Supreme Court New South Wales Medium Neutral Citation: Scottie Allen Brydon v Australian Rail Track Corporation Limited [2015] NSWSC 722 Hearing dates: 26 May 2015 Date of orders: 11 June 2015 Decision date: 11 June 2015 Jurisdiction: Common Law Before: Hamill J Decision: 1. The notice of motion is dismissed. 2. The defendant is to pay the plaintiff's costs of and incidental to the motion. Catchwords: CIVIL LAW – personal injury claim – cross vesting – where collision occurred in South Australia – middle of nowhere – nearest major town in New South Wales – Broken Hill – where plaintiff sued in New South Wales – interests of justice – factors militating both ways Legislation Cited: Civil Liability Act 1936 (SA) Fatal Accidents Act 1976 (UK) Jurisdiction of Courts (Cross-Vesting) Act 1987 Limitation Act 1980 (UK) Railways (Operation and Access Act) 1997 (SA) Cases Cited: Amaca Pty Ltd v Mundy [2008] NSWSC 604 Bankinvest v Seabrook (1988) 14 NSWLR 711 BHP v Schultz [2004] HCA 61; 221 CLR 400 Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1564 O'Reilly v Western Sussex NHS Trust (No 6) [2014] NSWSC 1824 Pozniak v Smith [1982] HCA 39; 151 CLR 38 Category: Procedural and other rulings Parties: Scottie Allen Brydon (plaintiff) Australian Rail Track Corporation Limited (defendant) Representation: Counsel: Mr D Hooke SC with Mr J Masur (plaintiff) Mr J Mitchell (defendant) Solicitors: Boyd & Longhurst Wallmans Lawyers (defendant) File Number(s): 2014/00258901 Judgment 1. HIS HONOUR: Scottie Allen Brydon (the plaintiff) has commenced an action in negligence against the Australian Rail Track Corporation Ltd (the defendant). The action arises from a collision or accident that occurred on an access road near a railway line that runs by or over the Mingary Creek west of a place called Coburn. The scene is close to, but on the western side of, the New South Wales/South Australian border. According to the statement of claim, the plaintiff was riding his motorcycle when it collided with a concrete pylon. The plaintiff's case is that the pylon was part of the remnants of a former railway bridge over a creek. The plaintiff asserts that the remnants were left there by the defendant and that its action in leaving them there was negligent. The plaintiff sustained serious injuries as a result of the collision. 2. For a period, there was a dispute as to whether the statement of claim identified the location of the collision with sufficient precision. Justice Campbell made orders for preliminary discovery: Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1564. Further, at the commencement of the proceedings before me, the plaintiff obtained an order (by consent) that he be permitted to file an amended statement of claim wherein the land in question was more precisely defined. It seems that the defendant's concerns in relation to identifying the location of the collision have now been allayed. Based on the submissions made in the present application, there may be some dispute as to whether the collision took place on land occupied by the defendant. However, the defence is yet to be filed and the issues to be litigated are yet to crystallise. 3. The matter is before me on the defendant's notice of motion for an order that the matter be transferred to the Supreme Court of South Australia. The plaintiff resists this order. The defendant relies on an affidavit of Christopher Wellington filed 4 March 2015 and a number of documents exhibited to that affidavit. The plaintiff relies on an affidavit of Paul Longhurst filed 12 May 2015. 4. The parties do not agree on the appropriate venue for the trial. The defendant asserts that the most natural venue for the litigation is the Supreme Court of South Australia while the plaintiff maintains that the choice of venue in the originating process, that is the Supreme Court of New South Wales, is the appropriate venue. The matter falls to be determined by the application of s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987. The question that I must address is whether it appears to me that it is "otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court" of South Australia: s 5(2)(b)(iii). 5. It has been authoritatively determined that there is no onus on the party seeking to have the matter transferred. There may be, according to some of the cases and the joint submission of the parties, a "burden of persuasion" but the real issue is a question of judgment as what is in the "interests of justice". As Street CJ said in one of the first significant cases under the Cross-Vesting legislation "it calls for a 'nuts and bolts' management decision as to which court, in the interests of justice, is more appropriate to hear and determine the substantive dispute": Bankinvest v Seabrook (1988) 14 NSWLR 711 at 714. In BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 it was held that the "idea that the plaintiff's choice [of venue] is not lightly to be overridden … is out of place in a decision about s 5 of the Cross-Vesting Act". See also Pozniak v Smith [1982] HCA 39; 151 CLR 38 at 185 (Mason J). 6. In some cases everything points in one direction. For example, the applicable law is the law of a particular state, the plaintiff and defendant both reside in that State, the cause of action arose in that state and the witnesses reside in that state. In such a case there is "a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum": BHP v Schultz at 423 (Gleeson CJ, McHugh and Heydon JJ). This is not such a case. In this case both parties, each of whom is capably represented by experienced counsel, are able to point to matters militating in favour of their respective positions. 7. So it is that the defendant can point to a number of matters militating in favour of the transfer of the proceedings to South Australia because it is in the interests of justice to make such an order. Some of the factors upon which the defendant relies are: 1. The injury was occasioned in the state of South Australia. 