Dunn v The State of New South Wales

[2017] ACTSC 352

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Dunn v The State of New South Wales
Citation:	[2025] ACTSC 260
Hearing Date:	13 June 2025
Decision Date:	20 June 2025
Before:	Muller AJ

Decision:	1.	The application is dismissed.
2.	The defendant is to pay the plaintiff’s costs of the
application.

Catchwords:	JURISDICTION, PRACTICE AND PROCEDURE – CROSS- VESTING – application to transfer proceedings to NSW Supreme Court – plaintiff domiciled in Queensland – prospective lay and expert witnesses located in NSW and Queensland – no defence yet filed – facts of application neutral as to favourability of forum – transfer not in interests of justice – application
dismissed
Legislation Cited:	Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), s 5
Cases Cited:	Bateman and Idameneo (No 123) Pty Limited v Fairfax Media
Publications Pty Limited and Ors [2013] ACTSC 72; 8 ACTLR 13
BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400 Langton v Western Sydney Local Health District [2017] ACTSC 352
Voth v Manildra Flour Mills [1990] HCA 55; 171 CLR 538
Parties:	Bradley Dwayne Dunn (Plaintiff)
The State of New South Wales (Defendant)
Representation:	Counsel
Lachlan Edwards (Plaintiff)
Dan Shillington (Defendant)
Solicitors
United Legal (Plaintiff) McCabes Lawyers (Defendant)
File Number:	SC 74 of 2025
MULLER AJ:
Introduction
1․	The application before the Court is brought by the defendant and seeks to transfer the
proceedings commenced in this Court by the plaintiff to the Supreme Court of New South
Wales (NSW Supreme Court).
2․	The substantive proceedings were commenced relatively recently in March 2025. They
are proceedings for personal injury arising from sexual abuse alleged to have occurred
whilst the plaintiff was a state ward and subject to a foster care arrangement at Dubbo
in New South Wales, in or about 2006. The plaintiff was then aged about eight years old.
3․	The application is brought pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting)
Act 1993 (ACT). The defendant was not specific about the part of the section relied upon.
The provision relevant in this instance is s 5(2)(b)(iii) as there is no suggestion that either:

(a) The proceedings arise out of or are related to another proceeding pending in

the NSW Supreme Court (s 5(2)(b)(i)); or

(b) The proceedings are or would have been incapable of being instituted in the

ACT (s 5(2)(b)(ii)(A)).

4․	Section 5(2)(b)(iii) requires this Court to transfer the proceedings if it is otherwise in the
interests of justice that the proceedings be determined by the NSW Supreme Court.

Applicable principles

5․	The determination is not an exercise of discretion. If this Court is satisfied that it is in the
interests of justice that the action be determined by the NSW Supreme Court, the
proceeding must be transferred: BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR
400 (Schultz) at [63].
6․	The summation of relevant principles set out by McWilliam AsJ in Langton v Western
Sydney Local Health District [2017] ACTSC 352 at [5]-[8], remains apposite:

The principles to be applied in determining an application for transfer under the cross-vesting legislation were expounded by the High Court of Australia in BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 (BHP v Schultz). Theyhave [sic] been followed in this Court in cases such as Barker v Robert Barker Nominees Pty Ltd [2011] ACTSC 73 per Master Harper at [21] and in Bateman v Fairfax Media Publications Pty Ltd & ors [2013] ACTSC 72; 8 ACTLR 13 (Bateman), where Refshauge J set out in detail the applicable principles at [68]-[70], to which I have had regard in the determination of this application. It is not necessary to repeat them in totality here. The factors which I consider to be relevant to the circumstances of the proceedings before me are addressed below.

As a starting point, the legislation does not confer a discretion on the Court. If satisfied that it is in the interests of justice that the action be determined by another Supreme Court, this Court must order a transfer.

The interests of justice are not limited to the interests of the parties, although these must be considered: BHP v Schultz at [15]; Bateman at [68].

It is not necessary that the first court is clearly an inappropriate forum. Rather, it is both necessary and sufficient that, in the interests of justice, the second court is more appropriate: BHP v Schultz at [15].

7․	In that passage her Honour referred with approval to the more detailed statement of
applicable principles by Refshauge J in Bateman and Idameneo (No 123) Pty Limited v
Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72; 8 ACTLR 13 at [70(o)].
I have also had regard to his Honour’s statement at [70(p)], that significant weight will,
as a general rule, be given to the place of the tort and, in personal injury matters, the
place where the parties live. Should these matters coincide, that will ordinarily resolve
the question of the more appropriate forum, although other factors must still be
considered in determining whether it is in the interests of justice to transfer the
proceedings. I have also had regard to the statement in Schultz at [15] (per Gleeson CJ,
McHugh and Heydon JJ), that although the plaintiff’s choice of forum is not to be given
significance, the reasons why that choice was made may be relevant and should be
considered.

