting an error in an earlier affidavit.

23. The defendant's applications are supported by an affidavit of 13 July 1999.

24. Mr Edwards, solicitor for the defendant, deposed that the defendant's "corporate address" is Level 1, 369 High Street, Kew, Victoria. The workplace at Queanbeyan, where the accident took place, closed down in December 1997.

25. The defendant, Mr Edwards stated, would be likely to call three lay witnesses concerning the matter. They reside, respectively, at Queanbeyan, Bungendore and Emu Plains, New South Wales. The plaintiff's doctors practice in Canberra, though the defendant has chosen to qualify two Sydney specialist doctors as medico-legal experts.

26. There is said to be no significant cost differential in proceeding at Canberra or at Wagga Wagga. The defendant does not claim any particular prejudice in proceeding in the Territory rather than New South Wales, apart from the difference there would be in the rules relating to the assessment of damages.

The application for extension of time

27. The parties are agreed that s 57 of the Limitation Act 1985 (ACT) requires the Court, in deciding whether it may or should grant leave to commence proceedings out of time, to apply the terms of s 151D of the NSW Workers Compensation Act "as far as is practicable ... in the manner in which it is exercised in comparable cases by the courts of that place".

28. The defendant raises two questions by way of submission, the first is as to the relevance of the limitations placed on New South Wales Courts under Pt 5 of the NSW Workers Compensation Act.

29. The defendant submits that it is not possible, on the state of the evidence before the Court, to determine whether the sum which may be awarded, if the modifications to the assessment of damages imposed by ss 151E to 151R were applicable, would exceed the amount payable by way of compensation benefits under the NSW Workers Compensation Act without proof of fault. Thus, it submits, a New South Wales Court, applying s 151D, might well conclude that it would be futile, in respect of New South Wales proceedings, to permit the extension of time sought, and, accordingly, refuse leave.

30. The test the plaintiff must satisfy, it is accepted, is that referred to in Salido v Nominal Defendant (1993) 32 NSWLR 524. That is, that it appears to be "fair and reasonable" to grant the leave sought. That test does not materially differ from the test provided for by s 36(3) of the ACT Limitation Act.

31. But for the futility point, it seems to me that it would be "fair and reasonable" to extend time. The plaintiff had given notice of his claim promptly. The injury was notified shortly after it happened. Thus s 151C(1) would apply, even if not modified by s 151C(2).

32. The intention to seek common law damages was notified only a few days after the period limited under s 151D expired. Thus the period for which the defendant was entitled to expect an unchallenged right to the qualified protection of s 151D was but a few days - see Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

33. Of course, in considering prejudice to the defendant generally, the whole of the delay from accrual of the cause of action is material. Some prejudice must be assumed but no actual prejudice is here asserted or established.

34. On the other hand, the plaintiff's reasons for delay and his solicitor's relatively prompt action in putting the defendant on notice as to the impending claim provides a basis for a conclusion that, subject to the plaintiff's ignorance of his legal rights, an understandable position, the plaintiff and his solicitors did all that they reasonably could to minimise any possible disadvantage to the defendant or its insurer arising from the delay.

35. The description of the accident and the history of the plaintiff's employment and treatment since then indicates that, if this claim was to be litigated without restrictions being placed on the court's discretion to award damages, and assuming the plaintiff's case was assessed favourably, it is likely that damages would be reasonably substantial. It may be that the evidence is too sketchy to conclude with any particular degree of confidence that the "floor" or "threshhold" limited by s 151G(4) (>$36,000 for "non-economic" loss) and s 151H(2A) ("serious injury" - 25 per cent or more of the maximum under s 66(1) or $48,000 for "economic loss") would be exceeded. However, it is only necessary for me to be satisfied that there is a real chance of those limits being exceeded. If so, the claim cannot be described as futile, even if judged by New South Wales standards.

36. It may be thought to be artificial to make that assumption, given that, if proceedings continue in this Territory, Stevens v Head [1993] HCA 19; (1992) 176 CLR 433 requires the calculation of damages to be, not in accordance with Div 3 of Pt 5 of the NSW Workers Compensation Act, but in accordance with the unmodified common law. By reference to that outcome, the continuation of these proceedings is far from futile. However, there are two reasons for considering the issue on that artificial basis.

