Dinnison, Barrie Charles v Commonwealth of Australia

[1998] FCA 637

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Transfer of proceedings pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - whether proceedings should be transferred to Supreme Court of New South Wales after remitter from High Court - whether in “the interests of justice” to transfer - relevant factors - forensic advantage in the other court - delay and interlocutory activity - legally-aided applicant’s liability for costs

Judiciary Act 1903 (Cth) - s 44
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - s 5(4), s 5(4)(b)(ii)(A), (B), (C), s 5(4)(b)(iii)
Legal Aid Commission Act 1979 (NSW) - ss 47, 47(1)(b)

State Bank of New South Wales v The Commonwealth Savings Bank of Australia (1984) 154 CLR 579 - followed
Bourke v State Bank of New South Wales (1988) 22 FCR 378 - considered
Woodlands v Permanent Trustee Company Limited (1996) 68 FCR 213 - considered

BARRIE CHARLES DINNISON -v- COMMONWEALTH OF AUSTRALIA

NG 572 OF 1991

FOSTER J

22 MAY 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 572 of 1991

BETWEEN:	BARRIE CHARLES DINNISON APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:		FOSTER J
DATE OF ORDER:		22 MAY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. That the application to transfer proceedings be dismissed with no order as to costs.

1. That the application for trial by jury be referred to Whitlam J for hearing at such time and subject to such directions as is seen fit.

1. That the question of costs with respect to the application for trial by jury be determined by the trial judge.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 572 of 1991

BETWEEN:	BARRIE CHARLES DINNISON APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	FOSTER J
DATE:	22 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

By his notice of motion the applicant in these proceedings seeks an order, pursuant to the provisions of s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“the Act”), that they be transferred to the Supreme Court of New South Wales for hearing.  I have previously held, in a judgment given on 22 April 1997, that, contrary to submissions made by the respondent, I have the necessary power to make such an order.  I have now heard submissions as to whether such an order should be made in the circumstances of the case.  Should I decline to make the order, I am, in the alternative, asked to make an order that the proceedings in this Court be heard with a jury. 

It is convenient to set out, at this stage, the legislative provisions under which the order for transfer is sought.  They are as follows:-

“(4)     Where:

(a)a proceeding (in this subsection referred to as the ‘relevant proceeding’)is pending in the Federal Court ... (in this subsection referred to as the ‘first court’); and

(b)    it appears to the first court that:
           ...

(ii)       having regard to:

(A)whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding ... would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of a State or Territory ;

...
  (C)      the interests of justice;

it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;

the first court shall transfer the relevant proceeding to that Supreme Court.”

The submissions on behalf of the applicant are predominantly based on the assertion that it would be in the interests of justice for the transfer to be made. It is also put, however, that the provisions of s 5(4)(b)(ii)(A) have some bearing upon the manner in which my discretion should be exercised, a matter to which I shall make reference later in these reasons.

The applicant’s submissions are put under three headings: (1) a transfer to the Supreme Court would enable the applicant to assert an entitlement to interest upon any damages awarded to him, which entitlement would be unavailable in this Court; (2) he could obtain a hearing before a jury  in the Supreme Court, such hearing not being available in this Court; and (3) his current grant of legal aid under the Legal Aid Commission Act 1979 (NSW) would, if the matter were heard in the Supreme Court, entitle him to an indemnity in respect of the respondent’s costs should he be unsuccessful in the action, which indemnity would be unavailable if the action continued in this Court.

In relation to the first and second questions, it is relevant to consider, briefly, the course of proceedings to date.  The proceedings were brought by the applicant on 24 November 1988 in the original jurisdiction of the High Court of Australia.  On 22 August 1991 they were remitted to the New South Wales District Registry of the Federal Court.  This remitter was achieved by orders made, by consent, by Mason CJ.  It appears that the orders were consented to on behalf of the applicant by senior counsel appearing for him on the basis that similar orders had been made by Mason CJ in relation to a related matter, after discussion had taken place as to whether it was appropriate that remitter should be to the Supreme Court of New South Wales or the New South Wales Registry of this Court.  In that case it had been conceded that the decision of Gibbs CJ in State Bank of New South Wales v The Commonwealth Savings Bank of Australia (1984) 154 CLR 579 required that conclusion. The relevant passage in the judgment appears at 586-7 as follows:-

