Kloens v Builders North Pty Ltd

[2017] NSWSC 802

Supreme Court

New South Wales

Medium Neutral Citation:	Kloens v Builders North Pty Ltd and Anor. [2017] NSWSC 802
Hearing dates:	16 June 2017
Date of orders:	16 June 2017
Decision date:	16 June 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I dismiss the motion. The defendant is to pay the plaintiff’s costs of the motion.
Catchwords:	CIVIL PROCEDURE – interlocutory application – application for transfer under s 5 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – consideration of “the interests of justice” – where plaintiff suffered personal injury – collision with cow on roadway in course of employment – whether Supreme Court of Queensland “more appropriate” to hear the dispute – consideration of connecting factors – application dismissed COSTS – interlocutory application – application for transfer under s 5 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – defendant argues for costs in the cause – plaintiff argues that costs follow the event – the ordinary rule that costs follow the event applied
Legislation Cited:	Judiciary Act 1983 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Workers' Compensation and Rehabilitation Act 2003 (Qld)
Cases Cited:	BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221CLR 400 John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; 203 CLR 503 Pozniak v Smith [1982] HCA 39; (1982) 151CLR 38 Reid v Wright [2012] NSWSC 1149 Robinson v Shirley (1982) 149 CLR 132
Category:	Procedural and other rulings
Parties:	Peter Gerard Kloens (Plaintiff) Builders North Pty Ltd (Defendant)
Representation:	Counsel: L. King SC with T. McKenzie (Plaintiff) R. Morton (Defendant)   Solicitors: Stacks Law Firm (Plaintiff) Hopgood Ganim Lawyers (Defendant)
File Number(s):	2016/326552
Publication restriction:	Nil

EXTEMPORE JUDGMENT (Revised)

1. I am deciding an application to transfer these proceedings to the Supreme Court of Queensland under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The plaintiff sues the defendant, his sometime employer, for damages for personal injuries received on 15 October 2011. He was injured when the car he was driving in the course of his employment collided with a cow which had strayed onto the roadway. The accident happened on the Fitzroy Development Road some kilometres generally north of the town of Dingo in central Queensland. His injuries seem severe on the material available to me. He suffered a traumatic brain injury in conjunction with complex skull fractures. There are other injuries including a fracture of the transverse process at C7.

The issue

2. The question for determination in the present case, in accordance with s 5 of the Act, is whether “it is more appropriate” that these proceedings be determined by the Supreme Court of Queensland because that is in “the interests of justice”. Although the cross-vesting scheme has been in operation in the Australian states and Territories since 1987, the principles informing the exercise of the statutory power I have referred to were settled by the High Court of Australia in BHP Billiton v Schultz (2004) 221CLR 400. That, like many of the cases since, was a dust diseases case and the only connection with New South Wales was that the plaintiff's lawyers were resident here and had chosen to commence proceedings in the Dust Diseases Tribunal of New South Wales because of the very significant procedural advantages and efficiencies that Tribunal provides to persons who are suffering from often terminal, including imminently terminal, dust diseases.

Connecting factors with NSW

3. In the present case the plaintiff, as I shall refer to him, was what is referred to as a fly-in fly-out worker working in central Queensland. He was at all times resident in New South Wales. At the time of his accident he was resident in northern New South Wales and currently, because of his injuries, he resides in his original home of Nowra on the South Coast.

4. Medical evidence has been read outlining the nature of his injuries. I acknowledge that I have not seen any medical evidence on behalf of the defendant but Mr King of Senior Counsel, who appears with Mr McKenzie for the plaintiff, has acknowledged that there may be room for differences of medical opinion about the severity of the traumatic brain injury. Be that as it may, Dr Stephen Buckley, a rehabilitation specialist in this field, has rated the injury as very severe and Dr Langeluddecke, a neuropsychologist, has conducted neuropsychometric testing, the results of which, in her opinion, indicate significant defects in critical cognitive functioning.

5. The evidence of the plaintiff, which is not for present purposes challenged, is that he can travel only in the company of his partner who is his voluntary carer. His evidence also is that, his rights under the Queensland workers’ compensation legislation having expired, he is in receipt of Centrelink payments only. He says that were the case to continue in this Court he would be able to continue to reside at home and commute daily to and from Nowra by train for the purpose of proceedings here. He says that he doesn't have the financial wherewithal to support himself and his partner in Brisbane for the necessary duration of the case in the Queensland Supreme Court.

6. I have set out these details personal to the plaintiff at some length because these factors are perhaps the most significant factors which connect the case with the State of New South Wales. There are other matters. There is a witness who will be important on questions going to the system of work, Mr Tarrant, who also resides in New South Wales in the City of Goulburn. The plaintiff has been referred to for the purpose of the case, and for treatment medical practitioners who reside and practice in New South Wales.

