Haynes v FFE Building Services Limited No. Scgrg-98-1322 Judgment No. S226

[1999] SASC 226

HAYNES  v  FFE BUILDING SERVICES\ LIMITED

[1999] SASC 226

Civil

1 WICKS J                  This action was commenced by summons dated 25 September 1998.  In the Statement of Claim, the plaintiff alleges that the defendant (formerly J H Building Services Ltd) traded as T O’Connor & Sons and carried on business as an installer and repairer of air conditioning units and components in New South Wales and Queensland.  The plaintiff further alleges that on 2 October 1995, while erecting air-conditioning ducts at the Reef Casino in Cairns, Queensland, the plaintiff sustained a back injury.  The Statement of Claim further alleges that on or about 22 November 1995, the plaintiff sustained a further injury in the course of his employment with the defendant at the Reef Casino - again by lifting air-conditioning ducts.  The plaintiff alleges that on each occasion, the injury sustained by the plaintiff was caused by the negligence of the defendant, a breach of statutory duty on behalf of the defendant or a breach by the defendant of an implied condition of the plaintiff’s contract of service with the defendant.  In connection with the alleged breach of statutory duty, the plaintiff relies upon the Workplace Health, Safety Act 1995 (Qld).
2 The summons was served in October 1998 and an appearance entered by the defendant on 17 December 1998. 
3 The only matters connecting this action with the State of South Australia are, firstly, that the plaintiff resides in this State and, secondly, that the plaintiff’s treating doctor practises in Adelaide.  Additional reasons justifying the commencement of the action in this State appear in an affidavit of the plaintiff’s solicitor in which she said that the defendant was registered in New South Wales, caseflow management in South Australia would assist having the matter dealt with expeditiously and the cost of litigating the matter would be likely to be less than if the proceedings were instituted in Queensland.  The affidavit in question further stated that while the plaintiff was an employee of the defendant, at no time was he employed to work in South Australia, at no time did he engage in employment activities with the defendant in South Australia, at no time did he travel to and from South Australia for the purpose of engaging in employment activities on behalf of the defendant and at no time was he a resident of South Australia.
4 On 2 March 1999, the plaintiff made application under s5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (SA) for an order transferring these proceedings to the Supreme Court of Queensland.
5 On 2 March 1999, the plaintiff filed an affidavit in support of the application in which he said that the accident site was in Queensland, the air conditioning ducts being used at the Casino site at the relevant time were manufactured in Cairns or Townsville and that a number of persons likely to be witnesses in the action also resided in that State.
6 The plaintiff’s affidavit continued:
"Although there are good reasons for hearing this matter in South Australia, I do not wish to take the risk of losing a, possibly costly, legal argument and prejudicing my claim which became statute barred shortly after proceedings were issued."
It appeared from argument before me that this passage related to the possibility that there would be a limitation on the defendant’s liability under certain provisions of the Workers Rehabilitation and Compensation Act 1986 (SA) if the action were to continue in the Supreme Court of South Australia. The plaintiff was therefore anxious to avoid the cost and expense of arid argument on the applicability of that legislation.
7 In the affidavit to which I have referred, the plaintiff also deposed to the fact that his father had been diagnosed with terminal cancer and that his condition was likely to deteriorate in the near future.  The plaintiff said that he anticipated moving temporarily to Townsville to assist with the care of his father once his cancer had deteriorated to a stage where he could no longer care for himself. 
8 Subsection 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (SA) provides as follows:

1. Where -
   (a)     a proceeding (in this subsection referred to as the ‘relevant proceeding’) is pending in the Supreme Court (in this subsection referred to as the ‘first court’); and
   (b)    (i)   it appears to the first court that the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

1. it appears to the first court that having regard to -
   (A)    whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and
   (B)    the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
   (C)    the interests of justice,
   it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

