Supreme Court New South Wales Medium Neutral Citation: Pilbara Ports Authority v Ashton [2019] NSWSC 1488 Hearing dates: 11 September 2019 Date of orders: 30 October 2019 Decision date: 30 October 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The Amended Summons is dismissed. (2) The plaintiff is to pay the defendant's costs. Catchwords: CIVIL PROCEDURE – Cross-vesting – whether proceedings should be transferred from NSW District Court to NSW Supreme Court to then be transferred to WA Supreme Court – Court not persuaded it is in the interests of justice to transfer the proceedings to WA – amended summons dismissed Legislation Cited: Civil Liability Act 2002 (WA) Evidence Act 1906 (WA), s 121 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5, 8 Occupational Safety and Health Act 1984 (WA) Cases Cited: Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab [2016] NSWSC 1749 BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 Michael Anthony Luxury Cars Pty Ltd v Connexwire Ltd [2019] NSWSC 1084 Category: Principal judgment Parties: Pilbara Ports Authority (Plaintiff) Benjamin Ashton (Defendant) Representation: Counsel: H Chiu (Plaintiff) J Wilson (Defendant) Solicitors: Corrs Chambers Westgarth (Plaintiff) Russell McLelland Brown Lawyers (Defendant) File Number(s): 2019/175348 Publication restriction: Nil Judgment 1. By amended summons filed on 5 June 2019 the plaintiff, Pilbara Ports Authority, seeks orders pursuant to s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("the Act"), to transfer proceedings from the District Court of New South Wales ("District Court") to this Court and then pursuant to ss 5(2)(b)(ii)(C) and 5(2)(b)(iii) of the Act, to transfer the proceedings from this Court to the Supreme Court of Western Australia. 2. The principal proceedings were commenced by statement of claim in the District Court, Civil Division, Wollongong registry on 23 April 2019. 3. The proceedings arise from an accident that occurred on 25 April 2016, Mr Ashton claims that he tripped on a metal grate or mat outside the lunchroom at the administrative buildings of the Utah Point bulk load out facility in Port Hedland, Western Australia ("WA"). Mr Ashton says as a result of the accident he injured his right ankle, calf, hip, knee and back and also suffered psychological injury. He sued Pilbara Ports for negligence in failing to take proper precautions to prevent the accident. He also makes an alternative case for breach of statutory duty under the Occupational Safety and Health Act 1984 (WA). 4. The proceedings are still at an early stage and no defence has yet been filed awaiting determination of the present application. No orders have yet been made for service of evidence, although it seems that at least one medico-legal expert report has been served by Mr Ashton's Wollongong-based solicitors. That report was authored by a WA based occupational physician, Dr Neil Owens dated 22 May 2017. 5. Despite a reasonably detailed Statement of Particulars having been filed on 23 April 2019, I was informed by counsel for the plaintiff that there has not been service of the extensive material referred to in that Statement of Particulars. 6. Another matter relevant to the application is that Mr Ashton grew up in Wollongong, New South Wales ("NSW") but was in WA for three years between 2014 and 2017 working in the Pilbara. He returned to his hometown of Wollongong in August 2017 and has remained there since. 7. Mr Ashton's case is that he has been unable to return to work because of his injuries and he remains unemployed. He and his partner have a baby who is currently four months old. 8. Mr Ashton opposes the transfer. 9. The substantive matter for me to determine is whether or not it is in the interests of justice for me to grant the transfer, given the various countervailing factors raised by each opposing party. Legislation and applicable principles 1. Section 5(2) of the Act provides: 5 Transfer of proceedings … (2) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court, (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory, (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and (C) the interests of justice, it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court. 1. Section 8 of the Act provides: 8 Orders by Supreme Court (1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in: (i) a court, other than the Supreme Court, of the State, or (ii) a tribunal established by or under an Act, and (b) it appears to the Supreme Court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court, or (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court. (2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court. (3) Where a proceeding is removed to the Supreme Court in accordance with an order made under subsection (1), the Supreme Court may, if the Supreme Court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed. 1. The relevant principles to be drawn from the cases are accurately and helpfully set out in [15] of the plaintiff's written submissions. They are: "a. The power to exercise the power to transfer is not a discretionary power but a mandatory obligation when the interests of justice are determined. No question of discretion arises: BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at 434-5 [62]-[63] (per Gummow J); 481 [222] (per Callinan J). b. The plaintiff's choice of forum, indicated by commencement of the proceedings, does not require any specific emphasis or weight to be given to it: Schultz at 425 [25] (per Gleeson CJ, McHugh and Heydon JJ); 439 [77] (per Gummow J); 466 [170] (per Kirby J); 492 [258] (per Callinan J). c. The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424 [22] (per Gleeson CJ, McHugh and Heydon JJ). d. 