Brooks v State of New South Wales

[2003] VSC 9

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7694 of 2000

SHARON BROOKS	Plaintiff
v
STATE OF NEW SOUTH WALES	Defendant

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2003
DATE OF JUDGMENT:	5 February 2003
CASE MAY BE CITED AS:	Brooks v State of New South Wales
MEDIUM NEUTRAL CITATION:	[2003] VSC 9

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Practice and procedure – application to cross-vest proceeding in Supreme Court of New South Wales – plaintiff a ward of State in NSW subjected to alleged physical abuse – alleged continuing psychological injury – plaintiff resident in Victoria now for many years – much treatment in Victoria – prospect of need for treatment during trial – many witnesses resident in Victoria and NSW – claim brought through litigation guardian – costs implications – third party resident in Victoria – claim for exemplary damages – alleged desirability of litigating such a claim in the State against which claim made – delay in making application – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant-Defendant	Mr T. Hurley	Victorian Government Solicitor
For the Plaintiff	Mr A. Ingram	Clark & Toop

HIS HONOUR:

1. The defendant applies by summons filed 11 December 2002 for the transfer of this proceeding to the Supreme Court of New South Wales pursuant to s. 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987.  The question is whether it appears to this court that it is in the interests of justice that the proceeding be determined by the Supreme Court of New South Wales. 

1. There has been debate in the cases whether the applicant in a case such as this carries a formal onus.  This is not the occasion to revisit that issue.  The applicant carries, on any view, a burden of persuading me, having regard to the substance of the matter, that an order should be made.  A practical common-sense approach ought be taken. 

1. The legislation itself does not provide any list of criteria.  Some have been developed in the cases.  It is obviously significant where the cause of action arose.  It has been said that where the cause of action arises in a particular jurisdiction and the plaintiff also resides in that jurisdiction, those matters in combination are a pointer that the matter ought to be heard in that jurisdiction and not elsewhere.  But that is not this case. 

1. The plaintiff alleges that as a child she was in the care of New South Wales authorities and that in the mid-1980s she was sexually abused, particularly by her father, was impregnated by him and bore his child.  She claims to be seriously and psychologically scarred in consequence. 

1. The wardship and the alleged abuse occurred in New South Wales.  The defendant intends to call a number of witnesses then and now resident in New South Wales, and some persons then resident in New South Wales but now resident in Queensland. 

1. The plaintiff has resided in Victoria since about 1985.  She has had a great deal of medical treatment in Victoria.  She intends to call a large number of treating doctors and professionals in allied health services to give evidence on her behalf.  They, plainly enough, reside in Victoria.  There is evidence that she is a person with a disability and for that reason she sues by a litigation guardian.  He lives in Victoria.  The defendant joined a third party, that is, the plaintiff’s father.  He resides in Victoria. 

1. The proceeding itself was commenced by writ filed in November 2000.  All the interlocutory steps have been completed.  The matter went to mediation.  The mediation failed.  It seems that the matter is listed later this month to be fixed for trial. 

1. It was only after the mediation failed, as I understand it, that the present application was instituted.  This was some two years after the inception of the litigation and, as I say, at the end of a protracted interlocutory course. 

1. There is evidence in the form of reports by Dr Epstein and Dr Keddie, the latter of whom is a treating doctor and the former of whom has examined the plaintiff for medico-legal purposes, that the trial is likely to be a substantial trauma to the plaintiff and that it may cause her to need medical support.  Each of the doctors has expressed concern that, if the trial were held outside Victoria, ready access to the medical support which might be necessary would be, obviously enough, the more difficult. 

1. Mr Hurley of counsel, for the applicant-defendant, raised three matters in support of the application.  He laid particular emphasis upon the fact that the plaintiff claims exemplary damages.  It was his submission that it would be unsatisfactory for a Victorian jury to pass upon the conduct of the State of New South Wales and various of its officials in the particular context of exemplary damages.  I understood him to argue that an analysis of the conduct of a State and its officials should best or properly be undertaken by residents of that State. 

1. Mr Hurley also adverted to the fact that, as it appears, a number of the defendant’s prospective witnesses are presently officials, one being a magistrate, of the State of New South Wales.  I understood him to submit that it was unsatisfactory that residents of this State should pass upon the blameworthiness of conduct, particularly in the context of exemplary damages, of the officials of another State. 

1. The third matter that Mr Hurley raised was the disposition of witnesses generally.  He argued that the situation was really one in which the relative convenience and inconvenience for witnesses from different States would cancel out.

1. A number of features of this matter that have led me to the clear conclusion that an order such as the defendant seeks should not be made.  I do not put them in order of significance, but they are as follows.

1. First, this application is late made.  It has the appearance of an application made not only late but after attempts at settlement had failed, something almost as an afterthought or, less charitably, something designed to get the plaintiff back to the bargaining table. 

1. Second, the matter is likely to get on quite quickly in this State, and I should have thought the quicker it can be got on the better, having regard to the nature of the matter, and notwithstanding the period that has already elapsed since the events which gave rise to the proceeding occurred. 

1. Third, I think it is of significance that the plaintiff proceeds by a litigation guardian, who committed himself to a potential costs burden in the context of a proceeding brought in this State.  If the proceeding were transferred to the Supreme Court of New South Wales there must be additional costs in the event that the plaintiff failed.  It does not seem to me right that the litigation guardian should, at a late stage, be obliged to face up to a potentially increased costs burden.  It might have been different if the application had been made at the outset of the proceeding.

1. Fourth, it seems to me that there is a great deal of local evidence in this case, traversing many years of medical and the like treatment of the plaintiff.  One cannot simply set a number of witnesses up against another number of witnesses and say that there is a draw.  The plaintiff has required, as I have mentioned several times, a great deal of medical and like treatment since 1985, and that will be documented at trial by witnesses resident in this State.

1. Fifth, the plaintiff is resident in this State, as is the third party. 

1. Sixth, and importantly, the opinions of Drs Epstein and Keddie to which I earlier referred are a significant reason why the trial ought be conducted in this State. 

1. As to the arguments particularly raised by Mr Hurley, I am not persuaded that it would be a disadvantage to New South Wales officials who are accused of having behaved negligently, and perhaps worse, to have their conduct assessed by a jury not resident in their own State. 

1. Then there is the matter of exemplary damages.  It is not clear to me that Mr Hurley’s argument was a sound one.  It really seemed to amount to saying that the persons best fitted to assign or deny fault on the part of a State and its officials are residents within the particular State.  Why should that be so, at least in the context of this case?  It is case is concerned with child abuse.  I should have thought that the practical content of any duty of care to be demanded of public officials concerning child abuse could have been no different in the mid-1980s in New South Wales or Victoria.  I find it difficult to see why the perception of the residents of one State or another as to what was negligent conduct, or worse, should be any different by the standards of those times.

1. In all, as I said a little earlier, it seems to me that there is an entirely convincing case for not transferring this proceeding to the Supreme Court of New South Wales.  I dismiss the application.

1. As to costs, I know that on some occasions in the past Beach, J. reserved the costs in applications such as this that were unsuccessful.  I know that other judges have awarded costs against the unsuccessful applicant:  see, for example, Gillard, J., in McKee v. Van Haften [2001] VSC 251. It all depends, I think, upon the circumstances of the particular case. In my opinion the proper outcome here is that the application should be dismissed with costs.