2. it appears to the first court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,
   the first court shall transfer the relevant proceeding to that other Supreme Court."
   9 Paragraph 5(2)(b)(i) has no application in this matter. 
   10 Paragraph 5(2)(b)(ii) is only applicable where items (A), (B) and (C) are all applicable.  Under item (A), it must appear to this Court that apart from the operation of the cross vesting legislation, the proceedings would have been incapable of being instituted in this Court but would have been capable of being instituted in the Supreme Court of Queensland.
   11 In this State, the Workers Rehabilitation and Compensation Act (the "WRCA") established a regime for compensating workplace injuries. S54 of that Act abolishes common law actions against an employer with respect to disabilities under the Act.
   12 The rule originally stated in Phillips v Eyre (1869) LR 4 QB 225 was reformulated by Brennan J in Breavington v Godleman (1988) 169 CLR 41 at 110-111 and approved by a majority of the High Court in McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 and Stevens v Head (1993) 176 CLR 433. The rule is as follows:
   "A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if - 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce."
   12 This rule is known as the "double actionability rule". Under the first leg of it, the circumstances of the claims for negligence and breach of statutory duty must be of such a character that if the circumstances had occurred in South Australia, enforceable causes of action for negligence and breach of statutory duty would have arisen against the defendant. In fact, in the present case that would not have happened because of the operation of s54 of the WRCA which precludes action against employers with respect to disabilities under that Act. "Disability" is widely defined to include any physical or mental injury.
   13 If the above analysis is correct, the present case does not satisfy the first limb of the double actionability rule and there is a want of jurisdiction in this Court in this case.  I incline to the view that paragraph 5(2)(b)(ii)(A) is therefore applicable. 
   14 Section 6 of the WRCA sets out the circumstances in which the WRCA is applicable. It generally applies to a worker’s employment where there is a sufficient nexus between that employment and the State of South Australia. It may be possible somehow to reason that where s6 excludes a particular case from the operation of the WRCA, this Court would have jurisdiction in the matter and, accordingly, paragraph 5(2)(b)(ii)(A) would have no application. I have, however, some difficulty in taking a step which involves the application of s6 of the WRCA. The words of the double actionability rule which have an important bearing on this matter are as follows:
   "... circumstances of such a character that, if they had occurred within the territory of the forum ...."
   In the present case, the circumstances are the workplace injuries occurring in the workplace. The relevant provisions of the double actionability rule require one to make an assumption that the workplace is situated in South Australia. If that assumption is to be made, then s6 of the WRCA can have no application.
   15 As I have said earlier in these reasons, paragraph 5(2)(b)(ii)(A) probably has application in the present case.  I do not need to decide the point.
   16 Paragraph 5(2)(b)(ii)(B) may also be applicable.  Questions as to the application, interpretation or validity of a law of Queensland are involved. 
   17 Also, it appears to this Court that having regard to the interests of justice, it is more appropriate that the relevant proceedings be determined by the Supreme Court of Queensland in view of the likelihood that there will be arguments as to jurisdiction if these proceedings remain in the Supreme Court of South Australia.  It is strongly arguable that the requirements of paragraph 5(2)(b)(ii) are satisfied and that this Court should order the transfer of those proceedings to that Court.
   18 In the case of the claim for breach of contract, the double actionability rule would have no application. Section 54 of the WRCA would nevertheless apply to bar the claim in South Australia. Paragraph 5(2)(b)(ii) applies in that case as well.
   19 If I am wrong in my analysis of paragraph 5(2)(b)(ii), paragraph 5(2)(b)(iii) would nevertheless be applicable and a transfer of these proceedings to the Supreme Court of Queensland should be ordered if it appears to this Court that it is otherwise in the interests of justice that the proceedings be determined by the Supreme Court of Queensland.  Either paragraph 5(2)(b)(ii) or paragraph 5(2)(b)(iii) is applicable in this case.  I need not decide which.
   20 I note that subs5(3) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld) is a mirror image of s5(2) of the South Australian Act and facilitates the transfer under Queensland law on the same grounds as are applicable under the South Australian Act.
   21 An important criterion in determining whether pending proceedings ought to be transferred to another court is that the transfer must be "in the interests of justice".
   22 In Bourke v State Bank of New South Wales (1988) 85 ALR 61, Wilcox J stated his view of the expression "the interests of justice" in the following words at p77:
   "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."
   21 In Technilock (Aust) Pty Ltd v Mondami (S5979, 15 January 1997, unreported), Debelle J said at p4:
   "When courts are determining cross-vesting applications, they will, generally speaking, aim to select the court which, in all the circumstances, most facilitates the course of the litigation ... The question whether one court is more appropriate than another does not depend merely on questions of suitability and convenience.  Regard must also be had to the interests of justice ...