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: Schultz at 421 [15] (per Gleeson CJ, McHugh and Heydon JJ). e. The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at 419-20 [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski [2007] NSWSC 440 at 411 [69]. f. Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at 422-3 [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ). g. In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear: Schultz at 423 [19] (per Gleeson CJ, McHugh and Heydon JJ). h. Significant weight will, as a general rule, be given to the place of the tort and, in personal injury matters, the place where the parties live: Ewin v BHP [2005] VSC 4 at [33]. Where these coincide, that will ordinarily resolve the question of the more appropriate forum, although other factors may still need to be given careful consideration to determine in which court it is in the interests of justice that the proceedings be heard: James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at 361 [7]. i. It is also relevant if there is a coincidence of the law of the forum (lex fori) and the law of the place where the tort was committed (lex loci delicti) and this will avoid debate concerning substantive and procedural law: Schultz at 444 [99] (per Gummow J)." Factors in favour of transfer to WA: Plaintiff's submissions 1. Counsel for the plaintiff, Mr Chiu, argued in his written submissions that there was a preponderance of connecting factors with Western Australia. Those factors were identified as follows: "(a) At the time of the accident Mr Ashton was a resident of Western Australia. (b) The sole defendant to the principal proceedings is a statutory corporation formed under Western Australian law, and is based in Western Australia with no presence in New South Wales (Affidavit of Michael do Rozario [5]-[6]). (c) The accident and the underlying negligence alleged both occurred in Port Hedland, Western Australia (Affidavit of Michael do Rozario [7]). (d) The law of the place of the tort is the law of Western Australia, where the alleged breach of duty and where Mr Ashton's alleged injury was suffered. (e) Accordingly, the Civil Liability Act 2002 (WA) applies to the assessment of liability and damages. (f) The claim includes allegations of breach of statutory duties arising under Western Australian statute law, namely the Occupational Safety and Health Act 1984 (WA) and the Occupational Safety and Health Regulations 1996 (WA). (g) Until mid-2017, Mr Ashton's medical treatment following the incident occurred in Western Australia (Affidavit of Michael do Rozario [12]). (h) Other than Mr Ashton, potential lay witnesses on liability all reside in Western Australia (Affidavit of Michael do Rozario [15]-[16]). (i) It would be significantly more expensive for Pilbara Ports to conduct its defence of the principal proceedings in Wollongong rather than in Western Australia (Affidavit of Michael do Rozario [17])." 1. Mr Chiu submitted that the reasoning of Gleeson CJ (with whom McHugh and Heydon JJ agreed) in BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 ("Schultz") at [14]-[16], is persuasive in terms of how I should deal with balancing the parties' conflicting interests and that I should take care not to be persuaded that in the interests of justice, the Court should favour one particular party over another: "[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." 1. Mr Chiu submitted that the need or otherwise for a view was a neutral factor in the absence of evidence clarifying the position as to whether a view is necessary. 2. It was emphasised by Mr Chiu that the case is about a worker who was in WA, suing a WA statutory corporation as occupier for an accident that happened in WA, occurring because of a breach of duty of that statutory corporation according to WA legislation, (Civil Liability Act 2002 (WA)) as well as occupational health and safety legislation and regulations from WA with potential lay witnesses such as people who provided first aid, prepared the incident report and undertook an initial investigation of the accident, all being in WA. 3. It was argued that in terms of liability, there is certainly close connection to WA both in terms of where the accident happened, who it involved, and the law that is to be applied to determine liability. 4. It was submitted that there is a significant connection with WA in respect of the damages issues. There has already been a workers compensation claim under WA law, there was a series of initial treating doctors, most of whom were based in WA with the defendant not moving to the Illawarra again until August 2017. It was submitted that in effect, the defendant remained in WA for a "significant" period of time (16 months) before returning to NSW. 5. The approach urged upon me by Mr Chiu was that the application boiled down to two broad considerations. Firstly, looking at the cause of action and liability and the injury these have close connecting factors to WA as opposed to NSW. Second, there is procedural convenience based on where people are currently living and where witnesses and experts are, and the Court needs to look at that for both parties, not just one party. 