“The purpose of a remitter under s. 44 is simply to relieve this Court of the necessity to hear cases that might more conveniently be heard elsewhere, particularly where the litigation involves the trial of issues of fact. The Court should not, by making a remitter, alter the rights of the parties. The plaintiff chose the High Court as its forum. ... When this Court is called on to decide to which of two courts a remitter should be made, if the law to be applied in one of the competing jurisdictions is the same as, and that in the other is materially different from, that which would be applied if the matter remained in this Court, the remitter should be made to the court in which the law to be applied is the same as that applicable in this Court. As I have said, I do not accept that it is clear that the law to be applied in this Court or in the Federal Court would be different from that to be applied in the Supreme Court of New South Wales but it is clear that the law to be applied in the Federal Court would be the same as that applicable in this Court, and the remarks of Mason J., which are of course entitled to great respect, support the view that s. 94 of the Supreme Court Act, which would be applied in the Supreme Court, would not be applied in this Court or in the Federal Court.  The amount of interest that might be awarded under s. 94 might run into millions of dollars.  The fact that the liability of the defendant might be increased to that extent if the matter were remitted to the Supreme Court is in my opinion decisive.  The matter should be remitted to the Federal Court.”

It was accepted that this reasoning necessarily disposed of submissions that would otherwise have been made in support of the proposition that the proceedings should have been remitted to the Supreme Court of New South Wales.  Those submissions were that the applicant should have the benefit of a hearing in the Supreme Court where he would, arguably, have an entitlement to interest on his damages and where he would have the benefit of a jury trial.  It is not entirely clear why such a trial would necessarily be beneficial to the applicant as against a trial by judge alone but, for the purpose of the application, this was merely accepted as an assumption.  On the basis that remitter to the Supreme Court would confer upon the applicant benefits to which he would not have been entitled in the forum which he had chosen, it was accepted by counsel for the applicant that remitter to this Court was the appropriate order.

Since remitter of this matter to this Court, there have been significant interlocutory proceedings.  The applicant has been granted an extension of time in which to bring the proceedings.  There has been an appeal against that decision resulting in its being confirmed by a decision of a Full Court of this Court. 

The situation, then, put simply, is that the applicant chose to bring his proceedings against the Commonwealth in the High Court of Australia, rather than in a Supreme Court which would have had jurisdiction to hear his case.  He did so in circumstances where there was little or no likelihood of his case being heard in the High Court and even less likelihood of its being heard with a jury.  Moreover, it would have been known that no award of interest could have been made in his favour.  The circumstances, also, were such that it would have been apparent that, as was conceded, a transfer to this Court would take place rather than to the Supreme Court because of the reasoning in the State Bank case. Furthermore, as already indicated, the jurisdiction of this Court has already been extensively exercised in this litigation. However, it is submitted on behalf of the applicant that s 5(4)(b)(ii)(A), (B) and (C) and s 5(4)(b)(iii) of the Act provide this Court with an extremely broad discretionary basis upon which an order transferring the proceedings to the Supreme Court of New South Wales may now be made.

Reliance is placed upon the wording of s 5(4)(b)(ii)(A) on the basis that the applicant’s proceedings could not have been instituted in this Court, in the first instance, as this Court has no jurisdiction to entertain suits against the Commonwealth. It has obtained this jurisdiction, however, by virtue of remitter from the High Court pursuant to s 44 of the Judiciary Act 1903 (Cth) in the circumstances already adverted to. In these circumstances, in my opinion, the terms of this subsection can have no real bearing on the outcome of this application.

The phrase “the interests of justice” in s 5(4)(b)(ii)(C) and s 5(4)(b)(iii) has been the subject of judicial consideration. In Bourke v State Bank of New South Wales (1988) 22 FCR 378 Wilcox J considered the phrase in s 5(4)(b)(ii). His Honour said (at 394):-

In my opinion this phrase ought to be read widely.  Under that rubric, as it seems to me, the Court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date.  It is not in ‘the interests of justice’ to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation.”

His Honour, in the same case, considered the phrase in s 5(4)(b)(iii). He made the following observations:-

“The final subpar in s 5(4)(b) of the Jurisdiction of Courts (Cross-Vesting) Act is framed in wide and vague terms.  It must be made to appear that it is ‘otherwise in the interests of justice’ that the relevant proceeding be determined by the relevant Supreme Court.  I take this to be a charter for the Court to take the course which appears to it to be more just, interpreting that word widely.  However, for an applicant’s choice of forum to be overridden, there must be some objective factor which makes it possible to say that the interests of justice will be better served by transfer than by non-transfer.  Where, as here, it is impossible to identify any such factor, the subparagraph has no application.”

