P1 v D1 [2012] NSWSC 164

Supreme Court New South Wales

Medium Neutral Citation: P1 v D1 [2012] NSWSC 164 Hearing dates: 2 March 2012 Decision date: 05 March 2012 Jurisdiction: Common Law Before: Harrison J Decision: Application for change of venue dismissed Catchwords: Procedure - application for change of venue - convenience of parties - application dismissed Category: Interlocutory applications Parties: P1 & Ors (Plaintiffs) D1 & Ors (Defendants) Representation: R Bartley SC with J Sharpe (Plaintiffs) Porters Lawyers (Plaintiffs) Colin Biggers and Paisley (First and Fourth to Fourteenth Defendants) File Number(s): 2009/297873 Publication restriction: Parties only to be identified by pseudonyms

Judgment 1HIS HONOUR: By an amended notice of motion dated 1 March 2012 the plaintiffs seek a suite of orders including an order that the lay evidence in the proceedings be taken in Grafton. Senior counsel for the plaintiffs sought to augment that order to include the taking of evidence from three medical practitioners to be called in the plaintiffs' cases. The hearing of all matters is scheduled to commence on 16 July 2012 with an estimate of five weeks. The application to change the venue to Grafton is opposed by the defendants. I am informed by the parties that their inquiries have revealed that the Grafton courthouse is available for their use for three weeks commencing 16 July 2012 in the event that I were prepared to make the order sought. 2The proceedings relate to allegations of sexual assault upon the plaintiffs by one of the defendants who was at the time the principal of St Andrews Christian School located a short distance from Grafton. The principal was charged in relation to some of these assaults and he is now serving a term of imprisonment. He is not due for release on parole until August 2015. 3The plaintiffs contend that some 18 lay witnesses will be called on their behalf. That number presumably includes each of the plaintiffs. The plaintiffs tendered no evidence to support the application, preferring instead to rely upon submissions to the effect that it would be more convenient for the plaintiffs in particular and the plaintiffs' witnesses in general if they were not required to travel to Sydney. 4The defendants relied upon an affidavit of Roland Everingham sworn 1 March 2012, which was read without objection. Mr Everingham is the solicitor with the day-to-day carriage of the matter on behalf of all defendants except the former school principal. He was not cross-examined. 5The burden of the defendants' evidence and submissions is first, that the extra costs involved in transferring the hearing to Grafton are out of proportion to any benefit that might otherwise flow from the transfer. These costs include airfares, accommodation costs, as well as the not inconsiderable costs associated with the transport to and from Grafton of some 130 lever arch folders of documents that make up the documentary material so far accumulated by the defendants. Mr Everingham suggests, not unreasonably, that at least some of this material will need to be returned to Sydney each weekend by courier to facilitate counsel's preparation and research. The cost of a hearing lasting three weeks in Grafton are estimated by Mr Everingham to be somewhere between $55,000 and $70,000 more expensive than an equivalent hearing in Sydney. Those figures are calculated by reference to the three weeks of court time that is available in Grafton from the date when the cases are due to start. Any extension of the hearing in Grafton would produce a corresponding cost increase. 6Secondly, Mr Everingham's affidavit sets out in detail a series of logistical difficulties associated with the conduct of this litigation in Grafton. The interview rooms are small and inadequate. There will be competition for their use from lawyers and litigants in the Local Court, which is scheduled to sit simultaneously. Storage facilities for documents are also inadequate. The Grafton Court does not have Internet or photocopying facilities for use by persons other than Court staff. A portable photocopier will therefore have to be arranged by the parties. No accommodation facility in Grafton would appear to have adequate workspaces or storage facilities in close proximity to the courthouse. 7On 24 February 2012 her Honour Fullerton J provided her reasons for judgment in a contested application in these matters concerning non-publication and pseudonym orders to protect the identity of the plaintiffs. Those reasons have been circulated to the parties although they are not yet published on the Court's Caselaw website. One of the central propositions advanced by the plaintiffs in that application was the need to protect the identity of the plaintiffs having regard to the nature of the allegations, their actual or potentially vulnerable psychological and psychiatric conditions and the adverse effects upon them that were expected to follow if their identities were made known to the public at large. It appears to be common ground, and I am otherwise satisfied from material before me that it is so, that the plaintiffs' cases are at least in general terms the subject of intense interest in the local Grafton community, in large part generated by the publicity that attended the trial, conviction and imprisonment of the third defendant. 8I indicated to the parties during the hearing of this application that there seemed to me to be a not inconsiderable tension between the plaintiffs' concerns to maintain their anonymity and to reduce their exposure to public identification on the one hand and a desire to have the hearing of their cases removed to a venue where they are, or are very likely to be, well known in the local Grafton community, easily identifiable for that reason and surrounded by their friends and neighbours who are likely to be interested in the circumstances giving rise to the proceedings on the other hand. It seems to me to be inimical to the plaintiffs' privacy and anonymity, which they have fought so hard to protect and maintain, to remit the hearing of these cases to the very place in which their identity is likely to be most difficult to disguise. Senior counsel for the plaintiffs provided me with no satisfactory response concerning that issue when I raised it with him. 9The evidence of increased costs and inadequate facilities is all one way. As I have said, Mr Everingham was not cross-examined and the plaintiffs did not otherwise suggest that his concerns were either ill-founded or overstated. 10Having regard to the overriding purpose and the dictates of justice I consider that these proceedings should not be heard in Grafton but should proceed as originally anticipated in Sydney. In the circumstances I make the following orders and directions: 1. Confirm the hearing of all matters to commence in Sydney on 16 July 2012 with an estimate of five weeks. 2. Note that, subject to any other order or direction that the trial judge may make, all matters are to be heard together to the intent that the evidence in any one case will be evidence in all others. 3. Direct that the evidence of P4 is to be given by video link from Grafton on such day as is suitable to the Court and to the parties, to be arranged by the solicitor for P4. 4. Grant liberty to apply on seven days' notice.