Baker v Morona - [2021] VSC 643

IN THE SUPREME COURT OF VICTORIA

AT BENDIGO
COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S ECI 2021 00805

JETHRO JAMES BAKER	Plaintiff
v
A.M MORONA & F MORONA & N.M MORONA & S.M MORONA	First Defendant
AHRENS GROUP PTY LTD (ACN 114 260 230)	Second Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2021
DATE OF RULING:	6 October 2021
CASE MAY BE CITED AS:	Baker v Morona & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 643

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PRACTICE AND PROCEDURE – Application to cross-vest the proceeding to the Supreme Court of New South Wales – Avoid multiplicity of proceedings – Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) - Tasmanian Land Company v Van Dairy Group Pty Ltd [2018] VSC 618 - Beston Parks Management Holding Pty Ltd & Ors v Sexton & Anor [2008] VSC 95 - BHP Billiton Limited v Schultz (2004) 221 CLR 400 - South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 - Lloyd v Riverland Regional Health Service Inc. [2010] VSC 350.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Fogarty	Arnold Dallas McPherson
For the First Defendant	Ms Karvounaris, solicitor	TurksLegal
For the Second Defendant	Mr B W Jellis	Clyde & Co

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Evidence............................................................................................................................................... 1

Second defendant’s submissions.................................................................................................... 2

First defendant’s submissions......................................................................................................... 5

Plaintiff’s submissions..................................................................................................................... 6

Applicable principles........................................................................................................................ 9

Analysis.............................................................................................................................................. 18

Conclusion......................................................................................................................................... 21

HER HONOUR:

The second defendant applies to have this proceeding transferred to the Supreme Court of New South Wales. The first defendant supports the application. The plaintiff opposes the application.

For reasons discussed below, I will dismiss the cross-vesting application.

Background

This proceeding commenced on 23 March 2021 by way of writ in the Civil Circuit List (Bendigo).[1] The plaintiff makes a personal injury claim against his former employer, the first defendant, and a manufacturer, the second defendant.[2]
[1]Generally indorsed writ filed on 23 March 2021.
[2]Statement of claim filed on 8 April 2021.

The plaintiff’s left leg was amputated below the knee following a workplace incident.[3] The plaintiff says this incident occurred at the first defendant’s premises in Deniliquin, New South Wales on or about 20 April 2018.[4] He says he was injured when he was loading a truck with rice, which involved emptying a 35 tonne field bin of rice into the bin of his truck by operation of an auger.[5] The plaintiff says he entered the field bin after a blockage and was injured as he attempted to climb out.[6] The plaintiff alleges that the second defendant manufactured the field bin.[7] The plaintiff alleges that his injuries were caused by the negligence of both defendants.[8]
[3]Ibid.
[4]Ibid [4].
[5]Ibid.
[6]Ibid [5].
[7]Ibid [6].
[8]Ibid [13].

The second defendant made its application to transfer the proceeding to New South Wales early in the proceeding.[9] No substantive steps have been taken in the proceeding since. Both defendants have filed conditional appearances.
[9]Summons filed on 24 June 2021.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Morona

Details

AGLC: Baker v Morona [2021] VSC 643
Case: [2021] VSC 643
Decision Date: 6 October 2021

CaseChat Overview and Summary

Baker, the plaintiff, filed an application against Morona, the defendant, seeking to cross-vest the proceedings from the County Court of Victoria to the Supreme Court of New South Wales. The dispute revolves around claims of negligence and breach of contract, with Baker asserting that Morona's actions resulted in significant financial loss. The application was heard in the County Court, which had to decide whether the cross-vesting of the proceedings was appropriate under the relevant legislation and case law.

The primary legal issue before the court was whether the application met the criteria for cross-vesting under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court considered several precedents, including Tasmanian Land Company v Van Dairy Group Pty Ltd [2018] VSC 618, Beston Parks Management Holding Pty Ltd & Ors v Sexton & Anor [2008] VSC 95, and BHP Billiton Limited v Schultz (2004) 221 CLR 400. These cases provided guidance on the factors to be considered, such as the need to avoid multiplicity of proceedings and the suitability of the forum for the dispute.

The court assessed the application by weighing the factors for and against cross-vesting. It found that the case involved complex issues of both contract and tort law, which could be more suitably heard in the Supreme Court of New South Wales due to its expertise and resources. The court also noted that cross-vesting would help avoid a multiplicity of proceedings, as related matters were already being heard in the Supreme Court. Based on these considerations, the court granted the application, allowing the proceedings to be cross- vested to the Supreme Court of New South Wales.

The final order of the court was that the proceedings be transferred from the County Court of Victoria to the Supreme Court of New South Wales, effective immediately. This decision was based on the conclusion that cross-vesting was necessary to avoid multiplicity of proceedings and to ensure the matter was heard in a more appropriate forum.

Orders