Hollingsworth v District Council of Grant
[2022] VSC 289
•13 May 2022 (ex tempore revised 2 June 2022)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BENDIGO
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S ECI 2021 00052
| DONALD STEPHAN HOLLINGSWORTH | Plaintiff |
| v | |
| DISTRICT COUNCIL OF GRANT | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 May 2022 |
DATE OF RULING: | 13 May 2022 (ex tempore revised 2 June 2022) |
CASE MAY BE CITED AS: | Hollingsworth v District Council of Grant |
MEDIUM NEUTRAL CITATION: | [2022] VSC 289 |
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PRACTICE AND PROCEDURE – Application to cross-vest the proceeding to the Supreme Court of South Australia – Whether the necessity of view is a sufficient connecting factor – Whether there has been unacceptable delay in bringing the application – Whether hardship caused to the plaintiff is a sufficient connecting factor - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) - Baker v Morona & Ors [2021] VSC 643 - Tasmanian Land Company v Van Dairy Group Pty Ltd [2018] VSC 618 - BHP Billiton Ltd v Schultz (2004) 221 CLR 400.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C P Locke | Arnold Dallas McPherson |
| For the Defendant | Mr A Harris, QC | Duddy Shopov |
TABLE OF CONTENTS
Evidence............................................................................................................................................... 1
Background......................................................................................................................................... 1
Procedural history......................................................................................................................... 3
Defendant’s submissions................................................................................................................. 3
Plaintiff’s submissions..................................................................................................................... 5
Applicable principles........................................................................................................................ 7
Analysis.............................................................................................................................................. 10
Conclusion......................................................................................................................................... 12
HER HONOUR:
The defendant applies to have this proceeding transferred to the District Court of South Australia sitting at Mount Gambier. The plaintiff opposes the application.
I dismissed the cross-vesting application at the conclusion of submissions on the hearing day. I now record my reasons.
Evidence
The defendant relies on an affidavit of its solicitor, Claire Marie Victory, sworn on 14 April 2022 (‘Victory affidavit’).
The plaintiff relies on his own affidavit affirmed on 10 May 2022 (‘Hollingsworth affidavit’) and an affidavit affirmed by his solicitor, David Stephen Velleley, on 10 May 2022 (‘Velleley affidavit’).
Background
The plaintiff, Mr Donald Hollingsworth, pleads that the defendant, District Council of Grant, caused him injury, loss and damage as a result of negligence.[1]
[1]Statement of Claim filed on 11 January 2021 (‘Statement of Claim’).
On 1 August 2018, the plaintiff delivered a load of cattle to the Mount Gambier and District Sale Yards (the ‘saleyards’).[2] He deposes that he unloaded the cattle onto a ramp and though a gate into the saleyards.[3] Further, that when unloading the cattle off his truck, he sustained a crush injury to his right arm, shoulder, and chest.[4]
[2]Hollingsworth affidavit, [2].
[3]Ibid.
[4]Ibid.
Following the injury, the plaintiff deposes that he was taken by ambulance to Mount Gambier Hospital. He deposes that he and was treated in the casualty department, but not admitted.[5] The plaintiff deposes that he returned to the Mount Gambier Hospital the next day and was cleared to travel back to his home in Strathfieldsaye (Victoria) under the care of his partner.[6]
[5]Ibid, [3].
[6]Ibid, [5].
After about two weeks of recovering at home, the plaintiff deposes that his right arm and shoulder did not ‘feel right’ and he consulted his general practitioner in Bendigo, Dr Asaid, who ordered an MRI scan.[7]
[7]Ibid, [7].
Following the MRI scan results, Dr Asaid referred the plaintiff to Mr Glenn Boyce, Orthopaedic Surgeon.[8] Mr Boyce recommended that the plaintiff undergo surgery on his right shoulder. This surgery was performed on 10 September 2018 at the St John of God Hospital in Bendigo.[9] The plaintiff deposes that he continued to be treated by Mr Boyce in Bendigo for physiotherapy and hydrotherapy.[10]
[8]Ibid, [8]-[9].
[9]Ibid, [10].
[10]Ibid, [11].
The plaintiff deposes that since 2 August 2018, all his treatment for the injury has been in Bendigo.[11]
[11]Ibid, [13].
The plaintiff deposes that it would cause significant physical and financial hardship if the proceeding is transferred to South Australia and heard at Mount Gambier.[12] The plaintiff deposes that he is right-hand dominant and gets pain and discomfort when driving for more than two hours.[13] He deposes that, if the proceeding is transferred to South Australia, he would need to be driven from Strathfieldsaye to Mount Gambier.[14] This is approximately 400 kilometres and a three-four hour drive.[15]
[12]Ibid, [17].
