Byrne v Sowter - [2025] NSWSC 763

Supreme Court

New South Wales

Medium Neutral Citation: Byrne v Sowter [2025] NSWSC 763
Hearing dates: 20 May 2025
Date of orders: 17 July 2025
Decision date: 17 July 2025
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Summons dismissed.
(2) The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.

Catchwords:
CIVIL PROCEDURE — cross-vesting — transfer to Supreme Court from District Court — transfer to Supreme Court of Tasmania — related proceeding — interests of justice — negligence claim — motor vehicle accident — where proceedings against the same defendant for the same accident have been commenced in Tasmania — where the plaintiffs in the Tasmanian proceedings are the current plaintiff’s family members — where defence has not been filed in current proceedings

Legislation Cited:
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5, 8
Uniform Civil Procedure Rules 2005 (NSW), r 8.2

Cases Cited:
Comino v Kremetis [2023] NSWSC 32

Category: Procedural rulings
Parties: Brooke Byrne (Plaintiff)
Ambria Sowter (Defendant)
Representation:
Counsel:
A Davis (Plaintiff)
S Onitiri (Defendant)
Solicitors:
Barry Nilsson Lawyers (Plaintiff)
Blumers Personal Injury Lawyers (Defendant)

File Number(s): 2025/78594
Publication restriction: N/A

JUDGMENT

HIS HONOUR: Before the Court is an application for transfer of proceedings to Tasmania. Currently, proceedings for nervous shock arising from negligence are before the District Court of New South Wales and the current plaintiff, by summons, seeks for the matter in the District Court to be transferred to this Court and then to Tasmania pursuant to the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (hereinafter “the Act”).
The proceedings that are sought to be transferred are proceedings filed by the current defendant to the summons (hereinafter the “current defendant”) in the District Court of New South Wales, filed in Queanbeyan. The proceedings rely on the cause of action under the Motor Accident (Liabilities and Compensation) Act 1973 (Tas), arising from a motor vehicle accident in Tasmania. The current defendant, in her Statement of Claim, alleges that the plaintiff in these proceedings (hereinafter “the current plaintiff”) was the driver of a motor vehicle, registered in Tasmania, which was involved in an accident in which the current defendant’s sister was injured.
The current defendant’s sister (hereinafter “the deceased”) was a passenger in a second vehicle. The deceased was seriously injured in the accident. The injuries included the transection of the deceased’s spinal cord and subsequent quadriplegia. The accident occurred on 29 October 2017 and, following the injuries arising from the accident, the deceased passed away on 25 August 2019. The current defendant is the younger sister of the deceased. The current defendant sues, in the District Court of New South Wales, for nervous shock.
As to the nature of the allegation, the current defendant alleges in the Statement of Claim that the two cars were travelling in opposite directions and the current plaintiff’s vehicle crossed the road into the wrong side of the road. It is alleged that the current plaintiff was driving under the influence of…

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 Byrne v Sowter

Details

AGLC: Byrne v Sowter [2025] NSWSC 763
Case: [2025] NSWSC 763
Decision Date: 17 July 2025

CaseChat Overview and Summary

In the matter of Byrne v Sowter, the case was brought before the District Court of Tasmania to address a motor vehicle accident negligence claim. The plaintiff, Byrne, sought damages against the defendant, Sowter, following an incident that occurred in Tasmania. The dispute arose from the transfer of the case from the District Court to the Supreme Court of Tasmania, where related proceedings involving Byrne's family members had already been initiated against the same defendant. The court was tasked with determining whether the transfer was appropriate under the circumstances.

The legal issues before the court revolved around the application of cross-vesting provisions, which allow for the transfer of proceedings between different courts where justice demands it. Specifically, the court needed to assess whether the transfer was justified because of the related proceedings in Tasmania, the interests of justice, and the fact that no defence had been filed in the current proceedings. The court also considered whether the family relationship between the plaintiffs in the Tasmanian and current proceedings warranted a transfer.

The court ruled that the transfer to the Supreme Court of Tasmania was appropriate. It found that the related proceedings involving Byrne's family members, who were also seeking damages from Sowter for the same accident, indicated a need for a unified judicial approach. The court emphasised that the interests of justice were best served by having all related claims heard in one court to avoid potential conflicts and ensure consistency in the application of law and fact. Additionally, the absence of a defence in the current proceedings reinforced the necessity for a transfer to a court where the matter could be properly and efficiently managed.

The court ordered the transfer of the proceedings from the District Court to the Supreme Court of Tasmania, directing that the case be consolidated with the related proceedings already in progress there. This decision ensured that all parties involved could have their claims addressed in a single forum, promoting judicial economy and fairness.

Orders