Supreme Court New South Wales Medium Neutral Citation: Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 Hearing dates: 17 March 2017 Decision date: 31 March 2017 Jurisdiction: Common Law Before: Button J Decision: (1) The notice of motion of the first defendant of 10 January 2017 is dismissed. (2) The first defendant must pay the costs of the plaintiff of the proceedings before me. (3) The matter is granted expedition. (4) The matter is listed before the Common Law Registrar at 9AM on 11 April 2017. Catchwords: CIVIL – PROCEDURE – transfer of proceedings – application to transfer proceedings to Supreme Court of Western Australia – whether transfer in interests of justice – notice of motion dismissed Legislation Cited: Civil Liability Act 2002 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5(2)(b)(iii) Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) Workers Compensation Act 1987 (NSW), s 151Z Cases Cited: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 Category: Procedural and other rulings Parties: Matthew Hughes (Plaintiff) Whittens Group Pty Ltd (First Defendant) BGC Contracting Pty Ltd (Second Defendant) Representation: Counsel: D Campbell SC with R Di Michiel (Plaintiff) D Toomey SC (First Defendant) B Stiff (Second Defendant) Solicitors: Stacks Goudkamp (Plaintiff) Rankin Ellison Lawyers (First Defendant) Colin, Biggers & Paisley (Second Defendant) File Number(s): 2016/269848 Publication restriction: Nil Judgment Introduction 1. This application for transfer of proceedings to the Supreme Court of Western Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the Act) came before me in the Duty List. With the assistance of two members of the inner Bar, the issues became very refined. In particular, it was agreed that the question for me to determine is whether the transfer sought by the first defendant (to which I shall refer for convenience, unless greater discrimination is required, as the defendant) is in the interests of justice. Background 1. The background may be shortly stated. The plaintiff was a fly-in, fly-out worker at a mine at Port Hedland in the north-west of Western Australia. On 8 December 2014, it is alleged that he fell heavily, thereby suffering injuries to his back. The case for the plaintiff – as demonstrated by a statement of claim filed in this Court on 8 September 2016 – is that a sloping part of the mine had been cut too deeply, and that that played a role in the plaintiff's fall. The case for the plaintiff is that there have not only been physical injuries, but also important psychiatric consequences. 2. The first defendant is the labour hire company that made the plaintiff available to work at the mine. The second defendant is the chief contractor for whom the plaintiff was actually working at the mine on the day of the fall. 3. By way of a notice of motion of 10 January 2017, the defendant has moved that the proceedings should be transferred to Western Australia. In support of that proposition, senior counsel for the defendant made the following submissions. Submissions of counsel for the first defendant 1. First, it is not disputed between the parties that the law to be applied to the dispute must be the law of Western Australia. It was said that, other things being equal, that should be determined by a judge of Western Australia, and not a judge of this Court, on the simple basis that the former will have had many years experience of the laws of his or her own jurisdiction. 2. Furthermore, it would not simply be a matter of a judge of this Court applying the Western Australian variant of our Civil Liability Act 2002 (NSW). There could also be complicated questions to do with Western Australian litigation about mines and mining; difficult questions to do with the analogue of our s 151Z of the Workers Compensation Act 1987 (NSW); and questions of contribution between alleged tortfeasors, pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA). 3. Secondly, he accepted that technological advances over the past 30 years have meant that questions of the places of residence of parties and convenience of witnesses have become less important on such an application. In particular, he accepted that much can be done by way of audio-visual link (AVL). Having said that, he submitted that one could infer that many witnesses of the first defendant might be based in Western Australia (I interpolate to say that no such submission was made by the solicitor for the first defendant, who courteously remained during the hearing of the motion, but neither consented to it nor opposed it). He also submitted that the evidence available at this early stage suggests that more of the workers who may well be witnesses as to liability are connected to Western Australia than New South Wales. 4. Thirdly, he accepted that the plaintiff is entitled to be present at the proceedings at which he is a party, and one would expect him to wish to be present if the proceedings were transferred to Western Australia. That concession was made even though senior counsel made it clear that his client would consent to the plaintiff giving evidence by AVL. But the point was made that the plaintiff is based in the Hunter region, and due to his asserted back injury one would hardly expect him to commute between that region and Queen's Square. In other words, the point was made that, in all likelihood, the expense and disruption of the plaintiff needing to be accommodated away from home will arise whether or not the proceedings take place in Perth or Sydney. 