Brodie-Tucker v Hulme - [2007] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
BRODIE-TUCKER v HULME
[2007] SADC 108
Judgment of His Honour Chief Judge Worthington
24 October 2007
PROCEDURE - JUDGMENTS AND ORDERS
Appeal from a Master dismissing an application by the defendant for a stay of proceedings on the ground that the Supreme Court of the Northern Territory is the appropriate court of trial - test to be applied for an order under s20(3) of the Service and Execution of Process Act 1992 (Cwth) - onus on defendant not discharged - appeal dismissed.
Service and Execution of Process Act 1992 (Cwth) s20; Motor Accidents (Compensation) Act (NT), referred to.
St George Bank v McTaggart [2003] 2 Qd R 568; ACN 080 988 807 v KNEIPP (2002) 224 LSJS 86, applied.
Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 191 LSJS 469, discussed.

BRODIE-TUCKER v HULME
[2007] SADC 108

This is an appeal by the defendant, Sarah Brodie-Tucker, against the order of a Master dismissing her application for a stay of these proceedings in which the plaintiff/respondent, Tracey Hulme, claims damages for personal injuries. The stay is sought under s20 of the Service and Execution of Process Act 1992 (Cwth) (the Act) on the ground that the appropriate court to determine the matters in issue is the Supreme Court of the Northern Territory.
In her Statement of Claim the plaintiff alleges that while she was lying on the ground in the car park of Gecko Lodge, a backpackers lodge in Darwin, in the early morning of 13 March 2003, the defendant drove a four-wheel drive vehicle over her causing serious injury. The plaintiff is a resident of the United Kingdom and at the time she was travelling around Australia on a backpacking holiday. It is part of her case that she had been out drinking earlier with fellow travellers from the lodge, that at least one of her drinks had been spiked and that this was why she was lying on the ground in the car park. The action is framed in negligence and the particulars allege permanent physical and psychiatric/psychological disability resulting from the incident.
Both liability and quantum are in dispute. The defendant admits that she was the driver and that the motor vehicle struck the plaintiff, but denies that she was negligent. The defence also raises alternative pleas of volenti non fit injuria and contributory negligence, although I note that, as presently pleaded, the particulars of volens could support only a defence of contributory negligence. The defendant does not admit that the plaintiff sustained any injury, loss or damage but says that if she did, either there has been full recovery or, if there is any residual disability, it is inconsequential.
The plaintiff was taken by ambulance to Royal Darwin Hospital immediately after the incident, and on 17 March 2003, once her condition had been stabilised, she was transferred by plane to the Spinal Unit at the Royal Adelaide Hospital. She was treated there until discharge on 2 April 2003 when she was repatriated to the United Kingdom.
The defendant is a resident of Darwin. The four-wheel drive is registered in the Northern Territory and the driver is insured against any third party liability by the Territory Insurance Office (TIO) which administers claims under the Motor Accidents (Compensation) Act (NT), the legislation that governs the plaintiff’s claim for damages. TIO is a statutory body based in the Northern Territory and it does not have an office in South Australia.
While the plaintiff was in the Royal Adelaide Hospital she instructed Adelaide solicitors, Mellor Olsson, to act and the file principal is Ms Joanna Andrew. Mellor Olsson gave notice of claim to TIO in June 2003 and the current proceedings were issued on 25 January 2006. In the defence filed on 26 October 2006 the defendant protests the jurisdiction of this court and the application for a stay was filed on 9 November 2006.
The Master dismissed the application finding that the defendant “has not established a clear entitlement on the balance of probabilities that the Northern Territory Supreme Court is the appropriate court to hear and determine all matters in issue between the plaintiff and the defendant”. There are a number of grounds in the Notice of Appeal but in substance, the complaint is that the Master erred in the exercise of her discretion, having regard to the criteria set out in s20. By an amendment to the Notice of Appeal during submissions, the defendant also claims that the Master failed to give adequate reasons for her decision.
The scope of the defendant’s submissions widened considerably during the hearing of the appeal and it became necessary for further evidence to be put before me, some of it to clarify material that was before the Master. In the circumstances, therefore, it would be inappropriate to limit my consideration of the appeal to an analysis of the Master’s reasons, and the proper course is for me to consider the matter afresh and exercise the discretion under s20 accordingly.
As relevant, s20 of the Act provides:
Stay of proceedings
20    (1)     ……………………………………………
(2)     The person served may apply to the court of issue for an order staying the proceeding.
(3)     The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
(4)     The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
(a)the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
(b)     the place where the subject matter of the proceeding is situated; and
(c)the financial circumstances of the parties, so far as the court is aware of them; and
(d)any agreement between the parties about the court or place in which the proceeding should be instituted; and
(e)     the law that would be most appropriate to apply in the proceeding; and
(f)whether a related or similar proceeding has been commenced against the person served or another person;
but do not include the fact that the proceeding was commenced in the place of issue.
