Carslake v Gadens Lawyers - [2006] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CARSLAKE v GADENS LAWYERS
Reasons for Ruling of The Honourable Justice Debelle
18 January 2006
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION
Cross-vesting - application by defendant to transfer proceedings to Supreme Court of Queensland – relevant factors – plaintiff severely disabled – plaintiff unlikely to be able to prosecute action if transferred – held, retaining action within South Australia better serves interests of justice – application dismissed.
Guardianship and Administration Act 1999 s 35; Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5, referred to.
Bankinvest AG v Seabrook (1988) 14 NSWLR 711; BHP Billiton v Schultz [2004] HCA 16; Bourke v State Bank of New South Wales (1988) 22 FCR 378; Dawson v Baker (1994) 120 ACTR 11; James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 377; John Pfeiffer v Rogerson (2000) 203 CLR 503; Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, considered.

CARSLAKE v GADENS LAWYERS
[2006] SASC 9
Civil: Application

DEBELLE J. The defendant, Gadens Lawyers, has applied to have this action transferred to the Supreme Court of Queensland. The application is made pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act1987 of this State.
S 5(2) of the Act provides:
(2)     Where –
(a)     a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and
(b)(i)    it appears to the first court that the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(ii)it appears to the first court that having regard to –
(A)whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and
(B)the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in subsubparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C)the interests of justice,
it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(iii)it appears to the first court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,
the first court shall transfer the relevant proceeding to that other Supreme Court.
Gadens ground its application on s 5(2)(b)(iii), that is to say, it contends that it is in the interest of justice that the action be transferred to the Supreme Court of Queensland.
The issue for determination is, having regard to the interests of justice, what is the more appropriate forum for the hearing of this action: see BHP Billiton v Schultz [2004] HCA 61. It is not necessary that the transferor court be a clearly inappropriate forum. The issue is simply what is the more appropriate forum.
In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Rogers AJA applied the reasoning of Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and identified the task as being to determine what court is the natural forum, that is to say, the forum with which the action has the most real and substantial connection. Lord Goff continued:
So it is for connecting factors in this sense that the court must look; and these will include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business.
The principles in Bankinvest have been consistently applied since: see Mason P in James Hardie and Co Pty Ltd v Barry (2000) 50 NSWLR 377 - 378 and the cases and other references cited in those reasons. As I understand them, the reasons of the High Court in BHP Billiton v Schultz confirmed this approach.
The factors to which regard should be had are set out in decisions such as James Hardie and Dawson v Baker (1994) 120 ACTR 11. I have regard to all of those factors. Plainly, the relevant factors will vary from case to case, as will the weight to be attached to those individual factors.
The overriding criterion is the interests of justice, an expression which is to be interpreted broadly and which requires the court to have regard to a wide range of considerations. In this respect, I refer to the observations of Wilcox J in Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394.
I briefly recite the facts leading to this action and to this application.
On 24 January 1992, the plaintiff was staying with members of her family in a house at North Maclean in Queensland. The house was occupied by her daughter who was renting the house from its owner, Mr McCormack. On 24 June, the plaintiff fell over in that house and sustained severe head and other injuries.
Gadens is a firm of legal practitioners practising in Brisbane. The plaintiff instructed Gadens to act for her in respect of a claim for damages for the injuries sustained in the fall. On 9 January 1995, Gadens issued the proceedings. However, it did not arrange for the writ to be served within the period prescribed by the Rules of the Supreme Court of Queensland. On 29 January 1996, Gadens filed an application in the Supreme Court of Queensland to renew the writ. The plaintiff alleges that the application was filed out of time and that Gadens, in breach of its duty to her, encouraged her not to renew the writ and discontinue the claim for damages. The plaintiff alleges that Gadens had a manifest conflict of duty and interest and that it failed in its duty of care to her.