2. The applicable law is the law of South Australia. 3. The location of the accident is much closer to the city of Adelaide than it is to the city of Sydney. It is said to be a 13 or 14 hour drive from Sydney but only a 5 hour drive from Adelaide. 4. The law to be applied includes the provisions of a number of statutes enacted by the Parliament of South Australia. It is said, and it is not disputed, that the Supreme Court of South Australia and the District Court of South Australia have considered a number of the relevant provisions of the Civil Liability Act 1936 (SA) on a number of occasions. 5. Section 15 of the Railways (Operation and Access Act) 1997 (SA) (the "Railways Act") has not previously been considered. The appropriate venue for the interpretation of the statute in those circumstances is the Supreme Court of the state where the legislation was enacted: see Amaca Pty Ltd v Mundy [2008] NSWSC 604 at [71] (Hall J). 6. The defendant's principal place of business or head office is in Adelaide. 7. A number of witnesses who may give evidence (and in particular three nominated people in positions of some authority within the corporate structure of the defendant) reside and work in Adelaide. 1. The plaintiff relies factors pointing in the other direction, including: – 1. At the time of the collision, the plaintiff was a resident of New South Wales. 2. The plaintiff is currently a resident of Cobar in the State of New South Wales. 3. The plaintiff has no family with whom to stay in Adelaide. (The defendant points out that there is no evidence that he has any family to stay with in Sydney either and I propose to ignore this factor). 4. The plaintiff agrees that a view of the scene is likely to be desirable. However, he contends that this is a factor militating in favour of holding the case in New South Wales because the Court can, and often does, sit in rural centres. It could sit for some or all of the trial in the court house at Broken Hill. Broken Hill is a relatively short distance by road from the site of the accident. As I understand it, Broken Hill is around a half to one hour by road from the collision site. 5. The plaintiff suffered substantial injuries and is paraplegic as a result of the collision. Travelling from Cobar to Adelaide would be onerous. Travelling to Sydney would be less onerous. Ideally, from the plaintiff's point of view, the Court could sit in Broken Hill which is a 4-5 hour drive from Cobar. 6. A number of local witnesses would be expected to give evidence. They are likely to remain residents of or near the town of Broken Hill and their evidence could be taken in Broken Hill if the Court was to sit there. 1. The plaintiff contends that these factors point to a conclusion that it is in interests of justice for the case to remain in this Court. The plaintiff also makes arguments against the matters put on behalf of the defendant. Senior Counsel conceded that the South Australian Supreme and District Courts have considered a number of the relevant provisions of the Civil Liability Act 1936 (SA) and also concedes that, at least in respect of the provisions relating to occupier's liability (ss 19-22 Civil Liability Act 1936 (SA)) there is no similar or identical provision under the equivalent New South Wales legislation. However, the plaintiff contends that none of the issues raised in the statement of claim, or likely to be raised in the defence, raises any serious question of statutory interpretation. Further, the New South Wales Supreme Court, whilst not bound by the decisions of the South Australian Court, would be highly persuaded by decisions of the South Australia Courts. The most forceful submission put in this regard is that the questions that arise under the particular provisions are not questions of statutory interpretation but merely questions of evidence and fact. 2. Further, this Court is often called upon to apply the law of other jurisdictions and is capable of doing so. According to the plaintiff, there is nothing unusual about that. He raised a particular example in the judgment of Garling J in O'Reilly v Western Sussex NHS Trust (No 6) [2014] NSWSC 1824. In that case, his Honour applied the law of the United Kingdom including the common law of negligence, the interpretation of the Fatal Accidents Act 1976 (UK) and the application of the Limitation Act 1980 (UK). 3. Insofar as the defendant relies on the fact that the relevant section of the Railways Act is yet to be interpreted and places reliance on statements of principle made by Hall J in Amaca Pty Limited v Mundy & Ors [2008] NSWSC 604 and BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400, the plaintiff submitted that the relevant section is not a complicated one requiring a nuanced consideration of statutory interpretation. In any event, the plaintiff submits that the real question is one of fact. 4. The plaintiff also contests the relevance of the fact that the defendant's principal place of business is in Adelaide. He tenders and relies upon a webpage of the defendant which shows it has offices throughout Australia including 3 offices in New South Wales. It conducts its business, and manages railways, within this jurisdiction as well as elsewhere throughout the Commonwealth with (as I understand it) the exception of Tasmania. 5. As can be seen from the foregoing analysis of the respective positions put to me by counsel for each side, this is not a clear-cut case. It involves a judgment as to where the interests of justice lie or, as Street CJ put it "a nuts and bolts management decision" as to which court, in the interests of justice, is the most appropriate for the conduct of the case. 6. The case law to which I have been taken is neither complicated nor controversial. I have already referred to some of it. The starting point is that there is no legal onus on the defendant to establish that the case should be transferred to South Australia. In Bankinvest v Seabrook Rogers AJA) said (at 727B): "The only loadstar that a judge may steer by is, what do the interests of justice dictate should be done? It is inapt to speak in terms of onus. Bearing in mind the court may make an order of its own motion the language of onus being discharged is inapplicable." 