(5)The court’s order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense.
(6) – (10) - - - - - - - - - - - - - - - - - - - - - - -
It is clear that the matters set out in ss(4) are not exhaustive and there is nothing to prevent the court taking account of other relevant matters subject, of course, to the exception that the court may not take into account the fact that the proceedings have been commenced in this court. However, it has not been suggested that any matters beyond those set out in ss(4) arise for consideration and, therefore, the obligation on the defendant is to show on the balance of probabilities that, having regard to the criteria set out in ss(4), the Supreme Court of the Northern Territory is the appropriate court to try this action: St George Bank v McTaggart [2003] 2 Qd R568 per McPherson JA at 572. In my opinion the Master, in saying that the defendant “has not established a clear entitlement on the balance of probabilities”, was not imposing any higher burden than that. She was adopting the phrase used by Olsson J in Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 191 LSJS 469 in which he said at 474: “It is plain that the onus lies on an applicant seeking relief, either pursuant to section 20 or at common law, to establish a clear entitlement to it.” However, there is nothing in Cobby to suggest that his Honour was intending to impose any higher standard than the normal civil standard of proof on the balance of probabilities
The usual practice is for a court to consider an application for a stay in light of the circumstances as they are at the time of the application, and there is nothing in s20 to indicate that it should do otherwise. Indeed, the criteria set out in ss(4) tend to confirm that this is the correct approach – e.g., ss(4)(a) is clearly concerned with the current places of residence of the parties and potential witnesses; ss(4)(f) has regard to whether at the time of the application any related proceedings have already been commenced. There has been no material change in circumstances since the application was made in November 2006 or, for that matter, since objection was first taken when the defence was filed in October 2006.
I accept the submission by both parties that the relevant sub-sections are (4)(a), (b), (c) and (e), and that (4)(d) and (f) do not arise for consideration. Both liability and quantum are in issue and as there is a tension between them, I should outline the position with regard to each of them before dealing with the individual sub-sections.
LIABILITY
The case on liability will involve the plaintiff who resides in the United Kingdom and the defendant who is resident in Darwin. It appears that there was a man with the plaintiff when she was run over; he had accompanied her back to the lodge. His exact whereabouts are not known but there is a reasonable possibility that he may be living in Adelaide. At the least, it appears unlikely that he is resident in the Northern Territory.
Ambulance officers attended at the scene. It appears from the St John Ambulance report exhibited to an affidavit that two ambulance officers attended, Officer Minchin and Officer Trewin. The material before the court does not disclose whether they are resident in the Northern Territory but I will assume for present purposes that they are.
The incident was reported to the NT Police and it appears from the copy of a police report exhibited to an affidavit that an officer stationed at Nightcliff, Snr Constable Lovell, attended shortly after 6.00am. I will assume that he lives in Darwin.
An affidavit of William Oliver dated 18 July 2007 was admitted during the hearing of the appeal. Mr Oliver is a solicitor with Minter Ellison Lawyers in Darwin and he has conduct of the matter for the defendant. He informs the court that he has not yet obtained any statements from police or ambulance officers and is not yet in a position to advise whether they would be able to assist the court in identifying where the plaintiff was at the time of the collision. For present purposes, however, I will assume that they may be called.
In the material put before the Master, the defendant’s solicitors said that there are three other potential witnesses from Darwin that attended the scene after the accident. In a second affidavit dated 18 July 2007, Mr Oliver expands on that information and identifies them as Sarah Brown, James Picker and Vicki Bancroft. As at January 2007, when he took statements from them, Sarah Brown (who also observed the plaintiff earlier that night) and James Picker were living and working in Darwin. In March 2003, Vicki Bancroft was part-owner of Gecko Lodge and in January 2007 she was resident in Darwin. Mr Oliver also states that he has obtained a statement from James Bancroft, a part-owner of Gecko Lodge, and that he is potentially a fourth witness. For present purposes I will assume that all four of them are still in Darwin.
As mentioned earlier, it is alleged in the Statement of Claim that one or more of the plaintiff’s drinks were spiked. While she was partying, she is said to have been in the company of fellow travellers who were staying at the lodge. The allegation of drink spiking may involve additional witnesses. It is unclear who they may be, but if they were companions from the backpackers lodge and, like the plaintiff, were only temporarily in Darwin, the probabilities are that they are now living somewhere other than in Darwin.
It is submitted for the defendant that the court may be asked to conduct a view of the car park. Gecko Lodge is located in Mitchell Street which is in the CBD and not far from the Darwin courthouse.