It has been put to me that, in considering whether I should make an order remitting to the Supreme Court based upon these sections, I should regard myself as being in no way bound by the considerations taken into account by Gibbs CJ in State Bank when determining whether remitter should occur from the High Court.  I do not accept this submission.  I consider the observations made in State Bank to be of general application and, even if not directly binding upon me, nevertheless they provide significant guidance.  In my view, it would not be in the interests of justice that I should make an order transferring these proceedings to the Supreme Court in circumstances where that would confer a significant forensic advantage, namely the right to claim interest on an award of damages, upon the applicant in circumstances where that right was not available to him in the forum of his choice.  It is to be noted, also, that the question of the availability of a jury was canvassed in the proceedings in the High Court before the applicant’s claim was remitted to this Court.  That consideration did not result in remitter to a Supreme Court at that stage.  A fortiori, in my opinion, it should not prevail now in this Court, especially after such a period of delay has occurred and considerable interlocutory activity has taken place in this forum.  I would therefore decline to transfer this matter to the Supreme Court on either of these bases. 

However, a further reason is urged by the applicant for the transfer of the proceedings.  In my opinion, this is a matter of far greater substance.  The applicant is legally aided.  Aid has been provided to him pursuant to the provisions of the Legal Aid Commission Act 1979 (NSW). Since the decision in Woodlands v Permanent Trustee Company Limited (1996) 68 FCR 213, it has been the law that s 47(1)(b) of that Act, which provides that a legally assisted person shall not be liable for the payment of any costs order made against him in proceedings in which he has such legal aid, does not apply to proceedings in this Court.  It is conceded that the result is that, should the applicant be unsuccessful in these proceedings in this Court, he will be liable to the Commonwealth for the Commonwealth’s costs of the proceedings.  This would not be the position if the matter were brought in the Supreme Court of this State.  The amount of any such cost order would, having regard to the potential length of the litigation, be substantial indeed.  The evidence indicates to my satisfaction that the possibility of such an order being made against him in circumstances where it could be enforced, is sufficient to deter the applicant from proceeding with his action at all.  In this situation there is, in my view, a significant question as to whether it would be in the interests of justice that I transfer the matter to the Supreme Court.

The Commonwealth has, however, sought to meet this situation by the provision of an undertaking.  The text of the undertaking is to be derived from correspondence passing between the parties and provided to the Court by letter from the Australian Government Solicitor dated 12 May 1998.  The undertaking is, “that, in the event that the Commonwealth is successful in these proceedings and/or obtains a cost order in its favour in either the interlocutory or substantive hearing, the Commonwealth undertakes not to disadvantage the applicant relative to the situation that would have prevailed had the proceedings been instituted in the Supreme Court of New South Wales. In particular the Commonwealth will not seek to enforce any order for costs in its favour save as would otherwise be applicable under s 47 of the Legal Services Commission Act 1979 (NSW)”.

I am satisfied that the giving of this undertaking is sufficient to cure the prejudice to the applicant referred to in the last paragraph.  This being so, I am satisfied that the interests of justice do not require that the proceedings be transferred to the Supreme Court.  I therefore dismiss the notice of motion insofar as it seeks this order.  In the circumstances I make no order as to costs.

As to the other order sought in the notice of motion, namely that the proceedings in this Court be heard with a jury, I have come to the conclusion that this application should be heard by Whitlam J who will be the trial judge.  At this stage of the proceedings, it is, in my view, inappropriate to make this decision.  Although interlocutory proceedings relating to the extension of time and these proceedings for transfer have taken place, the case management of the substantive proceedings has not commenced to any significant degree.  Whilst some assistance can be gained from previous proceedings brought in this Court in which an applicant alleged psychiatric damage resulting from his presence at the nuclear testing at Maralinga, it cannot be certain, at this stage, that the present proceedings will necessarily take the same course so far as the adduction of evidence is concerned.  Whilst it is correct that no proceedings in this Court have ever been held with a jury, it is not correct to say that it is impossible for a jury trial to be held.  It is far more desirable, in my view, that application for a jury trial be made to the trial judge at an appropriate stage in the proceedings rather than that I should make this decision at this stage of the proceedings, in circumstances where I shall not personally be presiding at the hearing.  Accordingly, I order that the question whether this trial proceed with a jury be referred to Whitlam J for a decision at such time and subject to such directions as his Honour sees fit.  I reserve the question of costs of this aspect of the notice of motion for determination by the trial judge.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:             22 May 1998

Counsel for the Applicant:	Mr J.S. Hilton SC
Solicitor for the Applicant:	Maurice May & Co
Counsel for the Respondent:	Mr M.J. Joseph SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 May 1998
Date of Judgment:	22 May 1998