37. The first is the defendant's application to transfer proceedings to New South Wales. It is relevant to that question to consider the regime as to damages that would apply if the matter was transferred. It might well be that the application for transfer should be decided first, leaving it to a New South Wales Court to decide if the extension of time should be granted.

38. The second reason is that, in Mason v Murray's Charter Coaches and Travel Services Pty Limited, ACTSC, 25 November 1997, Miles CJ (unreported), Miles CJ held that, in considering the manner in which the discretion to extend time is to be exercised "in comparable cases" as required by s 57 of the ACT Limitation Act, it should be assumed that the same limitations on the award of damages would apply as would be the case if the proceedings were to be determined and damages assessed by a Court of the place of the injury ie. New South Wales. That is, s 57 requires the assumed application of both the substantive and procedural laws of that State. As his Honour expressed it:

"The plaintiff, in my view, can be in no stronger position by issuing a writ in the ACT and then seeking an extension of time to the date of issue of the writ in order to avoid the effect of the law of New South Wales as the lex loci delicti. This court must exercise the discretion to extend the statutory bar as it would be exercised in a comparable case by a New South Wales court and there is no evidence that he is entitled to non-economic loss damages in a New South Wales court for the injury he sues on. In respect of damages for economic loss he still has equivalent rights to workers' compensation in New South Wales."(p 9)

39. Thus, in effect, justice did not require that an extension of time be granted so as to pursue a remedy not practically available under New South Wales law. That is, obviously enough, one way of ameliorating the perceived encouragement given by Stevens v Head (supra) to "forum shopping".

40. On appeal ((1998) [1998] FCA 1430; 159 ALR 45), a Full Court, consisting of Higgins, Drummond and Sackville JJ, upheld that decision. I dissented.

41. The approach of the majority differed not only as between them but also, in part, from that of Miles CJ. The majority did agree that, if the claim had been pursued in New South Wales, the fact that little more would be recovered, over and above the non-fault entitlements, provided for by the NSW Workers' Compensation Act, was relevant to a decision to refuse an extension of time under s 57 of the ACT Limitation Act.

42. However, Drummond J regarded McKain v Miller [1991] HCA 56; (1992) 174 CLR 1 as implying that the substantive laws of New South Wales not only limited the justiciability of the wrong in the courts of the forum, but may:

(56) "...depending upon the nature of the relevant rules of the locus, operate to modify the rules of the forum that would ordinarily govern the determination of the plaintiff's entitlements once the court of the forum has decided that the plaintiff's claim is justiciable there."

43. Thus, as s 56 of the ACT Limitation Act deemed s 151D of the NSW Workers Compensation Act to be a "substantive" law of New South Wales, though a New South Wales Court would characterise it as procedural, it must be applied "to the exclusion of any conflicting Australian Capital Territory limitation law" (57). That is, the source of the time bar is directly from s 151D rather than indirectly or analogously as if it was an ACT law in that form.

44. Sackville J highlighted the criticisms of the High Court decisions of McKain v Miller and Stevens v Head centring on their failure to address the perceived need to prevent forum shopping and avoid confusion.

45. All members of the court accepted that the limitation period applied by s 56 Limitation Act (ACT) was that prescribed by New South Wales law, in that case, as in this case, s 151D, NSW Workers Compensation Act.

46. Sackville J viewed the dominant High Court opinion on the issue of justiciability as being that of Dawson J in Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95, a single judge decision.

47. Miles CJ had been asked to apply s 151D, NSW Workers Compensation Act but without consideration as to whether it had a direct application. Nor was his Honour asked to consider whether, if satisfaction of the terms of s 151D fulfilled only the justiciability test referred to by Dawson J, there remained the need to apply, as part of the lex fori, the provisions of the ACT Limitation Act so far as those provisions might bar an action brought in the Territory in respect of such an injury.

48. As a matter of construction of s 57 ACT Limitation Act, Sackville J construed the expression "in comparable cases" as importing the assumption that proceedings were being brought, not, as was the fact, in the Australian Capital Territory but in New South Wales. That was enough to reject the plaintiff's appeal. That agreed with the view of both Miles CJ and Drummond J.

