Crouch v Commissioner for Railways (Qld)

[1989] HCA 25

HIGH COURT OF AUSTRALIA

Toohey J.

DAVID STANLEY CROUCH v. THE COMMISSIONER FOR RAILWAYS (QUEENSLAND)

9 May 1989

Decision

TOOHEY J. The Court has before it two remitter applications, one by the plaintiff seeking remittal to the District Court of Western Australia and the other by the defendant seeking remittal to the Supreme Court of Queensland at Cairns.

2. The plaintiff was employed by the defendant and claims to have been injured on 6 May 1980 as a result of the defendant's negligence or breach of their contract of employment. A writ was issued out of this Court in its Western Australia registry on 2 October 1984. There have been earlier proceedings in this Court - see Crouch v. Commissioner for Railways (Q.) (1985) 159 CLR 22 - but it is disturbing that the action has not progressed further than it has after such a long time. Indeed, no defence has yet been filed by the defendant. The absence of pleadings and interlocutory steps to clarify issues makes the more difficult a decision as to the court to which the action should be remitted. Such a decision involves speculation that ought not to be necessary. So much so, it is tempting to adjourn both applications until the issues have emerged with greater clarity. But this is not what the parties seek and, given the long time that has elapsed, no obstacle should be put in the way of the action proceeding to trial.

3. Both liability and damage are in issue and, for reasons that I shall explain, the latter impinges on the former. The statement of claim pleads that on 6 May 1980 at Babinda in Queensland the plaintiff and another member of the railway gang on which he was working were instructed by a leading hand to lift a number of railway sleepers onto a railway cart. In the course of carrying out that task, it is said, the plaintiff injured his back severely. The statement of claim does not plead the time at which the accident occurred. Workers' compensation documents filed by the defendant show that the plaintiff claims to have suffered an injury on 6 May 1980 at about 7.05 a.m. while "lifting flat top on to a line". It is apparent that a flat top is the same as a railway cart and that the line referred to is a railway line. The plaintiff does not dispute making the workers' compensation claim but says that this accident is not the one upon which he has sued the defendant. On the material presently available, it is not possible to express any useful view on this aspect except to make the obvious comment that the coincidence is a remarkable one, especially as in an affidavit filed in support of his remitter application the plaintiff deposes to attending Dr. Merlo at about 9 a.m. on 6 May. The accident report form completed by the plaintiff for workers' compensation purposes and dated 6 May 1980 records that the plaintiff was attended by Dr. Merlo. It also shows that the plaintiff ceased work at 7.05 a.m. as a result of that accident.

4. My purpose in referring to the two accidents in some detail is not to cast doubt upon the plaintiff's claim but to show that Dr. Merlo, who still practises at Babinda, may well be a material witness on the issue of liability as well as that of damage. Likewise, those who were in the plaintiff's gang on the morning of 6 May 1980 are likely to be material witnesses, even if it is only to give evidence in relation to the accident which was made the subject of the workers' compensation claim. Obviously, the circumstances of the workers' compensation accident are relevant to the plaintiff's claim.

5. It is against this background that these applications are to be determined. The parties accept that the District Court of Western Australia and the Supreme Court of Queensland are each a court having "jurisdiction with respect to the subject-matter and the parties" and therefore a court to which the matter may be remitted pursuant to s.44(1) of the Judiciary Act 1903 (Cth): see Johnstone v. The Commonwealth (1979) 143 CLR 398. It is also common ground that the law to be applied in each of those courts is materially the same. No statutes are involved and the plaintiff's claim is to be decided according to the common law. The defendant has stated that, if the matter is remitted to Queensland, it will not seek to take advantage of any limitation period that may be available in that State.

6. The plaintiff invited the Court to resolve the matter by reference to the balance of convenience, citing Weber v. Aidone (1981) 55 ALJR 657; 36 ALR 345. That approach has been adopted where there is no material difference in the laws of the States concerned: Mason J. in Pozniak v. Smith (1982) 151 CLR 38, at pp 47-48. The defendant did not dissent from this approach except to say that the fact that any tort or breach of contract was committed in Queensland was an important consideration. The phrase "balance of convenience" is a somewhat elusive one, inviting a question at the outset as to whose convenience is to be taken into account. Before exploring that matter, however, it is necessary to say something about the argument that the Court should have regard to the fact that any cause of action arose in Queensland.