7. The principles which inform the exercise of the statutory power were summarised with her Honour's characteristic clarity and brevity by McCallum J in Reid v Wright [2012] NSWSC 1149 at [5] to [13] and I acknowledge at the outset that the judgments of the justices in Schultz clearly establish that the preference of either party for a particular forum is of itself irrelevant and accordingly the fact that the plaintiff might prefer that proceedings continue here is something I will put to one side. I will not put to one side, however, the other matters I have referred to as to his personal circumstances which remain in my judgment relevant.

Connecting factors with Queensland

8. As Mr Morton of learned counsel who appears for the defendant has submitted, there are a large number of factors which connect the litigation with the State of Queensland. First amongst the matters propounded by counsel is the consideration that the lex loci delicti is the law of Queensland and included in the substantive law of Queensland in accordance with the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; 203 CLR 503 is of course the law of damages both statutory and common law which inform the assessment of damages in personal injury cases. Mr Morton has emphasised that in the judgments of the justices in Schultz, particularly the judgment of Gummow J with whom Hayne J agreed, the consideration that litigation is to be determined by reference to the law of a State is a significant connecting factor. Indeed, perhaps it can be said in the judgment of Callinan J it was thought in many cases at least capable of being a decisive factor. His Honour said in dealing with the various factors (at 493 [259]):

“But of at least equal importance to all of these is the fact that the events giving rise to the claim were at the time subject to, and regulated by the law of the jurisdiction where they occurred, and in respect of the evaluation of which the court of that place should be the most experienced and efficient".

His Honour also made reference to related matters including the place where insurance policies had been effected and the like. As Mr Morton points out the defendant company which carries on business in Queensland is insured under the statutory scheme in Queensland.

9. The other factors which the defendant points to include, as I have said, the fact that the defendant conducts its business in Queensland. There are eye witnesses to the collision of which the plaintiff has no recollection because of his brain injury who were in a following vehicle. Those witnesses, who I accept are likely to be essential witnesses in the litigation, reside in the town of Emerald, not far from where the accident happened. It is possible, although perhaps less likely, that there would be other witnesses in Queensland. I accept that the evidence of the employer is likely to be significant but the evidence of ambulance officers, paramedics and police officers in the particular circumstances of the case are likely to be less crucial, so far as I can tell. There are also medical practitioners in Queensland and it would be the intention of the defendant to have Queensland based medical experts assess the plaintiff.

10. Now, that brings me to a particular matter which is related to the lex loci delicti limb of the argument. There is a particular regime for the assessment of general damages in personal injuries cases including employers’ liability cases in Queensland which is different from the law in New South Wales. Indeed, I think it can be said that the laws of the various States and Territories relating to personal injury damages each adopt parochial approaches to modifying the previous common law by reducing and restricting the availability of certain heads of damages.

11. So far as industrial injuries are concerned, in Queensland the relevant scheme is governed by the Workers' Compensation and Rehabilitation Regulation 2003 made under the Workers' Compensation and Rehabilitation Act 2003 (Qld) and it prescribes a very detailed methodology for the assessment of general damages in work injury cases. As the objectives of the scheme expressly state, the purposes are consistency between assessments of general damages awarded by courts for similar injuries, and similar assessments of general damages awarded by courts with different types of injuries that have a similar level of adverse impact on an injured worker. Mr Morton submits, doubtless correctly, that judges in Queensland are likely to have a readier familiarity with these provisions than judges elsewhere in Australia including New South Wales.

12. Moreover, to the extent to which there are requirements for assessing impairment prescribed for different types of injury, Queensland doctors are likely to be more familiar with the local requirements than doctors practising in New South Wales. Mr Morton referred also to AMA5 and the PIRS System which apply in Queensland to the assessment of psychiatric impairment. The plaintiff has significant psychological consequences to his physical injuries. That material however is likely to be familiar to doctors in New South Wales as similar schemes are applicable here in relation to the assessment of psychiatric impairment.

13. With respect, I accept the argument of Mr King that if one looks at the provisions of the regulation it provides a very detailed, clear explanation for the various steps that must be taken to assess an injury scale value for the assessment of damages in a given case of personal injury. From my, albeit limited, previous experience with a similar regulation under the civil liability regime in Queensland it is, I think it can be fairly said, a formulaic approach, the purpose of which, in accordance with the objectives I have referred to, is to reduce the imprint of the Chancellor's foot in the assessment of general damages in these cases. And with respect, acknowledging the expertise of Queensland judges in this area, the matter is capable of digestion and comprehension by judges in New South Wales.

Decision

14. It is certainly true that if one counts up the various factors including the question of convenience, or rather inconvenience, to witnesses there are more connecting factors that connect this litigation with Queensland than with New South Wales. But of course it is not suggested that the decision is to be made by counting heads. What is required is an evaluative judgment in the circumstances of a given case to determine, as I have said, which of two competing fora is the more appropriate forum having regard to the interests of justice in a general sense.

