Jeffrey Noel Wilson v Leslie John Nattrass No. SCGRG 91/1014 Judgment No. 3945 Number of Pages 3 Practice and Procedure

[1993] SASC 3945

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Practice and procedure - Jurisdiction - Cross vesting - Application by plaintiff to transfer action to Supreme Court of Victoria - Related actions in Victoria - Whether appropriate to transfer - Application refused
Jurisdiction of Courts (Cross-Vesting) Act 1987, s.5(2). Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648, 662; Nilsen Industrial Electronics Pty Ltd v National Semi Conductor Corporation (1992) unreported decision of Ormiston J in Supreme Court of Victoria and Bourke v State Bank of NSW (1988) 85 ALR 61 at 77, applied.

HRNG ADELAIDE, 30 March 1993 #DATE 7:5:1993
Counsel for appellant:     Mr Greenwell
Solicitors for appellant:    Brown Aston Hamilton
Counsel for respondent:     Mr Rowell
Solicitors for respondent: Stratford and Co.

ORDER
Application refused.

JUDGE1 DEBELLE J This is an application to transfer an action from this Court to the Supreme Court of Victoria pursuant to s.5(2)(b)(i) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Act"). On 30 March 1993, I refused the application for reasons to be published later. I now publish my reasons. 2. The issues in this action arise out of a motor vehicle accident which occurred on 17 October 1990 near Yahl in the south-east of South Australia, when a motor vehicle being driven by the plaintiff collided with a motor vehicle being driven by the defendant. The plaintiff suffered very severe head injuries in the accident which have caused him severe brain damage. He was hospitalised for over a month and then was transferred to the Julia Farr Centre where he remained until 10 March 1992, when he returned to his home in Victoria. The plaintiff is now in a wheelchair and it is likely that he will be confined to a wheelchair for the rest of his life. It appears that he will require constant supervision and assistance with all aspects of his living for rest of his life. On 21 September 1992 he commenced this action. The action can be heard in either Mount Gambier or Adelaide. 3. The plaintiff's mother and father were passengers in the motor vehicle which he was driving when the accident occurred. They also suffered severe injuries in the collision and now have significant residual disabilities. The plaintiff resides with his parents on a farm property at Mumbannar in Victoria. Mumbannar is some 45 kilometres from Mount Gambier. His present intention is to continue to reside with his parents. 4. The same solicitor acts for both the plaintiff and his parents. His practice is in Mount Gambier. On 26 March 1992 each of the parents had issued separate actions against the defendant Nattrass out of the Warrnambool Registry of the Supreme Court of Victoria. No satisfactory reason has been proffered for the decision to issue the plaintiff's action in a different court from the court in which the parents instituted their action. None of the actions have been set down for trial because all three plaintiffs require operative treatment and the parties believe it is still too early to make an assessment of their future disabilities. 5. The application to transfer this action is grounded on the fact that it is related to the actions instituted by the plaintiff's parents, that it is desirable to retain one set of counsel to act for all three plaintiffs in their separate actions, and that there are a number of aspects of all three claims which are likely to overlap, in particular, evidence concerning the future medical care and attention of each of the plaintiffs. 6. In order to succeed on this application the plaintiff must satisfy the Court that the criteria in s.5(2)(b)(i) of the Act apply, namely, that the action is related to the two actions in the Supreme Court of Victoria and that it is more appropriate that the action be determined by that court. I do not approach the matter on the basis that the plaintiff has any onus to discharge. I am prepared to deal with the application on the footing that the plaintiff's action is related to those instituted by his parents. All three actions arise out of the same motor vehicle accident. The same witnesses will be called on the question of liability, if that remains an issue. Some of the witnesses who will be called on issues going to the assessment of damages will also give evidence which will be common to each of the plaintiffs. They are the witnesses who will give evidence as to the extent to which it will be necessary to make alterations to the existing house property or to build a new house to enable the plaintiff and his parents to continue to reside together. However, it must be noted, that in large part separate evidence will be necessary in relation to the assessment of damages for each plaintiff. 