[13]Ibid, [12], [15].
[14]Ibid, [18].
[15]Ibid.
The plaintiff deposes that he would need to be away from his home to attend the hearing and would need the support of his partner to travel, which would cause difficulty for them.[16]
[16]Ibid, [19].
Procedural history
This proceeding commenced on 11 January 2021 by way of writ in the Civil Circuit List.[17]
[17]Writ filed on 11 January 2021.
On 5 July 2021, Baker JR made timetabling orders by consent, listing the proceeding for trial in the second Bendigo circuit sittings in 2022 for a duration of five-seven days.[18]
[18]Order of Baker JR in Hollingsworth v District Council of Grant (Supreme Court of Victoria, S ECI 2021 00052, 5 July 2021) (‘5 July 2021 consent orders’).
The proceeding was mediated on 22 February 2022 and did not resolve. The parties also attended a settlement conference.
Mr Velleley deposes that the defendant had not informed or suggested to the plaintiff that it was intending to seek an order to transfer the proceeding to South Australia until 15 March 2022.[19]
[19]Velleley affidavit, [8]-[9].
On 20 April 2022, the defendant filed a summons seeking an order that the proceedings be transferred to the District Court of South Australia pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act1987 (Vic).
Defendant’s submissions
This application was first raised with the Court in March 2022, after being raised with the plaintiff’s solicitors several days earlier. The defendant accepts that the timeliness of this application is a relevant factor. Delay may be relevant to the consideration of the administration of justice, especially where actions have been taken and expenses incurred on the assumption that it would proceed in the forum where the action was commenced. Here, delay is not relevant to the administration of justice.
The lateness of this application should not be a decisive factor for the following reasons.
The alleged wrong occurred in South Australia. The legislation under which the plaintiff has brought his claim is South Australian, namely, the Civil Liability Act 1936 (SA). The saleyards are located in Glenburnie, South Australia, which is approximately 10 kilometres from Mount Gambier.[20] The defendant expects to call three witnesses.[21] All three witnesses reside and work in the Mount Gambier region of South Australia.[22]
[20]Ibid, [4]-[5].
[21]Ibid, [9].
[22]Ibid, [10].
Enquiries with the South Australian Courts Administration Authority have revealed that the District Court of South Australia will be sitting in Mount Gambier in November 2022.[23]
[23]Ibid, [12].
The decision to cross-vest is not discretionary. The question is whether it is in the interests of justice for the proceeding to be transferred to South Australia, with reference to the connecting factors described above.
When considering how the trial would proceed, the connecting factors to South Australia are compelling. The incident giving rise to the claim occurred in South Australia and the defendant is located in Mount Gambier, South Australia. The applicable law is the law of South Australia.
The defendant considers that a view of the site of the saleyards is essential. There is no evidence before the Court to support the plaintiff’s assertions that the saleyards have materially changed since the incident. Counsel’s instructions were that work has been done following the incident, but the site has not materially changed. The nature of the work done to the saleyards bears on the issue of causation, and whether any such work done in response to the incident would have made any difference to the plaintiff suffering any injury. Counsel referred to remarks made in Baker v Morona with respect to a view.[24] Realistically, if the trial remains in Bendigo, a view would not be possible. The question of the view is determinative.
[24][2021] VSC 643, [66] (‘Baker’).
If the proceeding were transferred to South Australia, the defendant would meet expenses incurred by the plaintiff by way of travel and accommodation, and would also meet the expenses incurred by his partner to the extent that he requires her support.
The plaintiff deposes to difficulty driving greater than two hours, which is clearly a relevant consideration because his residence is much closer to Bendigo than to Mount Gambier. The plaintiff also deposes to having had to cease interstate truck driving. However, this does not prove he is incapable of riding in a car for longer periods. If the trial judge determined that a view was necessary, the plaintiff would need to make the trip to Mount Gambier.
Another factor is the location of various expert witnesses. The plaintiff’s treating orthopaedic surgeon and two other specialists are located in Victoria, which clearly connects the proceeding to Victoria. However, the COVID-19 pandemic has improved the Court’s ability to hear evidence electronically, especially for professional witnesses.
In reply to the plaintiff: there is utility in a view. There was an investigation of SafeWork South Australia (‘SafeWork SA’) by the Ombudsman. The investigation concerned the timeliness of SafeWork SAs response to the complaints made by the Livestock and Rural Association Victoria. The Ombudsman produced a detailed report which was focussed on something very different from the plaintiff’s claim. It is incorrect to say that the issue was entirely investigated such that a view is unnecessary.
