Supreme Court New South Wales Medium Neutral Citation: Reid v Wright [2014] NSWSC 1110 Hearing dates: 14 August 2014 Decision date: 15 August 2014 Before: McCallum J Decision: Application to have proceedings transferred to the Supreme Court of Queensland refused Catchwords: PROCEDURE - cross-vesting - proceedings commenced in Supreme Court of New South Wales - application for transfer to Supreme Court of Queensland - interests of justice Legislation Cited: Civil Liability Act 2003 (Qld) Civil Liability Act 2002 Civil Procedure Act 2005 Family Law Act 1975 (Cth) Jurisdiction of Courts (Cross Vesting) Act 1987 Uniform Civil Procedure Rules 2005 Cases Cited: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 Dow Jones v Gutnick [2002] HCA 56; (2002) 210 CLR 575 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Reid v Wright [2014] NSWSC 795 Reid v Wright [2014] NSWSC 904 Reid v Wright [2014] NSWSC 929 Category: Procedural and other rulings Parties: Christine Reid (plaintiff) Diane Marie Wright t/as DM Wright & Associates Solicitors (defendant) Representation: Counsel: J Sheller (plaintiff) G Curtin SC (defendant) Solicitors: Greg Walsh & Co Solicitors (plaintiff) DLA Piper Australia (defendant) File Number(s): 2013/002346 Publication restriction: None Judgment 1HER HONOUR: Christine Reid claims damages for professional negligence against her former solicitor, Diane Wright. Ms Wright was retained by Ms Reid in connection with a family law matter following Ms Reid's separation from her husband. Ms Reid is a resident of the state of New South Wales. Ms Wright is a Queensland solicitor who carries on practice in the state of Queensland. 2The proceedings were commenced by statement of claim filed in this Court on 2 August 2013. By notice of motion filed 30 June 2014, Ms Wright seeks an order that the proceedings be transferred to the Supreme Court of Queensland. This judgment determines that application. 3The application is brought pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987, which provides: "(2) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or territory (in this subsection referred to as the first court ); and (b) it appears to the first court that: ... (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory; the first court shall transfer the relevant proceeding to that other Supreme Court. " 4The principles to be applied in determining an application under the cross-vesting legislation section were considered by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400. Mr Curtin SC, who appears for Ms Wright, summarised the principles established by that decision as follows: (a) the approach stated in the decision of the Court of Appeal in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 should be followed (at [22] per Gleeson CJ, McHugh and Heydon JJ; at [161] per Kirby J); (b) there is no judicial discretion involved. If a court determines that a transfer of the proceedings is in the interests of justice then it "shall" transfer the proceedings (at [14] per Gleeson CJ, McHugh and Heydon JJ; at [62] to [63] per Gummow J, with whom Hayne J agreed; at [222] per Callinan J); (c) no weight is to be given to the fact that the plaintiff has regularly invoked the jurisdiction of the court in which proceedings were commenced (at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J, with whom Hayne J agreed; at [258] per Callinan J); (d) there is a preference for a coincidence between the lex loci delicti and the court hearing the dispute because that "gives effect to the reasonable expectation of the parties" and to the policy manifested in the transfer provisions of the cross vesting Act (at [99] per Gummow J, with whom Hayne J agreed; at [163] to [166] per Kirby J; at [259] per Callinan J). 5Mr Sheller, who appears for Ms Reid, did not dispute that summary of the relevant principles. 6The circumstances in which the application is brought are, relevantly, as follows. It is common ground that Ms Wright was retained by Ms Reid between February 2008 and February 2011 to act for her in respect of a property settlement with her ex-husband. In summary, Ms Reid alleges that Ms Wright failed during that time to give advice as to the importance of instituting proceedings promptly and to take steps otherwise to protect her interests. Ms Reid alleges that the value of the marital estate was eroded during that period and, accordingly, that she lost the opportunity to obtain her proper share of a more valuable estate. 7It is common ground that the legal services to be provided pursuant to the retainer were in the area of family law, which is governed principally by Commonwealth legislation. Both Ms Reid and her ex-husband are residents of Sydney in New South Wales and all of their assets were located within this state. Ms Reid's decision to retain a Queensland solicitor in those circumstances was not explained in the evidence. 8Ms Wright's retainer was terminated in February 2011. Ms Reid then retained Mr Greg Walsh to act for her in respect of the family law matter. Mr Walsh is also the solicitor on the record in these proceedings. 9Following the determination of the retainer, a dispute arose as to the payment of Ms Wright's fees. Ms Wright alleges that Ms Reid initially agreed to pay her fees as assessed in a "short form assessment" but that, after the assessment had been completed, she reneged. That dispute is the subject of proceedings in the Magistrates Court of Queensland. There appears to have been an unsuccessful attempt to serve the originating process in those proceedings prior to the commencement of these proceedings. 10As already noted, these proceedings were commenced by statement of claim filed on 2 August 2013. On 7 November 2013, Ms Reid was served with the originating process in the Queensland proceedings. On 15 November 2013, Ms Wright was served with the statement of claim in these proceedings. She entered an appearance on 20 November 2013. 