The TIO is discharging a statutory function in managing the claim on behalf of the defendant and there is no reason why the court cannot take judicial notice of that. The relevant Claims Officer, Ms Renay Whinnen, a resident of Darwin, wishes to attend the hearing together with in-house counsel employed by the TIO. I am not in a position to comment on whether it would be necessary for both to attend, given that solicitors have been retained by the TIO, but it is reasonable to expect that a responsible officer of the TIO would be present in court to give instructions. I will assume that at least one representative of the TIO will be present during the trial.
QUANTUM
According to the Statement of Claim the plaintiff suffered serious spinal and pelvic injuries, soft tissue injuries and ligamentous damage. There are allegations of incontinence and neurological deficit as well as psychiatric/psychological sequelae. Ms Andrew has had conduct of the litigation since September 2003 and while she was in the United Kingdom in February 2005 on unrelated matters, she consulted with the plaintiff and obtained further instructions from her. Following that she made arrangements for the plaintiff to come to Adelaide in August 2006 for medico-legal reviews. Advance notice of that was given to TIO so that it could arrange for medical examinations/reviews while she was in Australia if that was desired. There was no request by the TIO for that to be done and the plaintiff had returned home by the time there was an objection to the forum.
It may be necessary for the plaintiff to call some evidence from Royal Darwin Hospital but there is no suggestion at present that this would be other than hospital notes and they could be produced on subpoena.
As things stand, the following nine expert witnesses, all of whom are resident in Adelaide, are likely to be called in relation to quantum:
Dr Bill Griggs – Trauma Specialist
Dr David Hall – Spinal Surgeon
Dr Paul Carney – Neurosurgeon
Mrs Anne Morgan – Occupational Therapist
Dr Adrian Winsor – Spinal Rehabilitation Consultant
Dr John Bastian – Rehabilitation Physician
Dr Kerry Pincombe – Psychiatrist
Ms Naomi Martin – Psychologist
Dr O. L. Osti - Orthopaedic and Spinal Surgeon
The defendant submits that for the purposes of s20, it is only Dr David Hall who should be taken into account as a witness resident in Adelaide because he was the treating surgeon and the others have only been retained for medico/legal purposes by Mellor Olsson. I do not accept that submission. There is nothing in s20 to support it and no other reason to differentiate between expert witnesses who were involved in the initial treatment of the plaintiff and experts who have become involved at a later stage. Dr Hall is a spinal surgeon. The Statement of Claim refers to injuries and disabilities beyond that field of expertise and the fact of the matter is that those said to be qualified to give evidence about these matters are resident in Adelaide. The plaintiff is entitled to require the court when considering this application to treat the calling of each expert witness as having equal merit.
SECTION 20(4)
I turn then to consider the matters raised in each of s20(4)(a), (b), (c) and (e) although inevitably there is some overlap. There is no dispute that both this court and the Supreme Court of the Northern Territory have jurisdiction to determine all matters in issue between the parties.
(4)(a) RESIDENCE OF THE PARTIES AND WITNESSES LIKELY TO BE CALLED
It is clear from what I have set out that the Supreme Court of the Northern Territory would not be an inappropriate court in which to conduct the case on liability. A significant number of witnesses on liability live there and if there were to be a view, it would be convenient for that. It would also be convenient for officers of the TIO attending the trial.
The plaintiff’s place of residence is neutral. She would have to travel whether the trial is heard in Adelaide or in Darwin.
In the course of submissions it was put by both counsel that video conference facilities would be available to take the evidence of witnesses who are at a location remote from whichever court is conducting the trial. That is true but it is of limited value. It cannot be assumed that the trial judge will necessarily agree that the evidence of a particular witness is suited to being given by video. Issues such as credibility, access to documents, the need for an expert witness to have access to a plaintiff, etc., can result in the refusal of a request for evidence to be given by video link.
One aspect of the case on liability that can be conducted only in Darwin is a view. For present purposes, that cannot be put as any more than a possibility. Unsurprisingly, the parties do not say whether it is likely. The locus is a car park, and it may be that photographs will give sufficient information about relevant features. To the extent that vegetation may be relevant one would expect that even now, some four and a half years after the accident, there has been a significant change, let alone how it will be by the time this matter goes to trial. However, for present purposes the possibility of a view must be put into the balance.
The defendant objects to hearsay material that was put before the Master by the plaintiff to demonstrate that she could not afford the cost that would be incurred if expert witnesses had to travel to Darwin. However, I need not deal with the objection as I do not propose to have regard to that evidence. The court is well aware from experience, and for present purposes can take note of the fact, that taking expert witnesses from Adelaide to Darwin is likely to involve greater expense than would be incurred if a similar number of lay witnesses were brought from Darwin to Adelaide. But that does not really assist either party because that cost, or the bulk of it, would ultimately be visited upon the unsuccessful party.
