Benson v Suncorp Metway Insurance Ltd - [2000] TASSC 78

[2000] TASSC 78

CITATION: Benson v Suncorp Metway Insurance Ltd [2000] TASSC 78

PARTIES:  BENSON, Sarah Elizabeth
  v
  SUNCORP METWAY INSURANCE LTD

(ACN 075 695 966)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  981/1999
DELIVERED ON:  28 June 2000
DELIVERED AT:  Hobart
HEARING DATES:  23 June 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:

Procedure - Courts and judges generally - Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross-vesting legislation - Where appropriate and in the interests of justice - Generally - Factors relevant to the exercise of the discretion - Relative cost.
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas), s5(2)(b)(iii).

Trade Practices Commission v Collings Construction Co Pty Ltd & Ors (1995) 130 ALR 115; Arrowcrest Group Pty Ltd & Anor v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57, referred to.
Aust Dig Procedure [26]

REPRESENTATION:

Counsel:
           Applicant:  A B Walker
           Respondent:  R M Hamilton
Solicitors:
           Applicant:  Dobson Mitchell & Allport
           Respondent:  Robert M Hamilton

Judgment Number: [2000] TASSC 78
Number of Paragraphs: 19

Serial No 78/2000
File No 981/1999

SARAH ELIZABETH BENSON v
SUNCORP METWAY INSURANCE LTD (ACN 075 695 966)

REASONS FOR JUDGMENT UNDERWOOD J

28 June 2000

This is a defendant's application for an order pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Act"), s5(2)(b)(iii), to transfer a proceeding from this Court to the Supreme Court of Queensland. Accordingly, the order sought will be made if it is in the interests of justice to do so. The proceeding to which the application relates is an action by the plaintiff against the defendant for damages for breach of a contract of insurance. It was commenced by the filing of a writ in this Court on 15 March 2000.

The defendant is a company registered in Queensland and has its head office in Brisbane. According to its concise annual report, 1999, the defendant is "Australia's seventh-largest bank and sixth-largest insurance company, with total assets of $21.5 billion". The plaintiff is a 30 year old resident of Kingston in Tasmania. According to her affidavit, she is employed as a team leader at Vodafone Pty Ltd Call Centre, Kingston and earns $41,340 per annum.

In 1996, the plaintiff was living with her partner in Sydney. In that city on 15 August 1996, she completed a proposal and lodged it with the defendant for a comprehensive insurance policy for her Mitsubishi Magna motor vehicle. The proposal was accepted by the defendant at its head office in Brisbane and the annual premium of $866.72 was paid.

The plaintiff deposed that some time during the evening of 18 - 19 July 1997 the vehicle was stolen from the Ryde Hospital parking lot in Ryde, New South Wales. The plaintiff reported the theft to the New South Wales police and lodged a claim with the defendant on 19 July 1997.

The defendant rejected the claim. The plaintiff disputed the rejection. This dispute was referred to the defendant's "internal dispute resolution…

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 Benson v Suncorp Metway Insurance Ltd

Details

AGLC: Benson v Suncorp Metway Insurance Ltd [2000] TASSC 78
Case: [2000] TASSC 78
Decision Date: 28 June 2000

CaseChat Overview and Summary

Benson v Suncorp Metway Insurance Ltd is a case involving a dispute over an insurance contract claim. Sarah Elizabeth Benson, a resident of Tasmania, filed a lawsuit against Suncorp Metway Insurance Ltd, an insurance company registered in Queensland, for damages resulting from the alleged breach of a contract of insurance. The insurance company sought to transfer the proceedings to the Supreme Court of Queensland under the Jurisdiction of Courts (Cross-Vesting) Act 1987.

The primary legal issue in this case was whether it was in the interests of justice to transfer the proceedings from the Supreme Court of Tasmania to the Supreme Court of Queensland. The court considered various factors, including the relative cost and convenience of the proceedings, the location of the witnesses, and the likelihood of evidence being presented via video link.

The court ultimately decided not to transfer the proceedings to Queensland, finding that the cost and inconvenience to the plaintiff would outweigh any benefits to the defendant. The court also noted that the evidence presented by the defendant was not adequately disclosed, making it difficult to assess the necessity of witness attendance. The court directed that the action be subject to the rules for small claims and scheduled a directions hearing to address the pleadings and pre-trial orders.

In conclusion, the Supreme Court of Tasmania dismissed the defendant's application to transfer the proceedings to Queensland. The court found that it was not in the interests of justice to transfer the case, considering the costs and inconvenience to the plaintiff, the lack of disclosure by the defendant, and the potential for evidence to be presented via video link.

Orders