Beckett v Lemanski

[2019] ACTSC 322

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Beckett v Lemanski

Citation:

[2019] ACTSC 322

Hearing Date:

15 November 2019

DecisionDate:

19 November 2019

Before:

Crowe AJ

Decision:

See [20]

Catchwords:

PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer to NSW Supreme Court in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – preponderance of connecting factors with NSW – uncertainty as to the ability of the parties to obtain a hearing date if the matter is cross-vested – greater certainty as to the timely completion of the matter if heard in the ACT – consideration of the interests of justice – application dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW)

Compensation to Relatives Act 1987 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 5

Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Bailey-Brown Southern New South Wales Local Health District [2019] ACTSC 78

Bateman v Fairfax Media Publications Pty Ltd & ors [2013] ACTSC 78, 8 ACTLR 13

Texts/material cited

District Court Amendment Bill 1997 (NSW)

New South Wales, Parliamentary Debates, Legislative Council, 26 June 1997, Second Reading Speech (The Hon. M. R. Egan)

Parties:

Raylene Beckett (First Plaintiff)

Logan Beckett By His Next Friend Raylene Beckett (Second Plaintiff)

Jarod Beckett By His Next Friend Raylene Beckett (Third Plaintiff)

Phoebe Beckett By Her Next Friend Raylene Beckett (Fourth Plaintiff)

Leslie Lemanski (First Defendant)

Transport Accident Commission of Victoria (Second Defendant)

Representation:

Counsel

J Turnbull SC (Plaintiffs)

R de Meryick (Defendants)

Solicitors

Holman Webb (Plaintiffs)

Gabbedy Milson Lee (Defendants)

File Number:

SC 406 of 2019

Crowe AJ

1. On 13 August 2016, the late Jason Beckett was driving from his home in Wamboin NSW along Sutton Road. The late Leslie Lemanski was driving his vehicle in the opposite direction. Mr Lemanski’s vehicle veered into the path of Mr Beckett’s vehicle and they collided head on. Both men died as a result of the injuries sustained in the collision.

1. Mr Beckett left a widow and three children. Two of the children have special needs and present with behavioural difficulties. Ms Becket and the children continue to live at the Wamboin property.

1. Ms Beckett in her own right and as litigation guardian for the children commenced proceedings in this Court on 25 September 2019 seeking damages resulting from the death of Mr Beckett. The defendants have admitted liability and take no issue with respect to any time limits.

1. By Application in Proceeding filed on 4 October 2019, the defendants seek an order pursuant to sub-s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) (Cross-vesting Act) transferring the proceedings to the Supreme Court of NSW. The defendants undertake, through their counsel Mr Turnbull SC, that if the matter is transferred to that Court they will apply to have it further transferred to the District Court of NSW, for hearing at the Queanbeyan sittings of the Court.

1. The evidence before me consisted of:

(a)The affidavit of Natasha Miller, affirmed on 23 September 2019, filed for the defendants; and,

(b)The affidavit of Nigel Gabbedy, affirmed on 7 November 2019, filed for the plaintiffs.

1. The affidavit of Ms Miller states that the assessment of damages in this matter will be governed by the Motor Accidents Compensation Act 1999 (NSW), the Compensation to Relatives Act 1987 (NSW) and the Civil Liability Act 2002 (NSW). Her affidavit annexes a copy of the Second Reading Speech of the Hon. M. R. Egan, with respect to the District Court Amendment Bill 1997 (NSW) (the Bill). My attention was drawn to the comment of the presenting Minister in the following terms:

By substantially increasing the jurisdiction of the District Court in this manner, a large number of matters … will be redirected to the District Court, which is the appropriate court for these matters to be heard.

1. One of the changes introduced by the Bill was to give the District Court unlimited jurisdiction in motor vehicle accident cases.

1. Mr Turnbull SC submitted that it was apparent from the Minister’s comments and the circumstances of this case that the District Court is the more appropriate forum for this matter. Indeed, that the balance of convenience issues could be cancelled out by listing the hearing of the matter in Queanbeyan, NSW.