49. Insofar as this conclusion derived support from satisfaction of the justiciability test in McKain v Miller, it is not clear whether the notion of justiciability Dawson J had in mind has now been extended to include matters of defence under the substantive law of the lex loci delicti so as to over-rule decisions such as Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20 and Hartley v Venn (1967) 10 FLR 151. The expiry of a limitation period, unless the relevant statute provides otherwise, is a matter of defence which has no relevance to the continued existence of the cause of action. Indeed, a party might be prohibited from reliance upon such a defence, even if otherwise available - see Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394.

50. In Mason (supra), Miles CJ had raised the issue as to whether "court" in s 151D was to be confined to a New South Wales court. If s 56 of the ACT Limitation Act has the effect of applying, not merely the terms of s 151D as if it was an ACT law but that law itself, then this Court would have no jurisdiction to grant an extension of time under it. That would, of course, imply that the legislature had provided for a test under ss 56 and 57 that no Court in this Territory could apply in the exercise of its Territory jurisdiction.

51. Before the passage of the Cross-Vesting Acts, both of the Commonwealth and of New South Wales, such a finding would lead to a dismissal of the relevant application - see Cotter v Workman (1972) 20 FLR 318 (unless s 56 was construed as a unilateral cross-vesting law). This Court could not have exercised the jurisdiction of a New South Wales Court.

52. However, s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) confers jurisdiction on the ACT Supreme Court to determine a "State matter" ie to exercise the jurisdiction of the Supreme Court of New South Wales. Master Connolly in Lasker v Nominal Defendant (NSW) [1999] ACTSC 65 (23 June 1999) found that this Court could, in an action against the Nominal Defendant (NSW), though that entity was amenable to suit only in an action founded on a cause of action arising in New South Wales, exercise State jurisdiction to entertain an action against that entity in this Court by virtue of that legislation. That then raised the question of the application of s 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). That section confers a discretion to apply or not the laws of New South Wales which are rules of evidence and procedure. The Master considered that the procedural provisions of the Motor Accidents Act 1987 (NSW), limiting damages, should be applied. It was not necessary for him to decide whether those provisions were mandatorily applied under s 11(b) or by way of discretion under s 11(c).

53. The latter decision, however, accepted that the New South Wales Parliament could validly vest State jurisdiction in this Court. This Court is not a court "created by the Parliament" within the meaning of s 72 of The Constitution (see Re The Governor, Goulburn Correctional Centre; Ex parte Eastman, [1999] HCA 44 (2 September 1999)). Thus the High Court decision in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 73 ALJR 839, leaves the issue open as to whether NSW jurisdiction could validly have been conferred on this Court. That latter decision affirmed the power of the Parliament to confer jurisdiction in respect of matters arising under a law of a Territory upon a federal court. It did not address the question as to whether a Territory Supreme Court, created to exercise judicial power in and for a Territory, was capable of being invested with State jurisdiction. It could be regarded as anomalous for an ACT Court to be able to exercise State jurisdiction as well as federal jurisdiction, a power denied other courts created by the Commonwealth Parliament or under the authority of its laws. In Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248, the High Court denied that the ACT Legislative Assembly had power to impose duties of excise. Brennan, Deane and Toohey JJ perceived the question as being whether the power with respect to territories granted by s 122 of The Constitution is qualified by either s 52(1) or s 90. Section 52(1) was regarded as immaterial. The question was not whether a law made under s 122 was or was not a law of the Commonwealth but whether s 90 precluded the Parliament from delegating to a Territory legislature a power to levy excise in a Territory. That preclusion was supported by a denial to the Commonwealth of a power in levying excise, whether directly or by a delegated legislative power, to discriminate between States or parts thereof - see ss 51(iii) and 99 of the Constitution. Nor was the Assembly, in their Honour's view, a mere delegate of the Parliament, exercising, insofar as it could, a power to raise excise duties in the Territory.

54. Gaudron J agreed that the Assembly was not a delegate of the Parliament. Her Honour noted that the apparently plenary power conferred on the Parliament under s 122 "must yield to a constitutional provision which mandates a situation for the whole of the Commonwealth (288)". It is, therefore, also subject to the requirement that duties of excise be uniform throughout the Commonwealth. It must therefore be "exclusive" not merely of State Parliaments but also of any legislature created for the government of any Territory.

