Littlewoods Civil Contracting Pty Ltd v Brodrick
[2013] NSWSC 1939
•17 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Littlewoods Civil Contracting Pty Ltd v Brodrick [2013] NSWSC 1939 Hearing dates: 17 December 2013 Decision date: 17 December 2013 Jurisdiction: Common Law Before: Adamson J Decision: (1)Summons dismissed
(2)Order the plaintiff to pay the defendant's costs
Catchwords: PRACTICE AND PROCEDURE: Transfer of proceedings -cross-vesting scheme -interests of justice Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 Category: Interlocutory applications Parties: Littlewoods Civil Contracting Pty Ltd
ACN 101 924 369 (Plaintiff)
Gregory Brodrick (Defendant)Representation: Counsel:
P Nolan (Plaintiff)
A J Stone with N Crompton (Defendant)
Solicitors:
Sparke Helmore (Plaintiff)
John McGuire & Associates (Defendant)
File Number(s): 2013/244071 Publication restriction: Nil
Judgment
In this matter the plaintiff seeks transfer of proceedings commenced by the defendant in the New South Wales District Court to the Supreme Court of the Australian Capital Territory pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987.
The plaintiff's summons filed on 12 August 2013 was supported by the affidavit of Mitchell John Strachan affirmed 7 August 2013. In his affidavit Mr Strachan deposes to the circumstance that the accident (the subject of the proceedings) occurred on 22 July 2011 at a job site in Dickson in the ACT. The applicable law is, accordingly, the law of the Australian Capital Territory.
The plaintiff company is registered in the Australian Capital Territory and the two directors of the company, who are both company secretaries, live in the ACT and New South Wales. The truck which the defendant was required to drive as part of his work duties was registered in the Australian Capital Territory and located in Lyneham in the Australian Capital Territory. For the plaintiff's part the potential witnesses, as yet unidentified, are all located in the Australian Capital Territory or within close proximity of the Australian Capital Territory.
The defendant relies on two affidavits of its solicitor John McGuire of 23 September 2013 and 13 December 2013. Mr McGuire deposes to his experience in conducting personal injury claims on behalf of clients who reside on the New South Wales south coast. He deposes that, in his experience, New South Wales District Court judges are from time to time required to apply ACT law, having regard to their dealing with accidents that occurred in the ACT.
Mr McGuire also deposes that the statement of claim was filed on 7 December 2012, served on 19 December 2012 and listed for pre-trial conference on 6 March 2013. The defendant filed its defence on 11 February 2013. No application was foreshadowed at that time or until significantly later that the defendant in the District Court proceedings (being the plaintiff in these proceedings) objected to the matter being heard in the District Court at Nowra or would seek its transfer. The matter was listed for status conference before the Nowra District Court on 10 July 2013 but this was adjourned until 13 November 2013 because of treatment that the plaintiff was undergoing which included cervical spine surgery.
Mr McGuire deposes that the Nowra District Court civil sittings are held for one week a year. The next sittings will be in the week commencing 10 June 2013 which I am told is a short week because of the Queen's Birthday holiday.
Mr McGuire deposes that the plaintiff and his long-term de facto partner live in a suburb of Nowra which is approximately a five-minute drive from the Nowra Court House. The plaintiff's solicitor's office is located in Nowra. The plaintiff's treating general practitioner is also located in Nowra. The surgeon who performed the cervical spinal surgery on the plaintiff in July this year, Dr AL-Khawaja, resides in Wollongong, which is significantly closer to Nowra than the ACT. The plaintiff also underwent a right shoulder arthroscopy last year and his treating orthopaedic surgeon lives in Nowra. The medico-legal experts are substantially based in Sydney and it appears to be common ground that, generally speaking, the convenience of those persons is accommodated by courts permitting the evidence of such persons to be given by telephone.
The power to transfer from one State jurisdiction to another is provided for in the Jurisdiction of Courts (Cross-vesting) Act 1987. By s4 of the Act, the Supreme Court in each State has jurisdiction to hear any State matter. Section 8 allows for the removal into the Supreme Court of any State a matter that has been filed in another court of the State so that cross-vesting can occur out of the Supreme Court and this is what has occurred in the instant case by the filing by the plaintiff in these proceedings being the defendant in the District Court proceedings of a summons in this court.
Section 8 provides the mechanism for a transfer of proceedings from the court in which they were filed, in this instance the District Court at Nowra, into a court that has jurisdiction to effect the transfer, namely this Court. The relevant principles are provided for under s5(2) of the Act and provides relevantly that if it appears that it is in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory the first court shall transfer the relevant proceeding to that other Supreme Court. Accordingly the relevant test for present purposes is the interests of justice, which is regarded as a broadly based and flexible concept.
In the instant case "the interests of justice" require me to take into account the relative benefits and disadvantages to both of the parties of the matters being heard in either the District Court at Nowra or the ACT Supreme Court.
That the law to be applied is the law of the ACT slightly favours transfer to the ACT Supreme Court. However I would not be disposed to accept that there was any lack of ability on the part of District Court judges of Nowra to deal with what may only be nuanced differences between the applicable law in the ACT and the law that applies in New South Wales.
There is a slight procedural advantage in the matter being heard in the ACT Supreme Court in that the ACT Supreme Court sits permanently whereas the District Court in its civil jurisdiction generally sits in Nowra for only one week a year. Nonetheless, there is flexibility within the District Court. If a matter is not reached, it can be transferred to Wollongong or, if necessary, to Sydney to ensure that the parties do not have to wait a further year to have the matter determined. Both of these locations are more convenient for Mr Brodrick than Canberra.
The parties made submissions which would tend to invite a comparison between the relative efficiency of the ACT Supreme Court and the District Court of New South Wales. I do not consider it to be appropriate for me to express any opinion as to that matter.
In my view the most compelling reason against the transfer is that the defendant and his family live in Nowra and there is no particular corresponding advantage to the plaintiff in the matter being transferred to the ACT Supreme Court. By and large it is an important consideration in the access to justice that a plaintiff (the defendant in these proceedings) can choose the jurisdiction. This choice is of particular importance in the present case where Mr Brodrick will incur considerable costs of accommodating himself, his de facto and his young children in Canberra for the duration of the hearing. The costs and inconvenience to which he and his family will be subject does not appear to me to be outweighed by any concomitant convenience to the opposing party.
I am not satisfied that there is any compelling reason to transfer or that the interests of justice would be better served by a transfer. Accordingly the summons will be dismissed with costs.
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Decision last updated: 20 December 2013
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