1. The affidavit of Mr Gabbedy describes the difficulties encountered for Ms Beckett in caring for her children as a single mother. These difficulties would be greatly increased if the hearing is to be held in Sydney. The medical and psychological services used by the family are either in Queanbeyan or Canberra. The evidence as to Mr Beckett’s employment and likely career trajectory are in or around Canberra, as are the witnesses who will be called to give evidence on the loss of the late Mr Beckett’s services as an owner builder in relation to maintenance and modifications to the family home.

1. In relation to the matter being heard by the District Court in Queanbeyan, Mr Gabbedy said that he had been informed by a person at the District Court Registry that there are two sittings planned in the new year for civil matters. There is one week in March and another in September.

1. Mr Gabbedy estimates that the hearing will take longer than a week. This was seconded in submissions by counsel for the plaintiffs, Mr R de Meyrick.

1. Mr Turnbull SC put from the bar table, without objection, that the Chief Judge of the District Court of NSW has indicated that wherever possible matters should be completed in the court in which the hearing commenced. However, Mr de Meyrick, also without objection, advised that the weeklong sittings in Queanbeyan would likely have a number of mixed short matters listed, which would prevent a longer matter such as this from commencing. Transferring the proceedings to the District Court could therefore result in the parties and their legal representatives sitting around for the week waiting to get their matter before a judge in Queanbeyan, with the risk that the case would just be “shuffled back to Sydney” to ensure that it is heard. Mr de Meyrick said that the plaintiffs will be able to proceed in the early part of 2020.

Consideration

1. The application here is made under sub-s 5(2) of the Cross-vesting Act. The relevant parts of that section are:

(2) If—

(a) a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court (in this subsection called 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 Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

1. The principles applicable to an application such as this were comprehensively summarised by Refshauge J in Bateman v Fairfax Media Publications Pty Ltd & ors [2013] ACTSC 78, 8 ACTLR 13 at [68]-[70].

1. In making the required evaluation as to the interests of justice I have considered the NSW Legislature’s firm view that the District Court is the more appropriate court for the determination of motor vehicle accident claims. I have also taken into account the balance of convenience factors which appear to me to be evenly balanced between the venues contended for. In that regard, the circumstances here are a little different from those in Bailey-Brown Southern New South Wales Local Health District [2019] ACTSC 78 (Bailey-Brown), where McWilliam AsJ concluded that despite strong connecting factors with NSW the difficulties for the parents of the infant plaintiff (who suffered from cerebral palsy) in managing her care during the hearing, led to her Honour concluding that the Supreme Court of NSW was not the more appropriate court to hear the plaintiff’s claims.

1. Here, due to the defendants’ undertaking to transfer the matter to the Queanbeyan Registry of the District Court of NSW, the practical difficulties facing Ms Beckett in managing the hearing while caring for the children would be similar to those which will accompany a hearing in this Court, assuming the case can be heard in one sitting block.

1. As with McWilliam AsJ (see Bailey-Brown at [23]), I do not see the application of the NSW law in this case as a particularly significant factor. As her Honour noted, that law can be applied by this Court just as it would be applied in NSW.

1. This is a finely balanced matter. However, I am not persuaded that the NSW Supreme Court (and through it, the District Court of NSW) is the more appropriate court to hear and determine this matter. The main reason for that conclusion is the increased uncertainty for the parties in obtaining a prompt hearing given the very limited availability of civil listings at the Queanbeyan Registry of the District Court. The risk of the matter not being reached or going over part-heard in Queanbeyan is also a matter of concern. I would expect this case to be given a hearing date in this Court within months of the necessary preliminary steps being completed. Moreover, although there is always a risk that a matter might not be completed during the initial allocated hearing time, that seems far less a risk should the case proceed in this Court.

Conclusion

1. Having regard to the overall interests of justice, I am satisfied that the Supreme Court of the ACT is the more appropriate court to hear and determine the present proceedings.

1. The orders of the Court are as follows:

(1)The Application in Proceeding filed on 4 October 2019 is dismissed.

(2)The defendants are to pay the costs of the Application in Proceeding.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.

Associate:

Date: 19 November 2019