55. However, both Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 and Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591 were predicated on the now discredited view that s 122 remains unqualified by other constitutional provisions applying generally to the powers of the Commonwealth viz-a-viz the States - (see also Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513). Nevertheless, their authority was affirmed in Eastman's case (supra).

56. It suffices to say that it is at least arguable that Re Wakim does not declare invalid a New South Wales law conferring jurisdiction in NSW State matters on this Court.

57. Thus if, as Miles CJ suggests, an exercise of the power to extend time under s 151D might require the exercise of that power by a New South Wales court, the weight of authority would favour the view that it is open to this Court to assume jurisdiction to do so pursuant to s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

58. However, for myself, I would prefer the view that s 56 of the Limitation Act (ACT), does not require this court to assume the jurisdiction of the NSW Supreme Court in order to determine an application to extend time. It is the law of the ACT, including its choice of law rules, which applies the provisions of s 151D of the NSW Workers' Compensation Act.

59. It seems to me that this is clearly a case in which a Court in New South Wales would extend time.

60. There is, however, a further issue. There is an application to transfer the proceedings to the Supreme Court of New South Wales. The defendant submits that, if that application was to be granted, it would be appropriate for the proceedings to be transferred without an order extending time being made. There is some force in that submission. I will, therefore, proceed to consider the transfer application.

Cross-Vesting Act - Application for transfer

61. The first point made by the defendant is that there is no constitutional impediment arising from the Wakim case to the transfer of these proceedings to a NSW Court. Even if there is some constitutional barrier to the conferral by a State Parliament of State judicial power upon this Court, there is no barrier suggested to either the transfer of proceedings from this Court to a State Court or to the conferral of the judicial power exercisable under s 122 upon a State Court.

62. In Capital TV and Appliances Pty Ltd v Falconer (supra) the High Court rejected a submission that an appeal lay as of right from the ACT Supreme Court to it. The ACT Supreme Court Act limited those particular appeal rights so as to require the appellant to obtain special leave from the High Court. The appellant relied upon s 73 of The Constitution which states:

"The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences:

(ii) Of any other federal court..."

63. It would have been sufficient to dispose of the appellant's contention to hold that, even if the ACT Supreme Court was a "federal court", the Parliament had prescribed an exception or regulation on the appeal rights referred to.

64. Barwick CJ simply applied Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226. If the ACT Court of Petty Sessions was not a "federal court", neither was the Supreme Court, his Honour held. That was not because his Honour was persuaded that that conclusion was correct. However, in view of prior authority:

(598) "...the doctrine of the duality of the judicial power was so deeply entrenched that it ought not now to be overturned."

65. It was, therefore, unnecessary for his Honour to consider whether the different mode of creation and status of the Court of Petty Sessions, together with the control and supervision of it by the Supreme Court, would have permitted its members to exercise judicial power in the Territory even if the Supreme Court itself was a federal court - see eg. Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84.

66. In his Honour's view, this Court was neither a federal court nor a court invested with federal jurisdiction within the meaning of s 73. McTiernan J concurred but regarded the conclusion to which Barwick CJ came as not only consistent with prior authority but also "correct" (602).

67. Menzies J came to the same conclusion. His Honour confirmed the view, expressed in Spratt v Hermes, that it is open to the Parliament, as it has done, to confer on a court created by it otherwise than as a federal court, jurisdiction with respect to matters arising under the Constitution or under a law made by the Parliament. The exercise of judicial power by a Territory Court is, his Honour said, "to be regarded as part of the judicial power of the Commonwealth, but as outside federal jurisdiction" (607). Windeyer, Owen, Walsh and Gibbs JJ agreed.

68. However, Walsh J seemed to regard the result as one of Parliamentary intention rather than of constitutional restraint. That is, the Parliament could have created a federal court to exercise jurisdiction in the various Territories but had not done so (617). That would, arguably, have placed such a court outside the range of Australian courts which could be cross-vested with State jurisdiction.