The allegations clearly relate to matters which occurred in Queensland and in Brisbane. The issues in the action against Gadens will also require an examination of the merits of the plaintiff’s initial action and, in particular, whether the acts or omissions of Gadens caused the plaintiff to lose the chance to pursue a successful action.
In support of its application, Gadens relies on a number of factors. They are the fact that, as this action has been issued more than six years after the alleged negligence, it will be necessary to apply for an extension of time within which to institute the action.
It was not clear from the statement of claim whether the plaintiff brings this action in contract or in negligence. Both causes of action are plainly available. If the cause of action is in negligence the State of Queensland is the place where the negligence was committed. In other words, Queensland is the lex loci delicti, and the question of any extension of time within which to bring the action will have to be determined according to the provisions of the Limitations of Actions Act 1994 of Queensland and John Pfeiffer v Rogerson (2000) 203 CLR 503. The terms of the Limitation of Actions Act (Qld) differ from the terms of the Limitation of Actions Act in this State. Gadens assert that that points to the desirability of the action being heard and determined in Queensland.
In addition, Gadens point to the fact that the question whether the writ should have been renewed, that is to say, whether the application for renewal should have been pressed, will have to be determined according to the terms of the Rules of the Supreme Court of Queensland as they existed at the time when the application should have been made. Those rules differ from the rules now in existence.
The application will require the exercise of discretion. Gadens assert that this too is a further reason why it is preferable for a judge of the Supreme Court of Queensland to hear and determine the matter rather than a judge of this Court.
Gadens also relies on the fact that there will be a number of witnesses in Queensland. It asserts that it will be necessary for an expert to be instructed to examine the state of the stairs down which the plaintiff fell and to report upon the question whether those stairs comply with relevant building codes or standards.
As I understand the submissions made by Mr Bryant on behalf of Gadens it is not asserted that any cost or inconvenience caused to witnesses, in particular the solicitor in Gadens who was handling the matter, in coming to Adelaide is a relevant factor. Nevertheless, it is relevant to have regard to the fact that, if this action is prosecuted in this State, there will be an obvious cost and inconvenience to Gadens in bringing at least two, and possibly more, witnesses to Adelaide. The number of those witnesses has not been precisely identified other than the expert to whom reference has already been made, and the solicitor who shall be handling the matter in Gadens. Those then are the factors upon which Gadens relies.
It appears that the plaintiff suffered permanent brain damage in consequence of the injuries she received from the fall. She has experienced continuing neuro-behavioural difficulties which require a supportive and understanding network of family and friends to assist her. She requires assistance with ordinary day-to-day tasks such as budgeting and personal finances. She requires regular mental health counselling. Her prognosis for unsupervised and independent living is poor. She suffers from depression from time to time and short-term memory loss. She is separated from her husband who resides in Adelaide.
The plaintiff herself resides in Barmera. She depends on support of family and friends who reside in or on near Barmera. They include her cousin, Ms Scarlett, and her daughter who has now returned to South Australia. Although the plaintiff lives independently she resides close to those relatives who provide frequent advice and assistance, as well as support when the plaintiff becomes distressed when handling more complex matters, including giving instructions in relation to these proceedings.
The plaintiff’s solicitor believes that the plaintiff will have difficulty in giving instructions in relation to this claim and that, in view of her mental incapacity, it will be necessary to apply for an order under s 35 of the Guardianship and Administration Act 1999 to appoint an administrator for the purpose of giving instructions in relation to the prosecution of this action. The plaintiff has indicated she will consent to an administration order under s 35. The application under s 35 is in the course of preparation.
The plaintiff’s only source of income is a disability pension of approximately $200 per week. If the plaintiff had to go to Brisbane to prosecute any aspect of this claim, she would require both family support and significant financial support. There is uncontested evidence that the cost of air fares from Adelaide to Brisbane on Qantas ranges from $167 to $457 for a one‑way trip and on Virgin Blue from $129 to $409. The cost of flying to Brisbane would obviously constitute a major financial burden for the plaintiff. In addition, she would have to find funds to pay for accommodation whilst staying in Brisbane. It is unrealistic for her to travel from Barmera to Adelaide, and thence from Adelaide to Brisbane, to prosecute the claim in Brisbane. As I said, she will require both family support as well as significant financial support to do so.