1. In the same case, his Honour (at 729D) observed that where an issue of negligence was to be determined by reference to relevant local standards (in that case, professional standards), that was "much better gauged by a local tribunal more closely aware of local practice". 2. I was also taken to the observations of Gleeson CJ, McHugh and Heydon JJ in BHP v Shultz concerning cases where the preponderance of connecting factors pointed clearly to one court or other being the appropriate or natural forum and to their Honour's rejection of the notion that the plaintiff's choice of forum should not lightly be overturned in the context of an application under s 5. Gummow J (at [100]) referred with approval to the observations of Gibbs CJ, Wilson and Brennan JJ in Pozniak v Smith [1982] HCA 39; 151 CLR 38 (at 183): "The only safe course, in a case where the relevant law in the competing jurisdictions is materially different in its effect on the rights of the parties, is to remit to the State whose law has given rise to the cause of action. As Brennan J observed in Robinson v Shirley, the power 'is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff's rights or correspondingly alter a defendant's obligations'." 1. My assessment is that the strongest factor in favour of the defendant's motion is the fact that the accident occurred in South Australia and the claim is to be determined under South Australian law. However, while there are differences between the legislative schemes operating in New South Wales and South Australia, there is no real suggestion that these differences are likely to give rise to significant disputes as to the interpretation of the relevant statutes. It seems that the case will largely turn on questions of act. Further, there is no contention that the different schemes favour one party over the other although the provisions relating to occupiers liability are different as between the states. 2. The section of the Railways Act which has not previously been considered by the courts of South Australia (S 15) is in the following terms: "15—Rail corridor need not be fenced Despite any other law, an operator is not required— (a) to fence a rail corridor or to replace, maintain or repair a fence in relation to a rail corridor; or (b) to contribute to or to join in the construction, replacement, maintenance or repair of a fence in relation to a rail corridor." 1. It is difficult to see how that provision is likely to cause any controversy in the context of the present case. The plaintiff makes no allegation that there was a duty to fence the rail corridor or that the defendant was negligent in failing to do so. 2. All those things having been said, the fact that South Australia is the lex loci delicti remains an important consideration in making a judgment as to the interest of justice in the present case. 3. I am less persuaded by the other matters relied on by the defendant. I have reached the conclusion that the balance of convenience in terms of the witnesses, attendance on a view and cost of the litigation favours the NSW Court especially given the proximity of the Broken Hill Court House to the scene of the incident and some of the lay witnesses that are likely to be called to give evidence at the trial. 4. One of the plaintiff's more compelling arguments concerns the residence of the plaintiff and his difficulty in travelling. There is no dispute, at least for the purposes of this application, that the plaintiff is a paraplegic. He lives in the town of Cobar. It is accepted that travelling to Adelaide would be a significant burden for him. If the Court undertakes a view (which both sides think is desirable) the plaintiff may also want to travel to Broken Hill. Broken Hill is a far closer to Cobar than either Sydney or Adelaide. If the trial is conducted in Adelaide, the plaintiff would need to travel by road to Dubbo and take two 'planes or drive to Sydney and fly to Adelaide. 5. Of all of the witnesses who may give evidence in the case, it seems that the plaintiff is the most important and likely to be in the witness box for the longest. 6. In addition to the plaintiff's disability and convenience, there are also likely to be a number of other witnesses who were present at the scene at the time of the collision or who ride motorbikes in that area. While there is no clear evidence, these witnesses are likely to be resident in or near Broken Hill. The police who attended the scene were from South Australia but came from a town closer to Broken Hill than Adelaide. Assuming the police remain local to the area (which is by no means certain), the most convenient venue for them would be Broken Hill. 7. The Defendant's witnesses who are resident in Adelaide would not be greatly inconvenienced if the trial is held in Sydney and, even less so, if the trial is held in Broken Hill. There are daily flights between Adelaide and Broken Hill with a flight time of around one and a half hours. There are also facilities by which their evidence could be taken remotely if they were unable to travel. 8. Having weighed these various considerations, and even giving significant weight to the fact that the case is to be decided under the law of South Australia, I have reached the the conclusion that the interests of justice favour the case remaining in the Supreme Court of New South Wales. 9. Accordingly I make the following orders: 1. The notice of motion is dismissed. 2. The defendant is to pay the plaintiff's costs of and incidental to the motion. ********** Amendments 11 June 2015 - Coverpage amended 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: 11 June 2015