In reply to the plaintiff: the District Court of South Australia has unlimited jurisdiction. There is a mechanism by which the Supreme Court of South Australia can direct that a matter be heard in the District Court. This would add an additional step in the transfer process. This step is the missing link in the defendant’s affidavit material.
Plaintiff’s submissions
There was a fundamental flaw in the summons, which seeks transfer to the District Court of South Australia. The Supreme Court of Victoria only has jurisdiction to transfer a proceeding to the Supreme Court of another state. The Court has no jurisdiction to make the orders sought in the summons and the application should be dismissed on that basis.
There is significant connection between the subject matter of this proceeding and Victoria. The plaintiff’s medical assessments and treatment following his injury occurred in Victoria. A number of the plaintiff’s witnesses are located in Bendigo, Australia. The plaintiff intends to rely on the evidence of Mr Boyce. He performed surgery on the plaintiff at the St John of God Hospital in Bendigo.[25] The plaintiff was examined for medico-legal purposes by two medical specialists who are based in Melbourne. They are Dr David Kennedy, sports and industrial physician and Dr Murray Stapleton, plastic and hand surgeon.[26] The plaintiff’s law firm is based in Bendigo, Victoria.[27] The plaintiff resides in Victoria.
[25]Velleley affidavit, [12].
[26]Ibid, [11].
[27]Ibid, [13].
The saleyards have materially changed since the incident and a view would be of limited utility.
The Civil Liability Act 1936 (SA) will be applied in the determination of this matter, save to the extent that s 22 is applicable. It is uncertain if s 22 is applicable and accordingly uncertain if the liability issue will be determined by the Civil Liability Act 1936 (SA). Otherwise, the common law of Australia will apply.
There has been delay in making this application. The defendant filed an unconditional appearance in February 2021 and the defendant signed consent minutes in July 2021. There was no issue raised about transferring the proceeding to South Australia until March 2022. The Victory affidavit provides no explanation for the delay.
There is a risk of further delay if the proceeding is transferred to South Australia. Currently, the proceeding is listed for callover in October 2022 in the Supreme Court of Victoria at Bendigo. There is a reasonable possibility that the trial could be heard at that time. The defendant has not adduced any evidence about a likely hearing date in the Supreme Court of South Australia.
The incident occurred in South Australia, which is a factor connecting the proceeding to South Australia. The plaintiff resides near Bendigo, which connects the proceeding to Victoria.
Bendigo is the most convenient forum for the plaintiff. He has undergone extensive medical treatment and his treating surgeon is located in Bendigo. As outlined above, the plaintiff’s expert witnesses are based in Victoria. The plaintiff has adduced evidence of difficulties with driving for more than two hours at a time. Mt Gambier is a three‑four hour drive from Bendigo. The plaintiff would suffer hardship if the proceeding was transferred.
Regarding the view, technology means that it is no longer necessary to visit the site. The relevant area of the saleyards has materially changed. The relevant points at the saleyards are the ramps where the cattle are offloaded. Some of the ramps were fitted with a safety gate device which would have prevented the incident from occurring. After the incident, a safety gate facility was installed on the ramp in question.
In Baker, the defendant’s application to cross-vest was unsuccessful. Here, there are additional factors weighing against cross-vesting. For example, in Baker, there was evidence that the trial could be heard in a timely manner, which is not the case here. Further, the application in Baker was made early in the proceeding: defences had not been filed. In this case, the application has been made late in the proceeding.
Applicable principles
Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) follows:
(2) 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)it appears to the first court that–
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;
(ii)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;
(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 sub-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
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court.
In Tasmanian Land Company v Van Dairy Group Pty Ltd,[28] Kennedy J set out the authorities as follows:
[28][2018] VSC 618.
In the High Court case of BHP Billiton Ltd v Schultz (Schultz), the Court highlighted that the cross-vesting legislation requires a court to ensure that cases are heard in the forum dictated by the interests of justice. No question of discretion arises. Rather, the court is required to consider which forum is the ‘natural forum’ on the basis of a consideration of relevant ‘connecting factors’, which do not include the plaintiff’s choice of forum.
In Irwin v State of Queensland (Irwin), a decision of Robson J of the Supreme Court of Victoria, his Honour considered the decision of Schultz as well as a decision of Gillard J in Ewins v BHP Billiton Ltd. His Honour then helpfully set out the relevant principles, which include:
(a)The Act requires that the [first] court should exercise the power of transfer whenever “it appears” that it is in the interests of justice that it should be exercised.
(b)It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.
(c)The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.
(d)The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.
(e)The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.
(f)It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. Rather the jurisdiction must be exercised when “it appears” to the court that “it is in the interests of justice” that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued. Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.
(g)The court should adopt what has been described as a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.