The most that can be said is that overall the litigation will include the cost of expert witnesses going from Adelaide to Darwin if the trial is held there, whereas it will include the cost of bringing the witnesses on liability from Darwin to Adelaide, and the cost of a view in Darwin, if the trial is held here. There are too many imponderables to enable a precise comparison to be made and the impugned evidence would only provide part of the equation.
In summary, when the combined ingredients of liability and quantum are considered, neither court can be said to be clearly inappropriate for the trial. There will be inconvenience and expense associated with each venue because of the residence of the parties and witnesses but it is not possible to say that one is better or worse than the other.
(4)(b) WHERE THE SUBJECT MATTER OF THE PROCEEDING IS SITUATED
It was submitted for the defendant that ss(4)(b) is relevant in that if the accident is regarded as the subject matter of the proceedings, the location is Darwin. It was submitted for the plaintiff that if she is the subject matter of the proceedings, she has no real connection with Darwin at all. In my opinion, the issues arising from those submissions are dealt with in the subject matter of ss(4)(a) and ss(4)(e), and ss(4)(b) does not arise for separate consideration.
(4)(c ) THE FINANCIAL CIRCUMSTANCES OF THE PARTIES
As far as the court is aware the plaintiff does not have access to a large sum of money and can be regarded as an ordinary litigant who may well be hoping to pay her legal costs by being successful in her action. The TIO is a statutory corporation with access to large funds but it has a public responsibility to avoid unnecessary expenditure, and for that it is ultimately answerable to the community of the Northern Territory.

I referred to comparative cost pressures when considering ss(4)(a). There is no need to repeat that except to say that the main burden will rest on whichever party the court determines is appropriate, based on the result and any steps the parties may take to protect themselves against orders for costs. In this action sub-section (4)(c) does not raise any matters beyond those already covered.
(4)(e) THE MOST APPROPRIATE LAW TO BE APPLIED
In general terms the law to be applied is the common law subject to some restrictions on entitlement by virtue of the Motor Accident (Compensation) Act (NT). While these limitations are not the same as those imposed by statute in relation to personal injury claims arising out of motor vehicle accidents in South Australia, the concept is not dissimilar, and there is no reason to think that competent counsel from South Australia or the Northern Territory would face any difficulty in presenting such a case or that a South Australian court would have difficulty in applying the relevant law. In my opinion this sub-section is of no moment.
CONCLUSION
The matters raised under any one part of sub-section (4) cannot be determinative. The court is required to exercise its discretion having regard to the combined effect of all relevant matters in the sub-section when considering whether the defendant has discharged its burden of showing on the balance of probabilities that the Supreme Court of the Northern Territory is the appropriate court.
I must not take into account the fact that proceedings have been commenced in this court but that does not affect the need for me to balance the considerations relevant to each court as the venue for the trial, given that neither can be said to be inappropriate. In that sense therefore, although the issue is whether or not the Supreme Court of the Northern Territory has been shown to be the “appropriate court”, to some extent the exercise involves considering whether the defendant has shown on the balance of probabilities that this would be the more appropriate court. I respectfully adopt what was said by Judge Muecke in ACN 080 988 807 v Kneipp (2002) 224 LSJS 86 at 88 in dealing with criticism of a Master using the expression “more appropriate court” when granting a stay pursuant to s20(3):
I do not consider that the Master’s use of the phrase ‘more appropriate court’ did other than reflect the manner in which the application was argued before him and how the parties couched the affidavit material they put before him on the application. - - - - - - - - - - - - - - - - - - - In most cases the issue will be whether a court of another State is the ‘more’ appropriate court to determine the issues than the court in which proceedings have been issued. This will all the more be the case where it cannot be said that the court of issue is an inappropriate court to determine the matters in issue. The very matters set out in sub-section (4) lead to such an approach. This court must exercise its discretion to make an order pursuant to section 20(3) of the Service and Execution of Process Act by a consideration of and a balancing of the matters set out in sub-section (4), particularly where there are competing considerations in respect to some of those matters as to courts in two different States.
Although it is the combined effect of all the relevant matters arising under sub-section (4) that must be considered, the principal matters here arise under sub-section (4)(a). The most that can be said for the defendant is that it has been shown that the question of which court is more appropriate is finely balanced. Therefore, the defendant has not discharged the onus of showing on the balance of probabilities pursuant to s20(3) that the Supreme Court of the Northern Territory is the appropriate court to determine all the matters in issue.
It follows that I would make the same order as the Master and dismiss the application for a stay.
For these reasons the appeal must be dismissed.