The application of the principles

8․	The defendant relied upon the affidavits of Luke McCann, solicitor for the defendant,
sworn on 19 May 2025 and 12 June 2025. Mr McCann identified the following matters of
relevance:

(a)	No timetable has been set in the ACT proceedings;
(b)	Both parties obtained expert medical opinions from doctors located in

Queensland (based on assessments conducted via AVL) prior to the

commencement of proceedings;

(c) The plaintiff was residing in Tamworth, NSW at the time of each of the medical

examinations, although he presently resides in Queensland;

(d) Transfer to NSW was likely to result in the matter proceeding to mediation prior

to 19 December 2025 with a hearing likely in the last quarter of 2026;

(e) Four prospective lay witnesses had been identified at various locations in rural

NSW: three in the Dubbo region and one in the Taree region;

(f) Four other prospective witnesses were in a category where their whereabouts

had not been determined;

(g) Interlocutory appearances in the NSW Supreme Court in Sydney are frequently

attended via AVL.

9․	The plaintiff relied upon the affidavit of Peter Glover, solicitor for the plaintiff, sworn on
12 June 2025. Mr Glover attested to the following relevant matters:

(a)	The plaintiff was residing in emergency housing in Queensland;
(b)	The plaintiff had recently received treatment (via AVL) from a psychologist

located in the ACT;

(c) There is little difference in the travel time required from Dubbo (where some

prospective witnesses are located) to either Sydney or Canberra;

(d) The plaintiff is represented by his firm on a “no win no fee” basis.

10․	The argument put by the defendant in support of transfer of this proceeding was helpfully
set out in a written outline of submissions. The defendant argued:

(a) It is a statutory entity based in New South Wales with no connection to the

Territory;

(b) The cause of action accrued to the plaintiff in NSW and its determination will be

subject to the laws of NSW;

(c)	All relevant prospective defence witnesses are located in NSW;
(d)	The plaintiff had failed to provide any evidence pointing to why the ACT was a

more appropriate forum;

(e) No differences of substance arise in relation to timing issues in either

jurisdiction;

(f) There was no connection with the ACT apart from the presence of the plaintiff’s

solicitor in the jurisdiction.

11․	In oral submissions counsel for the plaintiff suggested that the primary basis for the
application was that the Territory presented an inconvenient forum for the defendant. In
this regard reliance was placed on the observations in Voth v Manildra Flour Mills [1990]
HCA 55; 171 CLR 538 at [30] where the High Court observed, in the context of an
analysis of the doctrine of forum non conveniens on a stay application, that the effect of
the balance of convenience favouring another jurisdiction does not justify the dismissal
of an action or the grant of a stay.
12․	Counsel for the plaintiff relied upon the speculative nature of the engagement of the
plaintiff’s solicitor and the prospect of increased costs were the proceedings transferred
to NSW. The Court was invited to consider the risk that the plaintiff may not be able to
retain representation in that jurisdiction.
13․	It was also submitted that this Court is well equipped to deal with the proceeding.

Consideration

14․	It is a matter of significance that in modern litigation, where so much is or is able to be
achieved remotely, that some of the matters that have occupied the minds of judges
entertaining cross vesting applications in the past are of little, or at least less, relevance
today. In this case the issue is thrown into sharp relief by reference to the state of the
medical evidence. Both of the retained experts are located in Queensland and have only
met the plaintiff via remote consultation. That is also the case with his treating
psychologist, who is located in the Territory, but whose presence here is for present
purposes a matter of coincidence only.
15․	I accept the submission of the defendant that the happening of the subject events in
NSW, the consequent application of NSW law to the determination of the cause of action,
the domicile of a number of prospective witnesses in that jurisdiction and the nomination
of the State of NSW as the defendant, are factors lending weight to the proposition that
NSW presents as the natural forum in this case. However, this application has been
brought at a time when no defence has yet been filed. As a consequence, the Court is
faced with a pleaded cause of action that is presently without contradiction, and that may
be the subject of admission in part or in full. It is in those circumstances very difficult to
make an assessment of the significance to be attached to the possibility that the
defendant will seek to rely upon a substantial body of lay evidence. In addition, half of
the identified witnesses are yet to be located and their place of domicile is therefore
unknown. There are also no local law considerations that render the NSW Supreme
Court a more appropriate forum.
16․	To the extent that lay witnesses presently domiciled in Dubbo may be required to be
called to give evidence, and noting the location of that city with reference to Sydney and
Canberra, I consider their place of domicile to be a neutral factor.
17․	The plaintiff’s present place of residence in emergency accommodation in Queensland
is also a neutral factor.
18․	It is perhaps trite to observe that the continuation of this proceeding in the ACT will be
more convenient for the plaintiff’s solicitor and the transfer of the proceeding will be more
convenient for the defendant’s solicitor. I regard that issue as a neutral factor.
19․	In Schultz, at [14] the High Court (per Gleeson CJ, McHugh and Heydon JJ), observed:

An application for transfer under Section 5 of the Cross Vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court shall transfer the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interest of justice that it should be exercised.

It is not necessary that it should appear that the first court is a “clearly inappropriate” forum.

It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.

20․	I am not satisfied that the defendant has established on the material before me that the
NSW Supreme Court is a more appropriate forum for the determination of this
proceeding, such that it is in the interests of justice to order their transfer to that Court.

Orders

21․ Accordingly I make the following orders:

(1)	The application is dismissed.
(2)	The defendant is to pay the plaintiff’s costs of the application.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate:

Date: