Supreme Court New South Wales Medium Neutral Citation: Moley v Younger [2016] NSWSC 1280 Hearing dates: 12 September 2016 Decision date: 13 September 2016 Jurisdiction: Common Law Before: Button J Decision: (1) Proceedings No 2015/354084 in the District Court of New South Wales at Lismore are transferred to the Supreme Court of New South Wales. (2) Following order 1, proceedings No 2015/354084 in the District Court of New South Wales are transferred to the Supreme Court of Queensland. (3) The defendant to the summons filed 27 July 2016, Mr Lee Younger, must pay the costs of the plaintiffs, Mr Gerard Moley and Ms Orla Fox, of that summons. Catchwords: CIVIL – PROCEDURE – transfer of proceedings – application for transfer of proceedings from District Court of New South Wales to the Supreme Court of Queensland – claim for damages arising from negligence – whether transfer in the interests of justice Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), s 140 Evidence Act 1995 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5(2)(b)(iii) Personal Injuries Proceedings Act 2002 (Qld) Cases Cited: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 RACQ Insurance Ltd v Roebuck [2013] NSWSC 2056 Reid (by his tutor Foster) v Wright [2012] NSWSC 1149 Category: Principal judgment Parties: Gerard Martin Moley (First Plaintiff) Orla Mary Fox (Second Plaintiff) Lee Nathan Younger (Defendant) Representation: Solicitors: William Roberts Lawyers (Plaintiffs) Bourke Love (Defendant) File Number(s): 2016/226445 Judgment Introduction 1. This is an application for the transfer of proceedings commenced in the District Court of New South Wales to this Court, pursuant to s 140 of the Civil Procedure Act 2005 (NSW), and thereafter to the Supreme Court of Queensland, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (after that, it is envisaged that the proceedings would be transferred to the District Court of that State). It came before me in the Duty List yesterday morning, and in order to permit the matter to proceed expeditiously, I have regarded it as important that I deliver my judgment today. Background 1. The summons seeking transfer was filed on 27 July 2016 by the defendants, Mr Gerard Moley and Ms Orla Fox, with regard to a claim brought against them by the plaintiff, Mr Lee Younger. For ease of comprehension of the reader, I shall refer to the parties by way of their roles in the substantive dispute, rather than their roles in this application. 2. The background of the matter may be shortly stated. By way of a statement of claim filed at the Registry of the District Court at Lismore on 2 December 2015, the plaintiff claims that he was visiting friends at their home in Woolloongabba, an inner suburb of Brisbane. The friends were leasing those residential premises from the two defendants. The assertion of the plaintiff is that he lent on a railing, it collapsed, and he suffered serious injuries as a result. His claim is that the railing was improperly maintained by the defendants as lessors, and they are liable to him in negligence. 3. Certain pre-filing steps pursuant to the procedural law of Queensland were undertaken. Before me, the plaintiff submitted that they had been delayed as a result of the dilatoriness of the defendants; in contrast, their position was that any delay that occurred in Queensland should be very largely laid at the feet of the plaintiff. Eventually, as I have said, the plaintiff commenced proceedings in New South Wales at the end of last year. 4. The parties were agreed that, despite the somewhat convoluted (in my respectful opinion) drafting of the pertinent section, the question comes down to what is in the interests of justice. I was helpfully referred to what was said by the High Court in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14]-[16], namely: [14] In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. [15] The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff's lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff's lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff's early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases. [16] On the other hand, there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party. Submissions of the defendants 1. The solicitor for the defendants submitted that a number of factors argue in favour of the proceedings being transferred. 2. First, the alleged tort occurred in Queensland, and prima facie it should be determined there. 3. Secondly, the substantive law that applies is the law of Queensland. Other things being equal, it is preferable that the Court applying the law of a State or Territory be a court of that State or Territory: see Reid (by his tutor Foster) v Wright [2012] NSWSC 1149 at [19]; BHP Billiton Ltd v Schultz at [248] (Callinan J). 4. Thirdly, the defendants are connected with Queensland, not New South Wales. Indeed, he submitted that the only real connection with New South Wales that the matter possesses is that the solicitors of the plaintiff have their office in Lismore. 5. Fourthly, it was accepted that, whether any hearing of the matter occurs in Brisbane or Lismore, the question of the convenience of witnesses is of no great moment to the resolution of the question. That is because it was accepted that expert witnesses could, in all likelihood, give evidence by way of audio-visual link; in any event, the distance between the two cities is no more than three hours by car. 6. In answer to a submission made by counsel for the plaintiff that a "return" of the matter to Queensland could lead to the matter being delayed, stayed, or possibly struck out, the solicitor for the defendants gave a written undertaking that, at least, the latter point would not be taken by his clients. 7. In short, it was said that, looking at the matter as a whole, the interests of justice call for the matter to be transferred. Submissions of the plaintiff 1. In response, counsel for the plaintiff accepted that Queensland has its own statutory alteration of the common law of negligence, in the form of the Personal Injuries Proceedings Act 2002 (Qld). But he submitted that that statute is very similar to the Civil Liability Act 2002 (NSW); indeed, with regard to its central provisions, he submitted that it is identical. And he submitted that a District Court Judge sitting in Lismore would have little difficulty applying the civil law of Queensland: in fact, he submitted, that commonly happens. 