Armstrong v State of New South Wales
[2025] VSC 270
•8 May 2025 (ex tempore and revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2024 03360
| CHRISSIE ARMSTRONG (a pseudonym) | Plaintiff |
| v | |
| STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITIES & JUSTICE) | Defendant |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 May 2025 |
DATE OF RULING: | 8 May 2025 (ex tempore and revised) |
CASE MAY BE CITED AS: | Armstrong v State of New South Wales |
MEDIUM NEUTRAL CITATION: | [2025] VSC 270 |
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PRACTICE AND PROCEDURE – Cross-vesting application – Proceeding claiming damages for personal injury arising out of alleged sexual and physical abuse whilst the plaintiff was a child in the care of New South Wales – Application to transfer proceeding to New South Wales – Effect of s 58 of the Judiciary Act 1903 (Cth) and s 75 of the Australian Constitution – Whether the Supreme Court of New South Wales is the more appropriate forum – Interests of justice considered – Supreme Court of Victoria more appropriate forum – Defendant’s application dismissed – Judiciary Act 1903 (Cth) s 58; Australian Constitution s 75(iv); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) – BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Irwin v State of Queensland [2011] VSC 291; Vernon v Kaefer IntegratedServices Pty Ltd [2023] VSC 667 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold Ms O Richwol | Harris Lieberman Solicitors Pty Ltd |
| For the Defendant | Mr A Woods SC Ms I Smojver Ms C Trahanas | Wotton & Kearney |
HIS HONOUR:
The plaintiff, Chrissie Armstrong, commenced this proceeding in this Court against the State of New South Wales by way of written statement of claim filed 27 June 2024.
The plaintiff seeks damages for psychiatric injury sustained as a result of sexual and physical abuse which she alleges occurred between 2007 and 2012 whilst she was a child in the care of what is now known as the State of New South Wales Department of Communities and Justice.
The plaintiff pleads that the defendant owed a duty of care arising in the context of a parental responsibility order and that this duty was breached through the defendant's negligence.
The defendant accepts in its defence that it owed the plaintiff a duty of care, the scope of which is not admitted but denies any breach occurred and further denies any liability to the plaintiff for any injury, loss and/or damage said to have been sustained as a result of the alleged breaches.
By way of summons filed 8 August 2024, the defendant made an application to transfer the proceeding to the Supreme Court of New South Wales pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) (Cross-Vesting Act). This was opposed by the plaintiff and the parties both filed written submissions in support of their respective positions.
On 21 March 2025, I made an order for further submissions regarding the effect, if any, of s 58 of the Judiciary Act 1903 (Cth) (Judiciary Act) and s 75 of the Australian Constitution, on jurisdiction and/or the question of where the proceeding should be heard.
In submissions filed on 15 April 2025, which I must say I found very helpful, the defendant submitted:
(a) Section 58 does not invest jurisdiction in the High Court or a State Supreme Court in claims against a State in contract or in tort, in respect of a matter in which the High Court has original jurisdiction or can have original jurisdiction conferred on it. Jurisdiction is conferred by s 75(iv) of the [Australian] Constitution and s 39(2) of the Judiciary Act.
(b) Section 58 identifies the forum in which actions against a State, whether in contract or in tort, in respect of a matter in which the High Court has original jurisdiction or can have original jurisdiction conferred on it, may be instituted.
(c) If, in such a matter, the State is sued in a forum not specified in s 58, the State may waive its rights to insist that the relevant proceeding be commenced in a forum specified in s 58. In HWC v Corporation of the Synod of the Diocese of Brisbane [2008] QSC 212; 220 FLR 92, this was the approach adopted by the State of South Australia [28].
The plaintiff generally agreed with this analysis and I am satisfied that it accurately states the law.
The defendant stated that it would not rely on s 58 of the Judiciary Act nor s 75 of the Australian Constitution in relation to the question of where the proceeding should be heard. It is thus unnecessary to consider this issue further in relation to the present application.
I turn now to the defendant’s substantive application under s 5(2) of the Cross-vesting Act. That section relevantly provides:
Section 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—
….
(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.