7. I turn to the question whether the Supreme Court of Victoria is more appropriate than this Court to determine the action. Factors which are relevant for consideration include the place where the parties reside or carry on business, the place where witnesses reside or carry on business, the place where other evidence is located, the desirability of avoiding unnecessary cost, and the law governing the questions which fall for determination in the action. The aim is to select the court which, in all the circumstances, will facilitate the course of the litigation: Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648, 662. The question whether one court is more appropriate than another might not merely involve questions of comparative suitability and convenience: Nilsen Industrial Electronics Pty Ltd v National Semi Conductor Corporation (1992) unreported decision of Ormiston J in Supreme Court of Victoria. Another material factor is the interests of justice. True it is that s.5(2)(b)(iii) requires the Court to have regard to the interests of justice but it is difficult to understand how the interests of justice can be fairly excluded from the determination of what is the more appropriate court. What is more appropriate for the purpose of s.5(2)(b)(i) may involve different considerations from those imported by the phrase "interests of justice". As Wilcox J observed in Bourke v State Bank of NSW
(1988) 85 ALR 61 at 77 the phrase "the interests of justice" should be ready widely. One factor relevant to the interests of justice is whether it is likely the actions will be heard earlier in one court: Bourke v State Bank of NSW (supra) at 77. 8. So far as the convenience of the parties is concerned there is little to choose between the action being heard in Mount Gambier or Warrnambool. The plaintiffs reside at a point which is in broad terms equi-distant from the two courts. The defendant also resides in the south-east of South Australia. Almost all the plaintiff's witnesses reside in Adelaide. More recently the plaintiff has consulted two experts in Victoria but the greater number of his witnesses reside or carry on business in Adelaide. The defendant's witnesses all reside or carry on business in Adelaide. So far as the convenience of witnesses is concerned there is little to choose between the action being heard in Mount Gambier or Warrnambool. However, if the action is heard in Adelaide, it will be plainly more convenient for the greater number of witnesses and far less expensive than a hearing in Warrnambool. 9. So far as a date of trial is concerned, there is no demonstrable advantage whether the action is heard in Mount Gambier or Warrnambool or Adelaide. 10. In the absence of any demonstrated convenience in the actions being heard in Warrnambool as opposed to Mount Gambier, the scales are fairly evenly balanced and there is little to suggest that one court is more appropriate than another to determine this action. 11. There is, however, a further factor which in my view does have the consequence that the Supreme Court of Victoria is not more appropriate than this Court to determine the action. The plaintiff's claim for damages will have to be assessed by reference to s.35(a) of the Wrongs Act 1936. Section 35 is still a relatively new provision and, without any sense of judicial chauvinism, it can be fairly said that it is more appropriate for a judge of this Court rather than a judge in another State to interpret and apply the provision. For that reason, I do not think it is more appropriate that this action be heard in the Supreme Court of Victoria. 12. There is another relevant factor. It is unusual for a plaintiff who has instituted an action in one court to seek to transfer his action to another. I am not aware of any reported decision where a cross-vesting application has been made by a plaintiff. Having selected the forum, the plaintiff should, as a general rule, be required to continue the action in that forum. The cross-vesting legislation was intended to be a means by which courts could avoid inconvenience and expense caused by jurisdictional limits of federal, State and Territory courts. The preamble to the Act expresses the intention that it is not intended to detract from the existing jurisdiction of any court and that, so far as practicable, proceedings concerning matters which, apart from the Act, would be entirely or substantially within the jurisdiction of a court should be finally determined in that court. The Act was not intended to provide a means by which a plaintiff could, if he chooses, transfer his action from one jurisdiction to another. It will only be in special circumstances that a plaintiff should be permitted to transfer his action particularly where, as here, the defendant has prepared his defence on the footing that the action will be heard in this Court. 13. For all of these reasons the application is refused.