69. It is unnecessary to consider whether, in the case of Territory Courts, though not Federal Courts exercising federal jurisdiction, there is implied some limitation on the extent to which non-judicial functions may be concurrently conferred or the extent to which the institutions and their judicial officers must conform to the principles affirmed by the High Court in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 and Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51. Some comments in Eastman's case (supra) would support the view that they must do so. However, the Cross-Vesting Acts create no issue in that regard.

70. There is no appeal from a decision made under s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (see s 13). There is, therefore, a need for decisions made under s 5 to be as consistent as possible. That is difficult, given the width of the discretion to determine what, in an individual case, is "in the interest of justice".

71. In Dawson v Baker (1994) 120 ACTR 11, a Full Court of this Court attempted to formulate some guidelines for the exercise of that discretion. I will not repeat what was there stated. In this case, the defendant urges a transfer of the proceedings by pointing out that the cause of action sued upon arose out of events occurring in New South Wales, albeit in the nearby City of Queanbeyan. The plaintiff is a resident of this Territory, though, at the time he commenced these proceedings, his address was at Queanbeyan.

72. The defendant's place of business was at Queanbeyan, though it is a company registered in Victoria.

73. All witnesses as to liability likely to be called by the defendant reside in New South Wales, though most are near to the ACT. Most of the medical witnesses will be Territory practitioners. In any event, it is not unusual for witnesses, even most witnesses, in a matter unarguably connected with the Territory, to have a non-Territorial place of residence.

74. It is important that matters not be permitted to remain in this court where their real connection and the balance of convenience leads to a conclusion that justice, including the convenience of the court system generally, as well as the public interest in discouraging "forum shopping", demands a transfer.

75. An example of the latter situation is Arrowcrest Group P/L v Advertiser News Weekend Publishing Co. [1993] ACTSC 23; (1993) 113 FLR 57.

76. Nevertheless, place of injury and residence of witnesses out of the jurisdiction does not mandate removal. In Tart v Tart, ACTSC, 19 January 1995, Higgins J (unreported), the balance of convenience was sufficient to warrant refusal of an application to transfer proceedings, there being no legal issue peculiar to New South Wales law. That balance was purely based on geographic considerations.

77. I made that point also in Alchin v TJ & RF Fordham Pty Ltd, ACTSC, 26 March 1997, Higgins J (unreported).

78. Where the change of jurisdictions makes no jurisprudential difference, ie. if there is no real difference in applicable legal principles, the factors of geographic and court system convenience assume greater weight. As I have previously put it, the question to be asked in such a case is whether, if the Territory was part of New South Wales, the plaintiff would have chosen to commence proceedings here rather than elsewhere.

79. If the answer is "no" then it is likely that the dominant reason for commencement of proceedings in the Territory is forum shopping ie seeking a more favourable procedural regime, despite the lesser convenience otherwise.

80. Of course, there may be reasons other than mere geographic convenience which would support a view that it is appropriate for a plaintiff to choose to sue in the Territory though the cause of action is a "foreign" one - eg. see Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1.

81. In the present case, even if the more favourable damages regime in the Territory was to be ignored, the proximity of the plaintiff's residence, place of injury and treatment, even the proximity of residence of likely lay witnesses, would have led to proceedings being commenced as readily in Canberra as in Queanbeyan. It is fanciful to suggest that any other venue such as Wagga Wagga would have suggested itself as more convenient.

82. I am not persuaded that it would be in the "interests of justice" to order a transfer to the Supreme Court of New South Wales, particularly where, according to the defendant, the nearest available NSW Supreme Court registry is at Wagga Wagga.

83. It is not appropriate to transfer the proceedings out of this Court. It is clear to me that a New South Wales Court would extend time. There is, therefore, no reason for this Court not to make that order. It would be procedurally ludicrous to transfer only the application to extend time.

Conclusions

84. The plaintiff's application to extend time is granted. The defendant's application to transfer the proceedings to the New South Wales Supreme Court is refused.

85. I will hear the parties as to costs.

I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 13 October 1999

Counsel for the Plaintiff: Mr G Lunney

Solicitor for the Plaintiff: Romano & Co

Counsel for the Defendant: Mr B A Meagher

Solicitor for the Defendant: Phelps Reid

Date of hearing: 30 July 1999

Date of judgment: 13 October 1999