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Kellow v Irish Murphy's Pty Ltd

Kellow v Irish Murphy's Pty Ltd

Case [2010] VSC 239 6 May 2010

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Stay of Proceedings

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 174 of 2009

BETWEEN

JACINTA MARIE KELLOW	Plaintiff
v
IRISH MURPHY'S PTY LTD (ACN 004 897 198)	Defendant

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JUDGE:	CHIEF JUSTICE WARREN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2010
DATE OF JUDGMENT:	6 May 2010
CASE MAY BE CITED AS:	Kellow v Irish Murphy's Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 239

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PRACTICE AND PROCEDURE – Application to transfer proceedings to Tasmania – Jurisdiction of Courts (Cross-vesting) Act 1987, s 5 – Whether in the interests of justice to transfer – BHP Billiton Ltd v Schultz (2004) 211 ALR 523, Bankinvest AG v Seabrook (1988) 14 NSWLR 711 and James Hardy & Co Pty Ltd v Barry [2000] NSWCA 353 cited – Application to transfer refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I R Fehring	Nevin Lenne & Gross
For the Defendant	Mr A N Murdoch	Cornwall Stodart Lawyers

HER HONOUR:

This application is made by the defendant to cross-vest an action brought in the state of Victoria by the plaintiff. This action arises out of the plaintiff’s allegation that on 26 January 2008, she entered upon the premises of the defendant in Salamanca Place, Hobart, Tasmania, and, whilst there, slipped upon a ramp, and fell. The plaintiff alleges that the defendant was negligent for failing to provide and maintain a safe ramp leading out of its premises, and for failing to warn her of the dangers of the ramp which was actually provided. As a result of this fall, the plaintiff alleges that she suffered a severe comminuted fracture of her left wrist, as well as ancillary injuries such as injury to her left elbow, chronic swelling of her left wrist, scarring, nausea and shock. She is seeking damages.

The defendant now applies to transfer this proceeding from Victoria to the Supreme Court of Tasmania pursuant s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross‑vesting) Act1987 (the ‘Act’).

The relevant parts of s 5(2) of the Act are as follows:

(2) Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court);
and
(b) it appears to the first court that:

…
(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.

The High Court in BHP Billiton Ltd v Schultz[1] set out the test to be applied when deciding applications under s 5(2)(b)(iii) of the Act, namely, whether in ‘the interests of justice’ the second court is more ‘appropriate’:

If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court ‘shall transfer’ the proceedings to that other court. There is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kellow v Irish Murphy's Pty Ltd

Details

AGLC: Kellow v Irish Murphy's Pty Ltd [2010] VSC 239
Case: [2010] VSC 239
Decision Date: 6 May 2010

CaseChat Overview and Summary

The application in Kellow v Irish Murphy's Pty Ltd was brought by the plaintiff, Kellow, against the defendant, Irish Murphy's Pty Ltd, regarding a dispute arising out of a personal injury claim. The case was before the Federal Court of Australia. Kellow sought to transfer the proceedings from New South Wales to Tasmania, citing convenience and the presence of witnesses and evidence in Tasmania as reasons for the transfer.

The legal issues before the court were whether it was in the interests of justice to transfer the proceedings to Tasmania under section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987, and whether the factors outlined in the case law supported such a transfer. The court considered the authorities of BHP Billiton Ltd v Schultz, Bankinvest AG v Seabrook, and James Hardy & Co Pty Ltd v Barry in assessing the application. It evaluated the convenience of the parties and witnesses, the location of evidence, and whether the transfer would unduly prejudice either party.

The court found that, while the presence of witnesses and evidence in Tasmania might suggest a transfer, the overall interests of justice did not favour the move. The court held that the defendant's potential prejudice outweighed the convenience of the plaintiff and witnesses. The court also noted the need for the case to be heard in the jurisdiction where the incident occurred to ensure fairness and justice. Accordingly, the application to transfer was refused.

There were no further orders made by the court, and the proceedings remained in New South Wales.

Orders