(emphasis added)
The relevant principles are not in dispute. They were discussed in BHP Billiton v Schultz[1] and elaborated upon by Robson J in Irwin v State of Queensland[2] at [14]. I do not intend to set out the entirety of paragraph 14, but I indicate to the parties that I have had regard to all of the factors that they relied on in that paragraph in my determination.
[1](2004) 221 CLR 400.
[2][2011] VSC 291.
In Vernon v Kaefer Integrated Services Pty Ltd,[3] Forbes J provided a helpful summary of the principles established in BHP Billiton v Schultz and Irwin v State of Queensland, which I embrace. Her Honour said:[4]
Proving the other court is the more appropriate forum does not require the first court to be shown to be clearly inappropriate. The starting point is the court in the place where the tort occurred. From the starting point, the court considers the relevant connecting factors to the first court and those of another court. Where there is a coincidence between the location of the tort and the residence of the parties, then the court of that place will generally be the more appropriate or natural forum. However, where there is not such a coincidence, the Court will consider and place appropriate weight on the various connecting factors to arrive at the more appropriate court. Different places of residence of the parties may cancel each other out as connecting factors to one or other forum. In Irwin v State of Queensland, Robson J summarised these factors in a tortious action such as in this proceeding as including: the place where the wrong occurred, the residence of the parties (and for a corporation the place where it carries on business), the convenience of parties and witnesses, the law governing the proceeding, the experience of a particular court and its ability to provide an efficient and speedy trial, and the health condition of a party.
[3][2023] VSC 667.
[4]Ibid [12]. Forbes J’s summary was adopted by Keogh J in Estate of Terence James Roberts v Midalco Pty Limited [2024] VSC 240, [29].
In the present case, the defendant relies on the following (in summary):
(a) All of the relevant acts or omissions on which the plaintiff relies occurred in New South Wales;
(b) Aspects of the plaintiff's claim will be governed by New South Wales legislation and in particular the Civil Liability Act 2002 (NSW) (Civil Liability Act). The Supreme Court of New South Wales is best placed to consider and apply substantive provisions of New South Wales law;
(c) Transfer to the New South Wales Supreme Court will ensure a coincidence of the law where the tort occurred and the law of the forum (I have eschewed the Latin phrases);
(d) Many of the witnesses likely to be called will be Departmental staff who reside in New South Wales;
(e) The defendant has no relevant presence in Victoria and its solicitors are located in Sydney, New South Wales;
(f) Whilst the plaintiff resides in Victoria, she resides close to the border and it could be assumed so do her treating doctors;
(g) In its written submissions, the defendant suggested that the Supreme Court of New South Wales is more likely to accommodate an earlier trial than the Victorian Supreme Court but it now accepts that the evidence does not permit a determination on that factor either way; and
(h) Finally, it was submitted that a factor to be considered in the transfer is the fact that the Institutional Liability List in the Supreme Court of Victoria is a busy list and transfer would facilitate this Court's resources being devoted to those cases already in the list and to Victorian litigants.
The plaintiff opposes the application to transfer on grounds, which can summarised as follows:
(a) The plaintiff and her family reside in Victoria;
(b) If the matter were transferred to New South Wales, it would be likely to cause the plaintiff personal and financial hardship;
(c) The lay and expert witnesses intended to be called on her behalf are located in Victoria or in Albury, which is on the Victorian border;
(d) It is in fact not clear where the defendant's witnesses are located. At least one is located in Victoria;
(e) The plaintiff would need to instruct new solicitors as those presently instructed are a small Wodonga-based firm without the capacity to run cases in New South Wales, whereas the defendant is likely to have lawyers it regularly instructs in Victoria;
(f) The transfer creates the potential for delay in the proceeding;
(g) The common law applies to the plaintiff's cause of action and the Supreme Court of Victoria is able to deal with the Civil Liability Act; and
(h) A jury trial will result in a speedier trial than one before a judge alone.
I accept that the following factors weigh significantly in the balance in favour of transfer to the Supreme Court of New South Wales:
(a) In particular, all of the relevant acts or omissions on which the plaintiff relies did occur in New South Wales;
(b) Aspects of the plaintiff's claim will be governed by New South Wales statutes and in particular the Civil Liability Act; and
(c) As the case law emphasises, transfer to the New South Wales Supreme Court will ensure a coincidence of the law where the tort occurred and the law of the forum.