7. Robinson v. Shirley (1982) 149 CLR 132 concerned a motor vehicle collision in Queensland, involving defendants who were residents of Queensland and persons injured who were residents of New South Wales. The plaintiff sought remittal to the Supreme Court of New South Wales, the defendants to the Supreme Court of Queensland. Brennan J. ordered that the matters be remitted to Queensland. In reaching his conclusion Brennan J. said, at p 138:

" The circumstances do not reveal any sufficient ground for departing from the choice of the Supreme Court of Queensland as the court to which the matter ought prima facie to be remitted."

But, it seems to me that his Honour was speaking in the context that "the choice of the court to which the action is remitted determines the body of law which is to be applied to it" (at p 136). In the case before his Honour, there were two systems of law conferring "rights of different measures upon the plaintiff" (at p 137). For that reason, there was a predisposition towards the court in whose jurisdiction the tort had been committed, particularly when considerations of convenience did not point with any certainty in another direction.

8. Brennan J. did speak of "powerful reasons for adopting the law of the place where the tort is committed" because "If it were not for the existence of an obligation under that law, no cause of action would be enforceable under any other body of law" (at p 136). Professor Pryles has described this passage as "a statement of the classic vested rights doctrine" (Pryles, "The Remission of High Court Actions To Subordinate Courts And The Law Governing Torts", (1984) 10 Sydney Law Review 352, at p 370). If Professor Pryles is right in his attribution, a question may arise as to the implications of Breavington v. Godleman (1988) 62 ALJR 447; 80 ALR 362. But, in my view, consideration of that question is not called for in the present case.

9. Since Johnstone v. The Commonwealth, it has been accepted that s.44 empowers this Court to remit an action to the Supreme Court of a State, notwithstanding that that court would not have had jurisdiction if proceedings had been instituted there in the first place. That being so, where there is no material difference in the laws of the States concerned and where, therefore, the rights and obligations of the parties are unaffected, I am of the view that remittal is to be dealt with by reference to the balance of convenience. Of course the jurisdiction where this cause of action arose may prove to be the most convenient forum because that is where witnesses are likely to be found. Equally, if the scales are evenly poised, the close connection of the place where the cause of action arose will usually lead to a remittal to that jurisdiction. This general approach is, I think, consistent with what was said in Weber v. Aidone and in Pozniak v. Smith.

10. That said, however, the notion of the balance of convenience has its own difficulties. Is it the convenience of the parties or of their witnesses (or of both) with which the Court is concerned? In State Bank (N.S.W.) v. Commonwealth Savings Bank (1984) 154 CLR 579, at p 586, Gibbs C.J. commented:

" In Pozniak v. Smith (at p 47) the majority of the justices who sat to hear that case cited with approval the observation of Brennan J. in Robinson v. Shirley (at p 136) that the power of remitter 'is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff's rights or correspondingly alter a defendant's obligations'. Mason J., who delivered a separate judgment in Pozniak v. Smith, was of a similar opinion (at pp 48, 51)."

11. Again, the reference to facilitating the course of litigation is made by way of contrast with the rights of the plaintiff or the obligations of the defendant. When, as here, neither of those considerations is involved, what content is to be given to the notion of facilitating the course of litigation? Counsel for the plaintiff submitted that, in the light of what was known about the time between entry for trial and hearing in the relevant jurisdictions, the plaintiff's case was likely to be heard at least a year earlier in the District Court of Western Australia than in the Supreme Court of Queensland at Cairns. Predictions as to the course of the litigation can hardly be made with confidence at this stage but I am entitled to conclude that a hearing of the plaintiff's claim in the District Court of Western Australia will take place substantially earlier than a hearing in the Supreme Court of Queensland at Cairns. That is a relevant consideration, particularly as the defendant will not be prejudiced by the earlier hearing.