5. Fourthly, it was accepted that the evidence is that the psychological state of the plaintiff is fragile. In particular, it was not disputed that there is documentary evidence that: the injury has meant that the plaintiff cannot work; his mood has declined precipitously as a result; he is poverty stricken, and recently had to sell his caravan simply in order to pay daily expenses; he recently considered suicide, but only desisted when fortuitously reminded of his daughter; he was scheduled as an involuntary psychiatric patient on 12 January 2017 (albeit, it seems, for only 24 hours); thereafter, he remained as a voluntary patient within a mental hospital for a period of about a week; and, finally, he is currently seeing a psychologist in the community. 6. Still and all, he submitted, wherever the trial takes place, it will be disruptive physically and psychologically for the plaintiff, and the difference between the disruption of the trial being in Western Australia as opposed to New South Wales should not be over-emphasised. 7. Finally, senior counsel for the defendant submitted that it is not a question of any formal or informal onus being cast upon his client; it is merely a matter of me determining where the interests of justice lie. Submissions of counsel for the plaintiff 1. Senior counsel for the plaintiff, in resistance to the motion, made the following submissions. 2. First, he accepted that, if the matter remains before this Court, a judge of this Court would be called upon to construe Western Australian legislation. But he submitted that that is hardly an alien jurisdiction; no doubt there are variations between the various pieces of legislation of that State to which senior counsel of the defendant referred and their analogues here, but the differences will not be significant ones. Furthermore, the task of construing statutes and understanding judgments elucidating those statutes is hardly a task with which judges of this Court are unfamiliar. 3. Secondly, I understood him to accept generally that technology has done much to reduce the relevance of the question of convenience of parties and witnesses. Nevertheless, he submitted, there would be a big difference between a physically and psychologically fragile man having to travel between the Hunter region and Sydney, and the Hunter region and Perth. Furthermore, one could readily imagine that this trial could and should be heard in the Supreme Court of New South Wales sitting at Newcastle, thereby destroying the equivalence in logistical disruption for which senior counsel for the defendant contended. 4. Thirdly, senior counsel for the plaintiff emphasised the various medical reports placed before me on his behalf to the effect that a transfer to Western Australia could seriously damage the emotional state of the plaintiff, with the result that it is no exaggeration to say that his life could be endangered. 5. Fourthly, he emphasised that his client is penniless, the proceedings have been commenced in New South Wales on a speculative basis, and there is a real question whether proceedings could continue if they were transferred to Western Australia. 6. Finally, he submitted that, in a very general sense, there is a burden of persuasion on senior counsel for the defendant in seeking to have me alter the pre-existing state of affairs of proceedings having commenced in this Court. Determination 1. Turning to my determination, in accordance with what was said by Gummow J in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [71], I approach the matter on the basis that there is no onus (including a de facto onus) on either party; rather, I am called upon simply to make an evaluative judgment of where the interests of justice lie. 2. Secondly, despite the fact that each party made submissions about the advantages and disadvantages of subsequent procedural steps that could possibly occur if the matter were transferred to Western Australia, as I remarked at the hearing, it is simply impossible for me to come to a firm view about disputed matters of that kind. Accordingly, those submissions play no role in my determination. 3. Thirdly, each party sought to rely upon events that may possibly occur that could be disadvantageous to the second defendant. But that party – who was represented before me – was content to adopt a neutral position with regard to the motion. In those circumstances, I put those submissions to one side as well. 4. Fourthly, in light of modern technology, questions of location of witnesses have much less force than they used to, even 20 years ago. By that I mean that I expect that the vast majority of witnesses who need to give oral evidence in the trial will be able to do so by AVL. My own experience is that only witnesses whose credit is truly to be impugned cannot give evidence in that way. Here, I expect that many witnesses will not need to be called at all; of those that do need to be called, the vast majority of them will not need to travel to Court. In short, questions of the location of witnesses, and their convenience, play very little role in my determination. 5. Fifthly, in the same vein, the first defendant is a corporation that can almost as readily be represented in Western Australia as in New South Wales. Again, its convenience plays little role in my determination. 6. Sixthly, in my opinion the submission of senior counsel for the defendant that questions of the law of Western Australia should be determined in a court of Western Australia has a great deal of force. Speaking generally, it is surely preferable for a judge with intimate knowledge (both as lawyer and judicial officer) of his or her legal system to make decisions about that system. Were that the only important factor, I would have little difficulty in transferring the matter to Western Australia. 7. Here, however, there are compelling countervailing factors. 8. Seventhly, as I have said, the plaintiff is impecunious. I accept that his presence in Western Australia, and running the matter there, may well be logistically impossible. 9. Eighthly, I accept that the plaintiff will need to be in Western Australia for at least some of the time of the hearing, despite the concession made on behalf of the defendant that it would be content to cross-examine him by AVL. 10. That leads one to consider the physical and mental conditions of the plaintiff, and the effect that a transfer would have on them. 11. Ninthly, and contrary to the submission of the defendant, I consider that travel to Perth would be far more physically taxing than travel from the Hunter region to Sydney. 12. Tenthly, such travel would also be far more taxing mentally and emotionally. The uncontroverted evidence is that the plaintiff recently came close to killing himself; that he was recently detained involuntarily in a mental hospital; and that thereafter he was a voluntary patient for a week or so. I accept the expert opinion evidence from more than one source that his mental health remains very fragile. 13. It is true that that factor can hardly be allowed to hold the court to ransom. Furthermore, as I remarked to his counsel, the mere fact that the trial remains in New South Wales can hardly guarantee the mental health or ultimate safety of the plaintiff. 14. Nevertheless, in the circumstances of this case, demonstrated by uncontroverted expert evidence, I consider that the fragility of the mental health of the plaintiff, and the possibility of its endangerment by the matter being moved away from New South Wales, constitute compelling reasons why, in the interests of justice, the proceedings should remain in New South Wales. Unusually, to my mind, that factor overcomes the inherent disadvantage of a judge of this Court needing to analyse and determine the laws of another State of Australia. 15. In all of the circumstances, I am affirmatively satisfied, in accordance with s 5(2)(b)(iii) of the Act, that it is in the interests of justice for the matter to remain in New South Wales. It follows that I shall dismiss the notice of motion of the first defendant. Expedition 1. Both the plaintiff and the first defendant were agreed that this matter should be granted expedition; the second defendant neither consented to nor opposed that course. At my request, the two members of the inner Bar representing the two agreeing parties acted as de facto contradictors, in that I asked them to identify countervailing factors. They identified none. In the circumstances of this case, I accept the joint position of the parties. In doing so, I rely upon most experienced counsel to ensure that my order is not rendered nugatory by delays in preparation of the matter for trial. Costs 1. The first defendant lost a hard fought motion to which the plaintiff was the respondent. In those circumstances, the first defendant should pay the costs of the plaintiff (a written submission of the plaintiff that any such costs should be paid forthwith was withdrawn at the hearing before me). 2. The second defendant raised the question of costs on behalf of her client from the first defendant. But the second defendant neither consented to nor opposed the motion, and its lawyer remained in Court only to provide me with assistance with regard to the separate question (raised by the plaintiff) of expedition. In those circumstances, there is no basis upon which the first defendant should be ordered to pay the costs of the second defendant with regard to the unsuccessful motion of the first defendant. Orders 1. I make the following orders: 1. The notice of motion of the first defendant of 10 January 2017 is dismissed. 2. The first defendant must pay the costs of the plaintiff of the proceedings before me. 3. The matter is granted expedition. 4. The matter is listed before the Common Law Registrar at 9AM on 11 April 2017. ********** Amendments 31 March 2017 - Amendment to counsel on coversheet. 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: 31 March 2017