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

1. 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.

1. 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.

1. 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. 

1. 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. 

1. The defendant rejected the claim.  The plaintiff disputed the rejection.  This dispute was referred to the defendant's "internal dispute resolution process".  The rejection was maintained.  The plaintiff referred the matter to the General Insurance Claims Review Panel in Victoria.  Counsel were unable to assist with respect to the authority, status and nature of this panel. 

1. In a long letter dated 29 May 1998, addressed to the plaintiff in New South Wales, the panel explained what steps it had taken and reported:

"… that there are substantial issues of fact in dispute which, given the procedures available to me, I am not able to resolve.  I am therefore unable to grant the relief requested by the claimant."

1. It is clear from that report and from an affidavit by the defendant's claims service consultant, Mr Cameron, that the defendant asserts that the plaintiff's claim is fraudulent.  The Review Panel's report states that the police recovered the vehicle at 10.50pm on 18 July 1997, and that it had been totally destroyed by fire. 

1. As to the nature of the alleged fraud, the defendant has declined to make any disclosure to this Court in the three affidavits filed in support of this application.  The only hint of the nature of the defendant's allegation appears from this sentence in the Review Panel's report:

"The insurer has obtained information from the police and other sources which indicate the claimant and her de facto were involved in the theft of the vehicle."

1. In his second affidavit sworn on 19 April 2000, Mr Cameron deposed:

"3   It is the intention of Suncorp Metway to issue subpoenas ad testificandum to the following witnesses:

·New South Wales investigating police officers.

·Suncorp's insurance investigator from NSW.

4    In addition to myself it would be necessary to call to give personal evidence, Mr Peter Eaton (Motor Manager) and Mr Glynn Findlay (Major Loss Specialist) due to their involvement in the claim and the subsequent investigations."

1. The nature of any of that evidence is unknown.  Insofar as it is proposed to adduce evidence from the defendant's records, such evidence is likely to be admitted by consent at the hearing, having regard to the provisions of the Evidence Act 1910, s40A.  The plaintiff deposed that she has been interviewed by New South Wales police officers and by the defendant's investigator.  She said that she has not been charged with any offence.  Absent disclosure by the defendant and bearing in mind the hearsay rule, and presumably, the fact that the plaintiff has made no relevant admissions, it is difficult to see what evidence the police and investigators can give other than a description of the place from which the car is alleged to have been taken, its subsequent finding, and of any forensic material detected in the wreck.

1. It is conceded that this Court has jurisdiction to determine the claim.  See McEntee v Connor (1994) 4 Tas R 18. It is a small claim involving a little over $20,000. For the defendant it is submitted that:

·   the contract of insurance was made in Queensland;

·   the alleged breach occurred in Queensland;

·   the defendant is a company incorporated in Queensland;

·   the only connection between this Court and the claim arises out of the fact that the plaintiff now resides within the jurisdiction of this Court;

·   if there is a trial, all the defendant's witnesses will have to travel interstate at great expense.

1. The plaintiff deposed that she moved from New South Wales to Tasmania on 30 March 1999 and is now a permanent resident in this State.  This move was made almost two years after the occurrence of the relevant event and it is not suggested that the move was for other than bona fide reasons unconnected with this matter.

1. Whilst the points made on behalf of the defendant in support of the application are valid, they are off-set by the facts that:

·   the defendant is a very large company carrying on business, both inside and outside Queensland;

·   as this case illustrates, the defendant is prepared to write insurance business outside the State of Queensland and accordingly, it must have anticipated having to deal with disputed claims lodged from outside Queensland and with respect to events that arose outside that State;

·   there was affidavit evidence that the defendant has an entry in the Tasmanian telephone directory, but no evidence that it actually does business in this State.

1. Neither party carries an onus of proof on this application.  See McEntee v Connor (supra); Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Anagnostis & Anor v Davies Brothers Ltd (1989) 99 FLR 196; Drive-In Nominees Pty Ltd & Ors v Farrow Mortgage Services Pty Ltd A19/1993.  The only question is whether it is in the interests of justice to transfer the proceedings to Queensland.

1. The expression "interests of justice" has a wide meaning.  In Trade Practices Commission v Collings Construction Co Pty Ltd & Ors (1995) 130 ALR 115, Wilcox J said, at 125:

"The meaning of the phrase 'the interests of justice' has been considered in a number of reported cases.  In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 the New South Wales Court of Appeal refused to apply forum non conveniens principles to the phrase and held, in the words of Street CJ at 714, that the phrase required the court to make a 'management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute'. In Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394 I expressed the opinion that the phrase ought to be read widely so as to include 'adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date'.

Rogers J of the New South Wales Supreme Court, took a similar approach in Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 at 662. He described the task of the court, in determining whether or not it is 'in the interests of justice' to transfer a matter to another court, as 'a balancing exercise to determine the appropriate court.' He went on:

'... the task that falls to the Court, bearing in mind the undertaking offered in each action by the defendant, is to determine the balance of convenience in the way that objective was explained by Toohey J in Crouch v Commissioner for Railways (Qld) (1989) 63 ALJR 416 at 418-419; 85 ALR 347 at 350-351. As his Honour concluded (at 419; 351) where there is no difference in the applicable law: "The aim is, I think, to select the court which, in all the circumstances, will facilitate the course of litigation".'"

1. It has also been held that comparative cost is a matter to take into consideration when considering whether a transfer is in the interests of justice.  See Arrowcrest Group Pty Ltd & Anor v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57 at 62; Baffsky v John Fairfax & Sons Ltd unreported, Supreme Court ACT, Higgins J, 20 September 1990.

1. In the circumstances of this case, it does not appear to me to be in the interests of justice to transfer the proceeding to the Supreme Court of Queensland, from which court it is likely that the proceeding will be transferred to the District Court, for the following reasons:

·   The witnesses in New South Wales, presumably the principal witnesses, will have to travel interstate, whether the proceeding is transferred to Brisbane or not, and the cost differential between travelling from Sydney to Brisbane and from Sydney to Hobart, is insignificant.

·   The cost to the defendant of flying one or two of its officers to Hobart will be a tax deductible expense in the hands of the defendant, and an insignificant sum relevant to its gross profit which, according to its report, is to be measured in the many millions of dollars.

·   The cost to the plaintiff of flying from Hobart to Brisbane will not be tax deductible and will represent a significant sum relevant to her annual income.

·   In any event, in the absence of any disclosure, even in briefest outline, of the evidence that the defendant proposes to call, I am unpersuaded about the number of witnesses Mr Cameron asserts will be called to give evidence for the defendant.

·   Finally, I can see no reason why all the witnesses who live outside this State cannot give evidence by the use of a video link and document camera.  It is very common now for evidence to be taken by way of video link and to date, this has proved to be perfectly satisfactory.  The only witness in respect of whom a case could be mounted for requiring personal attendance for cross-examination is the plaintiff, as it is alleged that she is the one who committed a fraud.

1. The application is dismissed.

1. Having regard to the size of this claim and the unsatisfactory nature of the pleadings, I direct that the Rules of Court, Pt14, Div1, apply to this action.  There will be a directions hearing before the Master to get the pleadings in order and to make any necessary pre-trial orders to minimise the expense of getting this claim finalised.  Further, the Master will be able to make proper directions with respect to the taking of evidence by video link if necessary.