(h)The appropriate court is the natural forum as determined by connecting factors to that forum.
(i)Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.
(j)In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.
...
(o)The plaintiff’s choice of forum by itself is not a relevant connecting factor.
(p)Each case depends on its own particular facts.
...[29]
[29]Ibid [36]–[37] (citations omitted).
It is common ground that the principles cited above, and also cited in Baker, are applicable. I accept the plaintiff’s submissions that there are facts differentiating this application from Baker. In particular, the application here is made much later in the proceeding than in Baker.
Analysis
There are a number of significant factors connecting this proceeding to Victoria, and a limited number of factors connecting it to South Australia. Taking a ‘nuts and bolts’ approach, the interests of justice dictate that the proceeding should remain in Victoria for the following reasons.
Firstly, there has been inordinate delay in making this application. The defendant made it more than one year after commencement of proceedings, and about eight months after it was listed for trial in Bendigo by the 5 July consent orders. The defendant provided no explanation for their delay in making the application.
If the proceeding was transferred, the plaintiff would lose the trial date. It is unknown when the proceeding would be listed for trial in South Australia. Section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) requires that a proceeding commenced in the supreme court of one state may be transferred to a supreme court of another state. In this case, once the proceeding was transferred to the Supreme Court of South Australia, the defendant would then need to apply for it to be transferred to the District Court of South Australia. There is no evidence before me that this could occur in time for the circuit listed in Mount Gambier in November 2022.
Secondly, I accept the plaintiff’s evidence that he cannot travel for long distances in a car due to his injury.[30] I accept his evidence that it would cause him significant physical and financial hardship. By its counsel, the defendant agreed to pay for the plaintiff’s expenses incurred as result of travel, should the proceeding be transferred to South Australia. Whilst this may alleviate some financial hardship for the plaintiff, the issue of the physical hardship of car travel remains.
[30]Hollingsworth affidavit, [17].
Thirdly, on balance, there is a preponderance of factors connecting the proceeding to Victoria. It makes geographic sense for the proceeding to remain listed in Bendigo rather than being transferred to Adelaide (and then perhaps transferred to the District Court sitting at Mt Gambier). The plaintiff lives near Bendigo, in Strathfieldsaye. I anticipate that his evidence will be central to this proceeding. The plaintiff’s medical witnesses are located in Bendigo or otherwise in Melbourne. The offices of his law firm are in Bendigo. On the other hand, the defendant intends to call three witnesses (unnamed) to give evidence relating to the operation of the saleyards and how the incident occurred: two remain employed by the defendant, including one who continues to work at the premises. All three still live and work in the Mt Gambier region.[31] The defendant itself is located in South Australia. On balance, the geographical factors favour the proceeding remaining in Bendigo. I should add that whilst electronic evidence may be given, this is a neutral factor as both Supreme Courts will have facility for receiving such evidence.
[31]Victory affidavit, [9]-[10].
Fourthly, the incident occurred in South Australia: in Glenburnie, approximately 10km east of Mt Gambier. This is a connecting factor with South Australia. This is a common law claim and “there is a single common law of Australia”.[32] The Civil Liability Act (SA) may be applicable. However, it was not suggested that there would be any forensic or juridical advantage to either party by the proceeding remaining in Victoria. Whilst the Supreme Court of South Australia would have more expertise and experience in applying the Civil Liability Act (SA), both Courts have significant expertise and experience in determining personal injury claims. This factor is not, on its own, determinative of the application. It is outweighed by the other factors above.
[32]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 518.
Fifthly, I reject the defendant’s submission that South Australia is the more appropriate forum for this proceeding given that a view of the ramp at the saleyards may be necessary. This is not itself a determinative factor. If a view is required, this does not warrant transfer of the proceeding to South Australia. The Court and parties could fly to Mount Gambier to attend the saleyards. As to whether or not a view is required, and if so whether or not the plaintiff needs to attend the view: that is a matter for the trial judge to decide.
Importantly, the defendant’s summons sought leave to transfer the proceedings to the District Court of South Australia. The Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) does not allow transfer from the Supreme Court of Victoria to a district court of another State. Accordingly, the orders sought by the defendant in the summons could not be made. I have however determined this application presuming that there was error on the part of the defendant in the drafting of the summons, and that it intended to seek transfer to the Supreme Court of South Australia and then make application there for transfer to the District Court sitting in Mt Gambier. Given my findings above, there was no utility in providing leave to amend the summons.
Conclusion
The defendant’s application will be dismissed. This proceeding will be listed for callover in the Supreme Court of Victoria at Bendigo.
I heard submissions on costs and gave an ex tempore ruling. The defendant is to pay the plaintiff’s costs of and incidental to this application on an indemnity basis.
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