Gadens is a well-established law firm. It is able to afford the cost of travel to Adelaide for any witnesses and, inconvenience aside, there is no barrier to any representative of the firm in coming to Adelaide from time to time to prosecute the action.
Mr Bryant candidly did not press any argument in relation to the cost and inconvenience of those witnesses coming to Adelaide.
The plaintiff’s witnesses who will give evidence concerning her fall all reside in South Australia. Many of them reside in the Riverland.
It will be necessary to prove the plaintiff’s injuries and the medical treatment which the plaintiff received in Brisbane. Gadens has not suggested, at least so far, that there is a dispute as to what is contained in the medical records in Brisbane. The plaintiff’s present medical advisors reside in South Australia.
The contentions of Gadens boil down to the fact that all of the events leading to and surrounding the plaintiff’s claim occurred in Queensland, that a number of witnesses reside in Queensland, and that two important questions of law turn on Queensland legislation or rules of court. These are plainly important and relevant factors. They will often be decisive factors. However, it is necessary to have regard to all relevant factors.
From the point of view of the cost and inconvenience of witnesses there will be plainly a cost and inconvenience to the defendant’s witnesses if the action is prosecuted in this Court. Equally, there will be costs and inconvenience to the plaintiff’s witnesses if the action is prosecuted in the Supreme Court of Queensland. It is not possible to make an accurate comparison of the relative costs and inconvenience. Broadly speaking, it is the case of one party’s advantage being another party’s disadvantage. In my view the respective costs and inconvenience cancel one another out or, if they do not, there is not such a difference to require the conclusion that the Supreme Court of Queensland is the more appropriate forum.
Although the events leading to the plaintiff’s claim occurred in Queensland, that does not in my view necessarily require that the application be transferred. I immediately acknowledge that it is an important factor and suggests a close connection to the Supreme Court of Queensland. But it is one factor to be weighed with all others.
The remaining consideration is the fact that there are issues which must be addressed by reference to Queensland legislation and rules of court. This too is an important factor but must be balanced with the fact that a judge of this Court is, I think, as able as a judge of the Supreme Court of Queensland to decide the issues under the Limitations of Actions Act of Queensland and under the rules of the Supreme Court of Queensland. This is not an exercise in jingoism on behalf of this Court nor is it intended to suggest any lack of comity with the Supreme Court of Queensland. Instead, it is an indication of the weight which should be attached to this factor.
When regard is had to the interests of justice, I think the most weighty and compelling factor is that the plaintiff suffers from a mental disability which will severely handicap her ability to prosecute this action if it is transferred to another State. While it is true, as Mr Bryant submitted, that the defendants might have to bear the costs of transporting the plaintiff to Brisbane for any medical assessment, that consideration must be weighed against the fact that Gadens can equally instruct a medical practitioner in this State to examine the plaintiff.
If the action is transferred to the Supreme Court of Queensland, there may well be occasions which require the plaintiff to travel to Queensland. Plainly, she does not have the financial resources to do this at her own expense. More significantly, and the fact to which I give the greatest weight, is that she could not do so without the support of at least a close friend or member of her family on whom she relies and who could assist her.
If the action is transferred there is, I think, a real likelihood that the plaintiff would not be in a position to prosecute the action. She would be compelled to discontinue the action. That would plainly be contrary to the interests of justice.
The weight to be given to those factors outweighs the other factors to which I have referred and upon which Mr Bryant, on behalf of Gadens, has relied. It requires the conclusion that this Court is the more appropriate forum.
This is, I think, an unusual case. If it were not for the factors personal to the plaintiff it might have been appropriate to transfer the action to the Supreme Court of Queensland.
For all of these reasons the application is dismissed.