New South Wales Supreme Court CITATION : H v Longas Solomon & Ors [2000] NSWSC 531 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223/98 HEARING DATE(S) : Tuesday 13 June 2000 JUDGMENT DATE : 15 June 2000 PARTIES : H v Longas Solomon & Ors JUDGMENT OF : Michael Grove J at 1 COUNSEL : M. Joseph SC (Plaintiff/Respondent) A. Hewitt SC (Defendant/Applicant) SOLICITORS : Carroll & O'Dea (Plaintiff) Curwood & Partners (Defendant) CATCHWORDS : Cross-Vesting - Tort and Breach of Fiduciary Duty Alleged in Queensland - Balance of Interests of Justice LEGISLATION CITED : Jurisdiction of Courts (Cross Vesting) Act 1987 Choice of Law (Limitation Period) Act 1993 CASES CITED : Bankinvest AG v Seabrook 1988 14 NSWLR 711 Taylor & Reidy v The Trustees of the Christian Brothers 1994 Aust Torts R 81-288 DECISION : Motion Dismissed THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Thursday 15 June 2000 20223/98 - H v LONGAS SOLOMON & ORS JUDGMENT 1 HIS HONOUR : On 20 July 1998 the plaintiff (who is to be referred to by the letter "H") issued a statement of claim seeking damages for assault, negligence and breach of fiduciary duty. The first defendant is alleged to have assaulted the plaintiff during 1966 and/or 1967 whilst the plaintiff was a pupil and the first defendant a more senior pupil and designated prefect at Rockhampton Grammar School (the school). At relevant times both were resident boarders. The second to seventh defendants inclusive were trustees of the school at the relevant time. All of them with the exception of the seventh defendant are now deceased. It was mentioned by senior counsel appearing for the seventh and eighth defendants that the eighth defendant, sued as "the trustees of Rockhampton Grammar School" should correctly be sued as a body corporate. No point is taken in relation to its identification. 2 This is a motion by the seventh and eighth defendants (I shall refer to these moving parties simply as "the defendant") seeking transfer of the whole of the proceedings to the Supreme Court of Queensland pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987. The power of this Court to effect that transfer is enlivened if it appears that it is in the interests of justice that the proceedings be determined in Queensland. There is no presumption that this Court, the jurisdiction of which has been properly invoked should exercise that jurisdiction. It is inapt to speak of an onus on any party to satisfy the Court that an order should, or should not, be made. Bankinvest AG v Seabrook 1988 14 NSWLR 711. 3 The first defendant did not appear. The plaintiff claims that whilst he was at the school the first defendant subjected him to a series of serious sexual assaults. He reported the circumstances to the headmaster. Shortly afterwards the first defendant was moved from what had been the dormitory shared by the plaintiff and the first defendant. The plaintiff also spoke to the boarding master who told the plaintiff that "it" would not happen again. "It" did not. Both the headmaster and the boarding master are identified in an affidavit filed in the motion. It is an agreed fact that the former boarding master is now a resident of the Australian Capital Territory. 4 It is the contention of the defendant that the relevant law relating to extension of time for the plaintiff to commence his action even if heard in New South Wales will be the substantive law of Queensland as a consequence of the Choice of Law (Limitation Period) Act 1993. Senior counsel for the plaintiff expressly acknowledged this and as a corollary, senior counsel for the defendant acknowledged that, if the proceedings were transferred to Queensland, no point could or would be taken that the relevant application for extension of time had not been made within the time prescribed for making such application. 5 Reference was made to Taylor & Reidy v The Trustees of the Christian Brothers 1994 Aust Torts R 81-288. As all similar applications must, that case turned upon its own facts and given the nature of the allegations it was perceptible that an extended and extensive examination of the conduct of several institutions at the locus delicti were likely to be engaged in by the defendants. This case is distinguishable in that it involves, in a broad sense, the supervision of the conduct of a single malefactor and the reaction (or lack of it) by those then in authority at the school. 6 It is not suggested that the plaintiff has resorted to New South Wales in order to found jurisdiction here. He completed his education from 1970 at a boarding school in Sydney and, gleaning information from the histories recorded by medical examiners exhibited to the affidavits in support of the motion, he has substantially been a resident in this State since then. He is an enrolled professional practitioner here. He has sought medical assistance for what are alleged to be the consequences of the torts and breach of fiduciary duty in this State. Including Dr Westmore, whom it is agreed has been qualified on behalf of the plaintiff as an expert, there are six relevant potential medical witnesses who practise in Sydney. 7 With the exception of the assertions of failure to employ competent staff and to dismiss incompetent staff, the particulars supplied by the plaintiff in his pleading do not suggest that the appropriate preparation of the defendants' case is likely to require the attendance at the hearing of significant numbers of former teachers or students. I recognize that more precise particulars are likely to be required as interlocutory matters. Insofar as the defendant would wish to canvass or interview former pupils or teachers, the location of the ultimate hearing is inconsequential. Nor is it germane to the present application that many persons have died since 1966-67. The affidavit in support of the motion describes these deceased as those who would "normally be necessary witnesses" but offers no elaboration by way of identity, category or description of anticipated testimony. 8 It is contended that likely witnesses able to speak about good management practice of a boarding school in Queensland thirty to forty years ago would be likely to come from Queensland. It is not immediately apparent that there would be found discriminated standards of care differing between the management of a school in a Queensland regional city such as Rockhampton from, say Bathurst or Lismore in New South Wales. 9 I acknowledge that no challenge is made to the circumstances that relative expedition of hearing is available in Queensland and that reception of expert evidence by telephone (video?) link is facilitated in the Queensland Supreme Court. 10 It would be less than candid of me not to record my intuitive leaning to prefer litigation to be conducted in the region of relevant events, however as I have already mentioned, my statutory duty is to make a determination in accordance with the interests of justice in the particular case. I do not doubt that the interests of justice would be served by a hearing either in the Supreme Court of Queensland or New South Wales but, convenience being an element contributing to the interests of justice, I have concluded that the balance has been tipped in favour of the action remaining in New South Wales. 11 The apprehensions in respect of presentation of the defendants' case are vague and expressed in generalities. The summoning of witnesses from Queensland is not demonstrated to be more than hypothetical. Three principal potential witnesses are the plaintiff, the former headmaster and dormitory master. Two of these are in New South Wales and the Australian Capital Territory and the location of the third is not disclosed. On issues of damage the defendants can as readily qualify experts in Sydney as in Queensland and the plaintiff can also attend necessary medical examinations here. 12 The motion is dismissed with costs. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.