6. Mr Chiu argued that there were few if any connecting factors to NSW other than that Mr Ashton continues to live in NSW and thus continues to suffer ongoing damage whilst living in NSW. Therefore, really the proposition is limited to procedural convenience for Mr Ashton to prosecute his case in NSW and whether that outweighs what is submitted to be the strong inherent connection of the case to WA. 7. Mr Chiu submitted that paragraphs [15] and [16] of Schultz, combined with what Spigelman CJ said in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [7] means that care has to be taken when considering the procedural advantage of one party in litigating in a particular forum and the Court must stay alert for the possibility that that advantage may well cause a disadvantage to the opposing party: "[7] To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross-vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of "appropriate court", although other factors may need to be assessed in the process of determining where the interests of justice lie." 1. My attention was also drawn to a decision of Button J in Michael Anthony Luxury Cars Pty Ltd v Connexwire Ltd [2019] NSWSC 1084 ("Luxury Cars v Connexwire") as a useful approach to various factors, in particular application of the law of another state, that may provide some guidance for my consideration. Paragraphs [35]-[37] of that judgment provide: "[35] Sixthly, counsel for Connexwire contended that, even leaving aside the assertion of relevant identicality, the New South Wales and Queensland Sale of Goods Acts are very similar and not overly complicated pieces of legislation, with the result that it would not be difficult for a judge of the District Court of New South Wales to understand, interpret, and apply the Sale of Goods Act of Queensland. Again, the point was that, even accepting that part only of the claim is based upon Queensland legislation, there is neither disadvantage nor advantage in the matter being resolved in New South Wales or Queensland; that aspect of the statement of claim, it was said, is intractably neutral. [36] In my opinion, this submission is true as far as it goes. By that I mean, I accept that a judge of the District Court of New South Wales would, with respect, be perfectly capable of interpreting the Sale of Goods Act of Queensland, even if, as one would expect, there is a body of case law about it that differs – at least to some degree – from the body of case law about our analogous Act. [37] Even so, as I have said, difficult aspects of the resolution of this summons, founded upon an assessment of procedural and substantive aspects of the law in Queensland, demonstrate to my mind that, other things being equal, it is preferable, indeed desirable, for judges to interpret and apply legislation of their own States or Territories, with which one would very often expect them to have a deep familiarity as law student, solicitor, barrister, and judge." 1. Mr Chiu's oral submissions also focussed on the weight that this Court ought to give to the inconvenience to Mr Ashton, assessed by reference to the ability to mitigate that inconvenience. It was argued that one inconvenience is lay evidence and another is expert evidence. It was argued that inconvenience in terms of legal representation can be dealt with by using Perth lawyers, such as the ones used by the defendant for his workers compensation claim. 2. On inconvenience, it was submitted that I should take into account the offer made in writing by the solicitor for the plaintiff that additional travel costs involved in having to attend WA for the defendant and his partner will be covered. I hasten to add that this offer is limited to "up front" costs of the plaintiff and his wife for travel and accommodation and this must abide the outcome of the overall proceedings. A more generous arrangement could have been made, such as the payment not being subject to costs in the cause, but was not. In stating that position, I am not being critical of the approach taken, but it is a factor I take into account. 3. It was also argued that the reality is that often experts are not called to give evidence and are often not required to be physically present to give evidence and can manage by audio-visual links. The point was also made that to date the only expert report served by the defendant was one of a WA medico-legal expert and despite other assessments apparently being arranged, and reference made to other reports in the Statement of Particulars, no other medical evidence has been served. This Court is thus not able to make a more nuanced assessment of the likelihood of the calling or otherwise of certain NSW based experts. (Although I query whether this Court could make any useful assessment of that at this early stage). 4. The plaintiff tendered some extracts from the practice directions from the Supreme Court of WA which indicated that there was general allowance for evidence to be given by audio-visual link. There were also mechanical provisions for the taking of evidence by audio-visual link referring back to s 121 of the Evidence Act 1906 (WA). 5. There was however no evidence about the WA Supreme Court's current listing availability, listing procedures or potential delays that could be caused to Mr Ashton's proceedings if it was transferred. 6. It was submitted that Mr Ashton's asserted impecuniosity was not established on the evidence because there is no specific evidence as to assets and money he has. In effect, the Court is being asked to draw an inference that the defendant has no money; the Court ought not draw that inference in light of the settled workers compensation claim in 2017 and mention of a pursuit of a total permanent disability claim still being finalised, about which no detail has been given. Factors against transfer to WA: Defendant's submissions 1. Counsel for Mr Ashton, Mr Wilson, submitted persuasively that the proceedings had the most real and substantial connection to NSW. He acknowledged that since Schultz, no particular significance is now attached to the original choice of forum. 