2. Secondly, whatever be the complications of the pre-filing and pre-trial procedural regime of Queensland, that would not trouble such a judge, because it would be the substantive law of Queensland that would need to be applied in New South Wales, not its procedural framework. 3. Thirdly, he submitted that there is a further connection with New South Wales unremarked upon by the defendants in that, although the plaintiff is currently in Germany, after the incident he stayed in northern New South Wales for a period, and was treated there by at least one medical professional. 4. Fourthly, he maintained the position that delays already encountered were the fault of the defendants. And he submitted that, if his client were forced back to Queensland (as it were), those delays would surely continue. 5. Fifthly, he invited me to the decision of Davies J in RACQ Insurance Ltd v Roebuck [2013] NSWSC 2056, and noted that, in broadly similar circumstances, his Honour had declined to order an interstate transfer. 6. Sixthly and finally, he submitted that the evidence placed before me is that the matter will receive an earlier hearing date if it remains in the list of the District Court of New South Wales at Lismore, rather than the District Court of Queensland at Brisbane. 7. For all of those reasons, he submitted that the matter should not be transferred. Determination 1. Turning to my determination, it is impossible, on the material placed before me in the midst of a busy Duty List, for me to determine the rights and wrongs of any delays encountered in the matter so far. As well as that, I am not familiar with the intricacies of pre-filing and pre-trial procedure in Queensland. 2. I simply proceed on the basis that I accept that there have been some delays in this matter, without being able to determine whether either or both parties are at fault. 3. Separately, to my mind, it is important that the alleged tort occurred in Queensland. Speaking very generally, I accept that the common sense "default position" should be that an alleged wrong is resolved where it is said to have occurred. 4. There are practical considerations as well. For example, if a view needed to be taken of the premises in question, it could more conveniently be done from Brisbane than Lismore. As well as that, if structural experts are to be retained, they can more conveniently inspect the premises if they are based in Brisbane, and experts based in that city will be familiar with the rules of evidence in that State, as opposed to the Evidence Act 1995 (NSW). 5. Secondly, whilst not cavilling with the general proposition that the various amendments to the common law of negligence made throughout Australia a decade or so ago are broadly similar, I do not accept that there are no shades of differentiation between those many statutes. Experience has shown me that analysis and application of the law of New South Wales with regard to negligence is not without its complications; I think that an important factor arguing in favour of the motion is that a Queensland judge should apply a Queensland statute elucidated by Queensland authorities in a Queensland courtroom. 6. Thirdly, again it is impossible for me to make any firm determination as to whether or not this matter would be more quickly resolved in New South Wales than in Queensland, although it does seem that the procedural regime leading up to resolution of such a claim in that State is perhaps more involved than it is in New South Wales. But to my mind the matter, in any event, is quite some distance for being ready to be listed for hearing in either jurisdiction, and the proposition that it could be dealt with before the end of this year, whether in Brisbane or Lismore, is, I respectfully consider, unrealistic. 7. Fourthly, I consider that the location of civilian witnesses, and treating medical practitioners, is of little moment, bearing in mind the closeness of the two cities and the availability of technological alternatives to evidence being given in person. 8. Fifthly, it was helpful to be provided with a copy of the judgment of Davies J in RACQ Insurance Ltd v Roebuck. As I have said, in that case, his Honour decided that the proceedings should not be transferred, in broadly similar circumstances. As I remarked to each lawyer during the hearing before me, however, the resolution of these applications calls for evaluative judgments that very much turn on their own facts. 9. Sixthly, I regard the written undertaking provided by the solicitor for the defendants as being a significant factor in my satisfaction that the plaintiff will suffer no substantive disadvantage from the matter being transferred. As well as that, a copy of this judgment will of course be available to each party, so that any judicial officer in Queensland can readily be taken to my quiet confidence that this matter will now be advanced expeditiously by both parties. 10. In short, I consider that a combination of factors means that the interests of justice call for this matter being transferred to Queensland, and I propose to make orders to that effect. Costs 1. As for costs, neither party made written or oral submissions about them. I infer that each party was content for me to adopt the usual approach of costs following the event. Orders 1. I make the following orders: 1. Proceedings No 2015/354084 in the District Court of New South Wales at Lismore are transferred to the Supreme Court of New South Wales. 2. Following order 1, proceedings No 2015/354084 in the District Court of New South Wales are transferred to the Supreme Court of Queensland. 3. The defendant to the summons filed 27 July 2016, Mr Lee Younger, must pay the costs of the plaintiffs, Mr Gerard Moley and Ms Orla Fox, of that summons. ********** 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: 13 September 2016