Foley v Search and Rescue Services Club Inc

[2000] VSC 544

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7658 of 2000

ELEANOR THERESE FOLEY	Plaintiff
v.
SEARCH AND RESCUE SERVICES CLUB INC.	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 DECEMBER 2000
DATE OF JUDGMENT:	21 DECEMBER 2000
CASE MAY BE CITED AS:	FOLEY v. SEARCH AND RESCUE SERVICES CLUB INC.
MEDIUM NEUTRAL CITATION:	[2000] VSC 544

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CATCHWORDS:      Practice and Procedure – Transfer of proceeding to another State – Cause of action arising in Queensland – Proceeding issued in Victoria – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic.) s.5.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. I. Fehring	Gaines & Partners
For the Defendant	Mr. N. Murdoch	Ligetti Partners

HIS HONOUR:

1. This is an application by the defendant for an order that this proceeding be transferred to the Supreme Court of Queensland.  The application is made pursuant to the provisions of s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic.).

1. The plaintiff is a resident of Ballarat.

1. On 27 January 1997 the plaintiff was present at the premises of the defendant the Search and Rescue Services Club Inc. at Orchard Avenue, Surfers Paradise in Queensland for the  purpose of playing poker machines installed in the club.

1. Whilst the plaintiff was walking down a set of stairs at the club she slipped on the bottom step and fell.

1. As a consequence of her fall the plaintiff suffered injuries to her feet, ankles and right knee including a fracture of one of her toes.

1. As it transpired the plaintiff was due to return to Victoria later that day.

1. Following her fall the plaintiff immediately preceded to the airport, caught her plane and flew to Melbourne.

1. On the following day the plaintiff attended at the Ballarat Base Hospital for examination and treatment.  She subsequently saw her general practitioner who referred her to a physiotherapist and an orthopaedic surgeon for treatment.

1. All medical treatment received by the plaintiff has been in Victoria and all expenses incurred by her have been incurred in this State.

1. In addition to the fact that her medical witnesses are resident in Victoria the plaintiff has in Victoria two family members who witnessed her fall and one consulting engineer who has provided her solicitors with an opinion concerning the state of the steps in question which opinion is based upon photographs of the steps shown to him.

1. If the proceeding is transferred to Queensland it will be necessary for those witnesses to travel to Queensland to give their evidence or give it via video link if such a facility is available in Queensland.

1. The defendant on the other hand makes the following points:

1.        The plaintiff's cause of action arose in Queensland.

2.The defendant's witnesses as to liability including their expert witnesses are resident in Queensland.

3.The plaintiff has sought trial by jury.  For a jury and for that matter the trial Judge, to appreciate the adequacy of the stairs involved, it will be necessary that they have a view of the premises.  If the proceeding is heard in Ballarat that will not be practicable.

1. Had the plaintiff not sought a jury trial in respect of this proceeding I would have considered that the interests of justice did not warrant transferring the proceeding to Queensland.  But she has.

1. In my view the defendant's contention that the jury may well request a view of the stairs has much force to it and is one which may well be acceded to by a trial Judge.

1. In that situation I consider that the interests of justice do dictate that this proceeding be transferred to Queensland.

1. I order therefore that pursuant to the provisions of s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic.) this proceeding be transferred to the Supreme Court of the State of Queensland.

1. I order that the parties' costs of this application be their costs in the cause.

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