2. Mr Wilson submitted that first, courts in NSW are familiar with the application of interstate law; second, the defendant resides in NSW, his solicitor and counsel practice from NSW and transfer to WA will incur additional expenses for him; third, some of his medico-legal experts are in NSW and will have to travel to WA which adds expense to the litigation; fourth, all of the defendant's treating doctors are in NSW and will not readily have audio-visual facilities available; fifth, potential delay and extra costs associated with removal to the Supreme Court in WA; sixth, the defendant himself and his lay witnesses on damages, for example home care and assistance, will have to travel to WA to give evidence; seventh, the defendant is unemployed and has little or no money and the additional expense and inconvenience to an impecunious plaintiff is a factor relevant to the question of the interests of justice; eighth, the facts are not complex and due to remedial action already taken in WA there is no need for, or purpose in having a view of the WA accident site; ninth, the only real factor of convenience relied on by the plaintiff is so its own witnesses do not have to travel. Those witnesses can travel or give evidence by AVL. 3. Mr Wilson made the point that the test must be focussed on what the interests of justice require, not just using as a type of trump card that because the applicable law is that of WA, it dictates that the matter must be heard in that jurisdiction. In support of that submission reliance was placed on Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab [2016] NSWSC 1749 ("Bechtel Constructions") where Campbell J made the point that the question of the applicable law should not be elevated to the status of a trump card, decisive in every case. 4. There is no strong evidential connection with WA except for the witnesses and no guarantee that such witnesses will be residing in WA at the time of trial. 5. The proceedings are "advanced" in the District Court in NSW and that court is able to dispose of its civil business expeditiously, with a likely hearing date being given in early 2020. 6. In oral submissions Mr Wilson pointed out that the defendant was in no way "forum shopping" when he commenced proceedings in the Wollongong District Court. This was simply the court local to his home town to which he returned after two years in WA. It is apparent that the defendant is not going to live in NSW just for a short time; this is his entrenched place of life and his family are all there. 7. There were three or four months of treatment in WA following the injury, but that type of treating doctor evidence is unlikely to be the subject of oral evidence and thus there is unlikely to be a requirement those doctors be physically present to give evidence. In any event, NSW courts can accommodate this by making arrangements for evidence by audio-visual link. 8. If the proceedings are transferred to WA, there will be requirements upon Mr Ashton to travel to WA for medico-legal examinations, or those examinations, if conducted in NSW, would create difficulties when there is a need for those NSW doctors to conclave and give joint evidence. If all those doctors need to be giving evidence together in WA this creates a significant further costs burden upon Mr Ashton, not to mention unnecessary costs to be incurred by the plaintiff as well. Mr Wilson argued that transfer to WA would lead to extra costs for both parties. When balanced against bringing five lay witnesses from WA, if they are truly necessary, to give evidence pales into insignificance. 9. Ms Curran's affidavit identifies a NSW general practitioner, a psychologist, an orthopaedic specialist, a pain management specialist and a physiotherapist as experts with whom the defendant has consulted. Ms Curran also refers to three medico-legal assessments having been undergone in NSW with an occupational physician, a psychiatrist and an occupational therapist in April and July this year. 10. Mr Wilson submitted that there would be other family members who would potentially need to give evidence in WA about damages. There is preference that that kind of evidence be given in person so that the judge can make any necessary credibility findings. 11. Should the litigation proceed in WA an unsatisfactory position would be created for the conduct of the matter with agents attending directions hearings and interlocutory disputes. 12. In response to the submission made regarding Luxury Cars v Connexwire, Mr Wilson submitted that judges of all courts in all jurisdictions are in a position to deal with the law, and that includes the law relating to or arising from other jurisdictions. This is an issue for the capabilities of the judges themselves rather than the State that they come from. It is something that arises commonly and is not at all unusual. 13. It was argued that the occupational health and safety legislation and the Civil Liability Act 2002 (WA) are similar if not identical to legislation of that nature in NSW and that NSW courts are perfectly capable of dealing with such issues. Plaintiff's submissions in reply 1. In reply, Mr Chiu directed my attention to Mr do Rozario's affidavit as to the cost of the defendant running the proceedings in Wollongong. This is a valid point as far as it goes, however Mr do Rozario's affidavit deals with the location of liability witnesses and relevant personnel only, and under the heading "Expense" says "the conduct of the case in Wollongong will be significantly more expensive than conducting the case in Western Australia, because of the logistics of arranging for the flights and accommodation of the witnesses and instructing team…" however there is no analysis of expected expense relating to the attendance of experts in NSW for medico-legal assessments yet to occur and the costs and realities of having those persons attend conclaves or joint evidence in WA. The affidavit does not address those matters but focuses only on liability issues and the plaintiff's solicitor's current assessment of how the case may proceed. 