11Ms Wright obtained default judgment against Ms Reid in the costs proceedings in Queensland but that judgment was subsequently set aside (on 24 March 2014). 12Between 4 April and 19 June 2014 there was an exchange of correspondence between Ms Reid and Ms Wright in respect of Ms Reid's request that Ms Wright consent to the transfer of the Queensland proceedings to New South Wales. Those requests were not fruitful. On 30 June 2014 Ms Wright filed the present application and served it on Ms Reid. 13Ms Reid opposes the present application. Mr Sheller submitted that the application should be refused for three reasons. Delay 14First, it was submitted that there is unexplained delay in seeking the transfer. Mr Sheller submitted that, having regard to the terms of r 44.5 of the Uniform Civil Procedure Rules 2005, the delay is in itself a basis for refusing the application. That rule provides: "If a party to any proceedings in the Supreme Court intends to contend that: (a) the Court should exercise jurisdiction pursuant to any provision of a cross-vesting Act or of any other law of the Commonwealth or a State relating to cross vesting of jurisdiction, (b) that the Court should transfer the proceedings to another court pursuant to any such provision, the party must, on or as soon as practicable after commencement of the proceedings, apply to the Court for a determination of the question whether or not the proceedings should be transferred to another court." 15Mr Sheller submitted that the terms of the rule are mandatory. He further submitted that the correspondence between the parties reveals that Ms Wright had formed an intention to object to the jurisdiction of this Court as early as 12 November 2013 and, accordingly, that the application should be dismissed for non-compliance with the requirement to bring the application "as soon as practicable after commencement of the proceedings". 16Mr Curtin disputed both the analysis of the evidence and the construction of the rule contended for by Mr Sheller. As to the evidence, he submitted that, on a fair reading, Ms Wright's objection to "jurisdiction" in the correspondence should be read as an objection to the validity of the service of the statement of claim on her outside the state of New South Wales. The correspondence is at best equivocal and accordingly I accept Mr Curtin's submission on that issue. 17As to the proper construction of the rule, Mr Curtin placed reliance upon the words "if a party ... intends to contend". He submitted that the requirement to bring the application "as soon as practicable after commencement of the proceedings" does not arise in the absence of formation of any such intention. He submitted that the rule could operate unfairly if construed any differently, for example in a case where the circumstances warranting transfer to another state did not arise until some time after the commencement of the proceedings. That example illustrates the importance of applying the rules of court with the degree of flexibility required to ensure that the interests of justice are served. However, the case in the example is not the case here. There is no suggestion that any change in circumstance since the commencement of these proceedings precipitated Ms Wright's application. 18In my view, the rule plainly contemplates that parties should ordinarily turn their minds to the issue of cross-vesting as soon as practicable after the commencement of the proceedings. That is not to say that the failure to do so will inevitably be fatal to the success of a cross-vesting application, but only to say that I would not construe the rule in the literal way contended for by Mr Curtin. The prefatory words of the rule must be read in the context of the further words "as soon as practicable after commencement of the proceedings" and the provisions of Part 6 of the Civil Procedure Act 2005. 19I would accept, however, that the delay is not determinative in the present case, as Mr Sheller contends. The delay is of some relevance in that the plaintiff has now retained an expert witness in Sydney and has continued to instruct a Sydney solicitor, who must have acquired a degree of experience and familiarity with the matter. The pleadings have now closed and this Court has determined two interlocutory applications: Reid v Wright [2014] NSWSC 795 (defendant's application for particulars); Reid v Wright [2014] NSWSC 904 (plaintiff's application for transcription of defendant's notes) and Reid v Wright [2014] NSWSC 929 (costs). The stage the proceedings have reached is relevant to a consideration of the inconvenience, at this stage, of transferring the proceedings to a different state. I regard that to be a relevant consideration in the interests of justice. Natural forum 20The second reason relied upon by Ms Reid for opposing the application is that, contrary to the submissions put on behalf of Ms Wright, the Supreme Court of Queensland is not the natural forum. That is a difficult issue in the present case. As a matter of strict legal analysis, it may be correct to say that any tort occurred in Queensland as opposed to New South Wales. As it was put by Mr Curtin, Queensland is "where the defendant's state of mind did not decide to do the things the plaintiff says she should have done". In that context, Mr Curtin relied upon the following statement in the decision of the High Court in Dow Jones v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [43]: "In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt". 21It must be observed, however, that those remarks were made in the context of a discussion of the difficulty that can be experienced in locating the place of commission of a tort. 22Whilst I accept that Mr Curtin's analysis is probably a correct analysis according to the authorities relied upon by him, I do not think it is a strong consideration in the present case. The plaintiff's principal allegation is that the defendant ought to have advised her of the importance of instituting proceedings promptly. While such proceedings could have been commenced in any registry of the Family Law Court, the obvious choice would have been the registry in Sydney, since that is where the parties and the relevant assets were. 23Further, the standard of care that applied to the defendant is to be determined according to the common law of Australia as modified by any relevant statute. Mr Curtin acknowledged that, on the face of its wording, there is no relevant difference between s 22 of the Civil Liability Act 2003 (Qld) and s 5O of the Civil Liability Act 2002 (NSW). It may be noted that the defence filed by the defendant on 9 April 2014 presently asserts that her retainer "was performed in a manner that (at the time the services were provided) was widely accepted in Australia by peer professional opinion as competent professional practice", citing s 5O of the New South Wales Act. The defendant asserted that the reference to the New South Wales legislation was erroneous and will be amended but, as already noted, it is acknowledged that there is no practical difference between the two. 24Mr Curtin submitted that it is important for there to be a coincidence between the Court hearing the claim and the lex loci delicti for two reasons. First, he relied upon the statement of Rogers AJA, with whom Street CJ agreed, in Bankinvest at 729D as follows: "Although neglected in argument, it should not be forgotten that an important aspect of the cross claim is the claim of negligence against the Queensland solicitors. Once again, it seems to me, that a determination whether or not a professional person has been negligent is much better gauged by a local tribunal more closely aware of local practice and the demands imposed on practitioners." 25I do not think that is a strong consideration in the present case, for the reasons adverted to above. The legal services Ms Wright was retained to provide were principally governed by federal law. The professional standards applied in the practice of such law should not differ in any substantive way between states. The experience of a local tribunal is of little if any significance in that context. Further, the obvious choice of registry for the commencement of any proceedings in the family law matter was Sydney. 26The second reason for which it was contended that coincidence between the Court and the lex loci delicti is important is the advantage that arises from having no dispute about whether statutory provisions are substantive or procedural. In that context, Mr Curtin cited the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. However, it was not suggested that that principle has any specific application in the present case. It seems unlikely that it will, having regard to the issues in the proceedings. 27Separately, Mr Curtin relied upon the fact that the costs agreement between the parties is governed by the law of Queensland in accordance with a choice of law clause in the agreement (page 42 of the affidavit of Robert Crittenden sworn 30 June 2014). However, as submitted by Mr Sheller, the determination of the costs dispute is unlikely to be informed by any Queensland statute, since it is Ms Wright's contention that Ms Reid agreed to be bound by the short form assessment. The principal issue raised in the costs proceedings is whether she is bound by that agreement. 28Mr Sheller submitted that the difficult issue of where the cause of action arose in the present case does not need to be definitively determined by me in order to determine the present application. He relied upon the remarks of Street CJ in Bankinvest at 714D where his Honour said that a cross-vesting application calls for a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. For the reasons I have identified, I do not think this is a case in which the place of the tort is significant. It is less significant, in my assessment, than the place where (assuming negligence for present purposes) family law proceedings should have been commenced, which is Sydney. Queensland proceedings 29The third factor relied upon by Mr Sheller is the contention that the "logical course" is for the Queensland proceedings to be transferred to this Court. I regard that as being, in effect, a neutral factor. The parties are agreed that the two proceedings should be joined. All other things being equal, I do not think either pulls the other more strongly to one jurisdiction or the other. Other considerations 30The position regarding witnesses and other relevant parties is probably a neutral factor in the present case. If anything, it favours the plaintiff. She lives in New South Wales. She proposes to call her son and her solicitor as witnesses and each of them is in New South Wales. Mr Curtin doubted the likely admissibility of the evidence of either the son or the solicitor but I do not think I can properly discount the solicitor's evidence on that issue. The defendant lives in Queensland, as does an employed solicitor who may be required by her to give evidence. The plaintiff has retained an expert witness in New South Wales. The defendant has not retained an expert. Each party has retained solicitors who are in New South Wales. Conclusion 31In my view, the interests of justice in the present case point to this Court as the more appropriate court to determine the proceedings. To the extent that there is a natural forum, it is this court, in my view. Further, the combination of the delay and the steps that have been taken during the period of delay point slightly in favour of this Court, for practical reasons. 32For those reasons, the application is refused. 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. Decision last updated: 18 August 2014