When considering the interests of justice, it is necessary to identify some objective factor which makes it possible to say that the interests of justice will be better served by transferring proceedings to another court than by not doing so."

22 If this action proceeds in this Court, it is clear that there will be argument put as to the Court’s jurisdiction to hear the action in the light of the WRCA and of matters to which I have referred earlier in these reasons. On the other hand, if the matter is litigated in the Supreme Court of Queensland, none of those issues will arise and the action will be dealt with on its merits.
23 There are a number of matters to be considered in deciding whether it is in the interests of justice to transfer the proceedings to the Supreme Court of Queensland.  The workplace accidents, the subject of the claims in this action, occurred in Queensland.  Apart from the plaintiff, witnesses with respect to liability are either located in Queensland or otherwise located at places outside South Australia.  Various doctors who assessed and reported on the plaintiff’s injuries reside in Queensland.  Witnesses who could depose to the plaintiff’s pre and post accident level of disability continue to reside in Queensland. 
24 I take these matters into account in considering whether it is in the interests of justice that these proceedings be transferred.
25 These proceedings were commenced within applicable limitation periods both here and in Queensland.  The defendant was on notice of the plaintiff’s claim.  There was more than a mere claim involved;  the plaintiff had actually commenced legal proceedings.  This application has been brought at an early stage of the proceedings and before a defence had been filed.  I take these matters into account in assessing whether it is in the interests of justice that these proceedings be transferred to the Supreme Court of Queensland.
26 Queensland law should be applied in this case as the circumstances giving rise to the claims against the defendant occurred in that State.  A transfer of the proceedings to the Supreme Court of Queensland will ensure that the law of Queensland is applied.
27 I do not think the application should be refused merely on the ground that it is made by a plaintiff who is, in effect, having two opportunities to select the forum.  If in other respects the application is in the interests of justice and is taken promptly, I see no reason why I should refuse it.
28 During the course of argument, counsel for the defendant indicated that his client did not oppose the transfer of the proceedings to Queensland  but sought a condition in the order that the transfer was deemed to occur at a date not earlier than the date upon which the application for transfer was actually made.  The purpose of such a condition would be to place the plaintiff  in a situation where he would have to seek an extension of time in respect of an applicable limitation period.  I doubt whether a condition of the kind proposed would achieve its objective.  The proceedings were on foot before the transfer and remain on foot afterwards.   It would only be if the transfer were equivalent to the institution of fresh proceedings that such a condition would achieve its purpose.   I do not consider that to be the case here.
29 I am of opinion that I do not have power to impose a condition of the kind referred to in the previous paragraph of these reasons. I consider that I have the power to transfer or not transfer but that there is nothing in the applicable legislation which authorises the imposition of a condition.  Even if I had such a power, I would decline to exercise it for the reason that the plaintiff instituted these proceedings within the applicable limitation period and that it has moved before the filing of a defence to seek an order for transfer.  Also, the defendant has not suffered any prejudice.
30 I order the transfer of these proceedings to the Supreme Court of Queensland.  I will hear the parties on the question of costs.