2. I also note paragraph [15] of Mr do Rozario's affidavit does not state that the five identified people will be called but simply that they "may be witnesses in the proceeding" (emphasis added). It seems to me at this early stage, with no agreed statements of issues or clarification as to what matters will remain in dispute, the witness list for the plaintiff may be smaller than suggested for the purposes of this application. Offers by the plaintiff to cover certain costs to allay the defendant's financial concerns related to transfer 1. On 10 September 2019 Mr do Rozario sent a letter to the solicitor for the defendant referring to the affidavit and submissions filed on behalf of the defendant and noting that the defendant is currently unemployed, has a young child and has concerns regarding the cost he will incur if he is required to travel to WA for a trial. This is followed by an offer in the following terms: "If the Defendant agrees to proceeding no. 2019/00125997 being transferred to a Western Australian Court, and to allay the Defendant's financial concerns, Pilbara Ports Authority is willing to meet the reasonable, up-front travel and accommodation costs for the Defendant and his partner to attend the trial in Western Australia, on the basis that those costs can be costs in the cause." 1. This was followed by an invitation to discuss the offer in more detail and a request that the offer be relayed to the defendant and that the solicitor revert to the plaintiff's solicitor as soon as possible. 2. In response to matters raised by the Court in exchange with the bar table, Mr Chiu obtained further instructions and indicated on the record that the plaintiff extended the offer made in the letter of 10 September 2019 to also pay Mr Ashton's costs of attending any mediation in WA, if it is necessary for a mediation to happen in WA, on the same basis that was set out in the 10 September letter. 3. Additionally Mr Chiu clarified that should the Court order transfer of the proceedings to WA, the plaintiff will pay the costs of the defendant thrown away by reason of the transfer, but the plaintiff would seek an order for costs against the defendant for these Supreme Court transfer proceedings. 4. I consider this to be a surprising position to take in circumstances where even without opposition from the defendant, this Court would be required to carry out an assessment of the nature of the litigation and the statutory power and considerations, and prepare a judgment assessing those considerations and applicable law. The plaintiff would incur those costs even for an unopposed application. 5. There is no suggestion that it was not open to the defendant to commence the proceedings as he has done in the District Court at Wollongong. The proceedings in this Court were filed to advocate for a value judgment to be made by this Court on recently filed affidavit material setting out how the plaintiff may choose to defend Mr Ashton's case, arguing that "in the interests of justice", (a very flexible concept), it is more appropriate for the Court to transfer the proceedings to WA. It is hardly surprising that the defendant responded by assisting the Court with countervailing factors. Decision 1. The affidavit of Mr do Rozario at paragraph [15] describes five individuals who "may" be witnesses in the proceeding, not one of whom actually witnessed the defendant's fall. The workers compensation claim is over, an historical fact, and is an issue of record, not one that would require the physical attendance of a WA witness. 2. Whilst Mr Ashton remained in WA for a 16 month period after the accident, he has been in NSW for well over two years since then, and I accept that he is likely to remain in NSW, particularly as the reason he was in WA was for work that he asserts he can no longer do. 3. Mr Ashton's own right and need to be present for the whole of his case is much more than a "procedural convenience". If the matter proceeds to trial it is inevitable that he will be required to give evidence and be cross-examined. 4. If there are issues about care and assistance and damages it is almost inevitable that Mr Ashton's partner will be required to be cross-examined. These considerations are important ones and carry great weight, particularly when viewed against the possibility that a person who for example, completed a first aid form "may" give evidence, and such a person's importance to the proceedings remains very much unknown at this stage. 5. As stated by Button J in Luxury Cars v Connexwire, it is desirable for judges to interpret and apply legislation of their own States and Territories with which they are familiar but that is just one amongst eight or so other factors his Honour weighed and assessed in making the decision he did, and this was said in the context of "other things being equal". Here, I am persuaded by Mr Wilson's submissions, in particular those matters set out in [30] of my judgment when compared with the matters raised by Mr Chiu, that all things are not equal here. I adopt and agree with the view of Campbell J in Bechtel Constructions that consideration of courts applying local laws should not be elevated to the status of a "trump card", dictating the success or otherwise of a transfer application. 6. I have given careful consideration to the available evidence and the detailed submissions made on behalf of both parties. Balancing the interests of the parties and the practical realities of the litigation, I am not persuaded that it is in the interests of justice to make the transfer orders sought. Orders 1. The Amended Summons is dismissed. 2. The plaintiff is to pay the defendant's costs. ********** 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: 30 October 2019