15. With respect, Mr Morton laid emphasis upon Gummow's J judgment in Schultz. His Honour in turn placed great weight upon the decisions of the High Court in Robinson v Shirley (1982) 149 CLR 132 and Pozniak v Smith (1982) 151 CLR 38. Those cases are concerned with the principles, or rules of practice anyway, informing the exercise of the power to remit to the Supreme Court of a State proceedings commenced in the original jurisdiction of the High Court in accordance with the provisions of s44 of the Judiciary Act 1983 (Cth) as it then stood. There is no doubt that those decisions indicate a preference for what might be referred to as an almost invariable rule that the cases should be remitted to the state where the accident occurred, particularly in cases where the relevant law in competing jurisdictions is materially different in its effect on the rights of the parties; one might say, rights and obligations of the parties.

16. In Pozniak, the plaintiff sought remittance to New South Wales where the law of damages informing personal injury cases was more generous than the then law in Queensland. The significance of that matter is that at that time before the current law was settled by Pfeiffer v Rogerson, the rule was that the law of damages was a matter of procedural law, not substantive law, and the law of the forum applied. Indeed it is evident that the justices were concerned that there should be no forensic windfall or advantage arising out of a procedural decision to remit with a corresponding disadvantage to the defendant.

17. Without in any way underestimating the significance of this reasoning as informing Gummow J's approach and acknowledging the obvious that I am bound by the approach of the High Court in Schultz, it seems to me that the consideration that the lex loci delicti governs this case both as to questions of liability and damages may mean that the Pozniak considerations are not necessarily as significant in a given case as they were at the time that decision was made in the context in which it was made.

18. There are other factors which were mentioned by counsel. It seems to me that there is no particular aspect of delay in this case. It would seem, although there is a disagreement between counsel about the likely length of the hearing, that there is unlikely to be any significant delay whether the matter remains here or goes to Queensland. Both Courts apparently can provide hearing dates at around the same time bearing in mind the date of the accident.

19. Moreover, both Courts are probably in a position to accommodate the convenience of lay and expert witnesses by way of taking evidence by audio visual link, or perhaps simply by telephone. Indeed Mr Morton informs me that the almost invariable practice in the Supreme Court of Queensland is that medical experts give evidence individually rather than concurrently, and by telephone. It is, of course, the general practice in the Common Law Division that expert evidence in personal injury cases is taken concurrently. That would create difficulties and inconvenience if the matter remained here. If that general practice was insisted upon in the case, it would make it very difficult for the defendant to bring expert witnesses from Queensland to give evidence concurrently with expert witnesses resident in New South Wales. As I have said, however, that is a general rule of practice, and in appropriate circumstances there are exceptions to it easily satisfied and this may be such a case. It seems to me that looking at case management and procedural considerations there is no real difference between the Supreme Court of Queensland and this Court.

20. I return then to the plaintiff's situation. His level of impecuniosity extends to the consideration that it would be, quite apart from his injuries, almost impossible financially for him to support himself and his partner in Brisbane while the case ran, let alone, I suppose, afford the airfares to get there. I can well understand that people reduced to reliance upon social security would be in that position. Now, Mr Morton points out that if the evidence of other witnesses can be given by AVL, so can the evidence of the plaintiff. The plaintiff has no recollection of the incident itself and so his evidence on liability may be limited. Generally he will be giving evidence about damages. I accept that can be done but it seems to me to be fundamental not only that judicial power be exercised in public but the persons most affected by it, that is to say, the parties, are entitled to be present throughout the hearing of the case, statutory exceptions aside, like those commonly made for interlocutory applications in criminal cases for persons in custody. But that rule of natural justice, it seems to me, is an important consideration when one is referring to the interests of justice in a given civil case.

21. Doubtless there is no easy answer in this case. As I have said, dust diseases cases often will decide themselves because there is generally no connection with New South Wales other than the preference for the procedures in the DDT. In the circumstances of this case, however, I am of the view that notwithstanding all that can be, and has been ably, said in favour of a transfer, the interests of justice suggest that given what I have said of the plaintiff's personal circumstances, this Court is the more appropriate forum for the determination of the case and I dismiss the motion.

[His Honour heard further from counsel concerning costs]

22. The plaintiff applies for costs of the application, which the defendant opposes suggesting that the proper order to make in the circumstances is that the costs of both parties stand as costs in the cause. There was certainly no unreasonableness about the defendant's application. The application was properly brought and efficiently conducted and as my reasons doubtless disclose there was much to be said for it.

23. However, accepting all of that it seems to me that the application was brought, it was contested and that the plaintiff has been successful. I can see no reason why the general rule should be displaced in this case and accordingly costs should follow the event I order the defendant to pay the plaintiff's costs of the application.

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Decision last updated: 20 June 2017