That said, the plaintiff's cause of action is common law negligence and the Supreme Court of Victoria is well able to apply the provisions of New South Wales legislation.
I am not persuaded that the location of witnesses is a significant factor either way in this case. I accept it is likely some of the defendant's lay witnesses will come from New South Wales and I accept that the evidence establishes that the plaintiff's lay and expert witnesses come from Victoria or Albury. Whether the proceeding is heard in Victoria or New South Wales, it will occasion some level of inconvenience to both parties. In that regard though, it will be possible for interstate witnesses to give evidence via video link. To the extent that there are advantages to having witnesses give evidence in person, the State of New South Wales plainly has greater financial resources and a greater capacity to meet the expenses of travel and accommodation for interstate witnesses. Thus, this factor weighs slightly in favour of the plaintiff's argument for retention in Victoria but only slightly.
As I have indicated, the evidence does not establish that either forum will necessarily result in a more speedy resolution of the plaintiff's claim. In the circumstances, this factor is neutral.
Ultimately, however, in my view, two matters on which the plaintiff relies tip the balance in assessing whether it is in the interests of justice to transfer the proceeding.
As I have indicated, the plaintiff resides in Victoria with her husband and two young children. She does not drive. The plaintiff's husband is the sole income earner for the family, self-employed, and would be unable to travel long distances for support purposes as this would affect business and childcare arrangements. If the matter were transferred, the plaintiff would likely be left without the support of her husband. Alternatively, if her husband were to attend, there would be financial and childcare implications which would create hardship for the family. In light of the nature of the allegations which the plaintiff makes in the proceeding, I am persuaded that this is an important matter and that this inconvenience and hardship should be avoided if possible.
The plaintiff seeks to have the proceeding heard in the Supreme Court of Victoria at Mildura. The defendant submits I should take the case as I find it, which is that the case is currently in the Melbourne Registry. I am not persuaded that this is the correct approach. If the matter is not transferred and in light of the matters on which the plaintiff relies, I think it is appropriate to take into account the real possibility and perhaps the likelihood that the matter will be heard in Mildura. The Mildura Court is a short distance from the plaintiff's residence and a hearing there would allow the plaintiff to be supported by her husband without disruption to his business and with convenient childcare arrangements. Set against this, the State of New South Wales has significant resources and will, in my view, not be seriously inconvenienced by a hearing in Mildura.
The evidence also establishes that Harris Lieberman have been retained to act for the plaintiff since June 2020 and would not be able to continue if the proceeding was transferred to New South Wales. Instructing new solicitors would be another obstacle for the plaintiff. I accept, as the defendant submits, that there are many capable firms in New South Wales who might act on a no win, no fee basis but for a person in the plaintiff's circumstances, changing solicitors is no small thing.
The defendant's current firm of solicitors has an office in Victoria but it says that none of the persons in that office are approved by the defendant. It is not apparent that this fact will have any impact on the defendant's capacity to be represented by its current solicitors if the proceeding is heard in Mildura. But, even if that were necessary, I accept the plaintiff's submission that it is likely that the defendant will have solicitors that it uses for proceedings in this State.
Overall, therefore, I am persuaded that the inconvenience to the plaintiff from a change of solicitors, if the matter transfers to New South Wales, is a matter which weighs significantly in the balance in favour of the matter remaining in this Court.
I should state a number of other matters. I have not taken into account the plaintiff's desire for a trial by jury and I do not find it necessary to place any real weight on the evidence of her accredited mental health social worker.
On the other side of the ledger as it were, I do not accept that it is a factor in favour of transfer that the Institutional Liability List is a busy list with many cases.
In the circumstances, while there are factors which point in favour of a transfer to the Supreme Court of New South Wales, on an overall assessment of all of the relevant matters, and in particular taking into account the hardship and inconvenience likely to be occasioned to the plaintiff if the proceeding is heard in that Court, I am not satisfied that it is in the interests of justice that the proceeding be determined in the Supreme Court of New South Wales.
The defendant's summons filed on 8 August 2024 will be dismissed.
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