Guzowski v Cook

[1981] HCA 53

HIGH COURT OF AUSTRALIA

Gibbs C.J.

GUZOWSKI v. COOK

(1981) 149 CLR 128

8 October 1981

High Court

High Court—Practice—Federal Jurisdiction—Action commenced in High Court—Power to remit to any State Supreme Court with jurisdiction with respect to subject-matter and Parties—Appropriate court—Action for personal injuries between residents of different States—Remission to court in &hich action might have been commenced—Judiciary Act 1903 (Cth), s. 44.* *The Judiciary Act 1903 (Cth), as amended, s. 44, states: "Any matter that is at any time pending in the High Court, whether originally commenced in the High Court or not, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to &hich it is remitted."

Decision

October 8.
GIBBS C.J. Before me are applications under s. 44 of the Judiciary Act by the parties to this action for the remitter of the action to a Supreme Court. The plaintiff seeks remitter to the Supreme Court of Victoria and the defendant seeks remitter to the Supreme Court of Queensland. The action is one for damages for personal injuries. It was commenced in this Court on a footing that it is an action between residents of different States. The statement of claim alleges that the plaintiff resides in Victoria and the defendant in Queensland. There was originally a second defendant, a company, but the action against that defendant has been discontinued and the position of that former defendant is not in any way relevant. (at p129)

2. The motor collision which caused the injuries occured in Queensland on or about 22 December 1978. At that time the plaintiff was resident in Queensland. It appears that up until about the month of May 1975 he had resided in Melbourne but that from about May 1975 until August 1979 he lived in Brisbane. In March 1979 a claim was made on the defendants by a firm of Queensland solicitors who, it appears, got to the stage of obtaining from counsel an opinion as to the quantum of damages likely to be awarded in respect of the plaintiff's injuries. However, it appears from the affidavit filed by the plaintiff's solicitor that the plaintiff was brought back to Melbourne in August 1979 by his father after he had suffered a nervous breakdown. It appears that the physical injuries which the plaintiff sustained in the collision were not major, although he does seem to have suffered a whiplash injury. A very important question in the case, no doubt, will be whether his nervous breakdown and the psychiatric condition which has subsequently been disclosed were due to or aggravated by the collision. He has since been in hospital in Melbourne and has been treated by four doctors resident in Victoria. (at p130)

3. I have power to remit the matter to either of the Supreme Courts and I must confess that I find it difficult to decide which would be the more appropriate forum. On the one hand Mr de Jersey, for the defendant, has relied on the fact that the accident occurred in Queensland, that there are a number of witnesses as to liability who reside in Queensland, that the plaintiff had engaged Queensland solicitors who had done a substantial amount of work in connexion with the claim, that the insurer who will meet the liability is a Queensland corporation and that another action arising out of the same collision has been brought in the District Court in Queensland. However, that last matter is, in my opinion, completely irrelevant because the present proceedings would not be remitted to a District Court in either State. On the other hand the plaintiff now undoubtedly lives in Victoria and there are a number of medical witnesses from Victoria, who, it may be expected, will be called wherever the action is heard. It is true the affidavit does not specifically state that the doctors who treated the plaintiff will be called as witnesses, but it may be expected that some of them at least will be called. Without prejudging the case, one can tend to agree with Mr Richardson's submission that the principal issue is likely to be quantum rather than liability, and even if that is not so the medical witnesses will be put to inconvenience in moving from Victoria to Queensland for the purposes of the trial. (at p130)

4. However, there are two circumstances which incline me to the view that on the whole it would be more appropriate for me to remit the matter to the Supreme Court of Queensland. The first is that at the time of the actual collision the plaintiff was resident in Queensland, and that his nervous breakdown occurred in Queensland. Since the cause of the breakdown is a very important issue in the case, it is possible, although it does not appear from the material that this is so, that there will be potential witnesses, medical or lay, in Queensland who may be able to give evidence as to the cause of the nervous breakdown. (at p130)

5. The second matter is, that it is apparent that the Supreme Court of Victoria would not have had jurisdiction if the action had been commenced in that Court, unless of course the defendant had entered an unconditional appearance, or had been served within the jurisdiction. In other words, if the proceedings had not been instituted in this Court, the overwhelming likelihood is that they would have been instituted in the Supreme Court of Queensland. (at p130)

6. The matter lies entirely within my discretion and having considered the circumstances to which I have referred, I have decided to remit the matter to the Supreme Court of Queensland. (at p131)

Orders

Remit the matter to the Supreme Court of Queensland.

Costs of the application to be costs in the cause.