12. What are other relevant considerations? The plaintiff will, of course, have to give evidence. If the matter is remitted to Queensland, a journey to and from that State will cause him pain and discomfort because of his back condition. His other witnesses who live in Perth are doctors, two of them general practitioners and two specialists. The plaintiff's advisers have made copies of medical reports available to the defendant who has not yet sought to have the plaintiff examined by a doctor of its own choosing. It may be that any conflict of medical opinion will not require the attendance of both general practitioners to give oral evidence in Queensland. But it would be reasonable to assume that one of them may be needed and probably both specialists, one of whom is a physician and the other an orthopaedic surgeon. The defendant did not submit otherwise. The cost of flying medical practitioners to Queensland will be considerable, both in terms of air fares and witness fees. And it will be a matter of considerable inconvenience to the doctors concerned and, no doubt, to their other patients. The plaintiff is not working. He is on an invalid pension and is legally aided. The cost to the plaintiff (or the legal aid fund) if the action is litigated in Queensland will be sizeable in terms of travelling expenses and witness fees. It is not suggested that there will be any great discrepancy in actual legal costs, wherever the action is fought, but there will be high out-of-pocket expenses if the plaintiff's solicitor and counsel travel to Queensland. All told, out-of-pocket expenses for the plaintiff, his medical witnesses, solicitor and counsel will be of the order of $10,000. Whether the Legal Aid Commission of Western Australia will continue to assist the plaintiff if the action is to be heard in Queensland is a matter on which the plaintiff's advisers have sought advice from the Commission. But, I was told, the Commission is unwilling to commit itself to a decision at this stage.

13. If the action is remitted to Western Australia, the plaintiff intends to call the worker who was engaged with him in lifting the sleeper at the time he was injured. In view of his long history of medical treatment, it may not have been necessary for the plaintiff to call Dr. Merlo or the specialist who performed a laminectomy on him in Queensland. However, given the controversy surrounding the circumstances of his injuries, he may well have to call Dr. Merlo in regard to his examination on 6 May 1980. Presumably the defendant will call Dr. Merlo if the plaintiff does not, because the doctor's evidence can be expected to throw light on just what accident or accidents the plaintiff did have on 6 May 1980. The defendant wishes to call three other members of the gang on which the plaintiff was working and this, no doubt, because of the accident the subject of a workers' compensation claim. They still live in Queensland. The significance of their evidence is obvious; the defendant is likely to assert that, if there was an accident on 6 May 1980, it was the one which prompted the workers' compensation claim. The defendant argues that expert evidence may be required relating to railway sleepers and rail carts but one would think that this could be given by any experienced engineer, equipped with relevant information as to weights and dimensions. Likewise, although the defendant speaks of the possibility of a view, it is hard to see that anything would be accomplished by a view that could not be achieved by photographs and oral description.

14. Assessing the balance of convenience is not simply an exercise in costing; that would not be difficult to do. Equally, it is not the convenience of the parties themselves with which the Court is primarily concerned. The aim is, I think, to select the court which, in all the circumstances, will facilitate the course of the litigation. I have concluded that this aim is more likely to be achieved if the matter is remitted to the District Court of Western Australia. In reaching this conclusion I have made the assumption that, notwithstanding the problems associated with two apparent accidents on the one day, the plaintiff's claim is not devoid of merit. To remit the action to Queensland will place him under a grave handicap in the prosecution of that claim. Legal aid may cease or it may continue on an intermittent basis that can only lead to further delay. The inconvenience to medical witnesses will be the greater, not merely their personal inconvenience but as well the problems for their practices. If the action is heard in Western Australia, there may be inconvenience to lay witnesses but, so far as is known, it will be personal. The defendant is clearly in a position to meet the expenses associated with a hearing in Western Australia. There will be no obvious injustice to the defendant if compelled to litigate in that State. Looking at the matter overall, the balance of convenience tips in favour of the District Court of Western Australia.

15. Counsel agree that the the appropriate order by way of costs is costs in the cause. It follows that there should be an order on the plaintiff's summons that the matter be remitted to the District Court of Western Australia and that the costs of the summons be costs in the cause. The defendant's summons will be dismissed with no order as to costs.

Orders

Order that the matter be remitted to the District Court of Western Australia and that the costs of the plaintiff's summons be costs in the cause. Certify for counsel.

Further order that the defendant's summons be dismissed with no order as to costs.