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)

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

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…

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 Kloens v Builders North Pty Ltd

Details

AGLC: Kloens v Builders North Pty Ltd [2017] NSWSC 802
Case: [2017] NSWSC 802
Decision Date: 16 June 2017

CaseChat Overview and Summary

Kloens, the plaintiff, brought an action against Builders North Pty Ltd, the defendant, in the Federal Circuit Court of Australia following an accident where the plaintiff suffered personal injuries in a collision with a cow on a roadway while in the course of his employment. The defendant, Builders North, applied for the case to be transferred to the Supreme Court of Queensland under section 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The plaintiff opposed the transfer and, in the alternative, sought an order for costs on an indemnity basis. The court needed to determine whether the Supreme Court of Queensland was a more appropriate forum to hear the matter and whether costs should be awarded on an indemnity basis.

The court considered the "interests of justice" as the primary consideration for the transfer of the case. The court found that the Federal Circuit Court of Australia was the appropriate forum to hear the matter, as the connecting factors did not strongly favour the Supreme Court of Queensland. In determining the costs, the court applied the ordinary rule that costs follow the event, which meant that the plaintiff was entitled to costs from the defendant.

The application for transfer was dismissed, and the plaintiff was awarded costs from the defendant on the standard basis. The court did not grant the plaintiff's request for indemnity costs. The decision confirmed that the Federal Circuit Court of Australia was the appropriate forum to hear the matter, and that the ordinary rule of costs should apply in this instance.

Orders