Mackrill v The Salesian Society Incorporated; Murphy v The Salesian Society Incorporated
[2020] VSC 678
•14 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2020 00760
| ROBERT WAYNE MACKRILL | Plaintiff |
| v | |
| THE SALESIAN SOCIETY INCORPORATED | Defendant |
S ECI 2020 00747
| ANTHONY SHANE MURPHY | Plaintiff |
| v | |
| THE SALESIAN SOCIETY INCORPORATED | Defendant |
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JUDICIAL OFFICER: | Judicial Registrar Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 September 2020 |
DATE OF RULING: | 14 October 2020 |
CASE MAY BE CITED AS: | Mackrill v The Salesian Society Incorporated; Murphy v The Salesian Society Incorporated |
MEDIUM NEUTRAL CITATION: | [2020] VSC 678 |
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PRACTICE AND PROCEDURE – Application to transfer proceeding to South Australia – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5 – Whether in the interests of justice to transfer – Irwin v State of Queensland [2011] VSC 291 referred to – Where some or the majority of the alleged torts occurred in South Australia – Relevant connecting factors – Plaintiffs in South Australia – Majority of witnesses in South Australia – Applicable law is that of South Australia – Existence of trial date in Victoria not significant factor – Availability of jury trial not a relevant factor, or if it is, not a significant one here – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms L Whelan SC with Mr J Roland | Ken Cush & Associates |
| For the Defendant | Mr C Morshead | Colin Biggers & Paisley |
JUDICIAL REGISTRAR:
This is an application by the defendant in each of the two named proceedings to have the matter cross vested to South Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic).
The plaintiffs allege that they were the victims of historical sexual abuse by Brother Coffey at Salesian College in Port Pirie, South Australia. These proceedings are two of a group of seven proceedings issued in this Court in February 2020 by Ken Cush & Associates on behalf of individual plaintiffs relating to historical sexual abuse by Coffey at Salesian College in Port Pirie. The seven proceedings were listed for first directions in May 2020 and a case management conference was held. A common timetable was set for those cases, including a trial date of 13 July 2021. In the meantime, in May 2020 four further proceedings were issued in this Court by the same firm relating to historical sexual abuse by Coffey at Salesian College in Port Pirie.
In late July 2020, the defendant indicated its intention to seek that all 11 matters be cross vested to South Australia. I understand that the parties have agreed that the decision on the applications before me in these two cases will be followed in the remaining cases. These two cases were selected as representative of two types of cases within the group of 11 – those without a past deed of settlement, and those with a past deed of settlement.
I heard the applications on referral. At the conclusion of the hearing of the applications the plaintiffs sought a pseudonym order to protect their privacy. As the referral order did not extend to making pseudonym orders, I reserved my ruling on this application to allow the plaintiffs an opportunity to make that application. Ultimately, the plaintiffs did not make any application for pseudonym orders in either of these two proceedings, but did seek, and obtained, pseudonym orders in five of the related proceedings.
The defendant says that the interests of justice require that the cases be transferred to South Australia because:
(a) the torts alleged occurred in South Australia;
(b) none of the plaintiffs in the nine other related proceedings are located in Victoria, and these two plaintiffs are each located in South Australia;
(c) any relevant witnesses are likely to be in South Australia and the plaintiffs have engaged medico-legal experts in South Australia;
(d) whilst the common law of Australia is applicable, the Court will need to consider some South Australian legislation including the Civil Liability Act 1936 (SA) and the Limitations of Actions Act 1936 (SA) which a South Australian court will necessarily be more familiar with; and
(e) the plaintiffs’ desire for a jury trial is not an enforceable right that ought to be given any weight in considering this application.
The plaintiffs oppose the application on the following grounds:
(a) the plaintiffs have sought a jury trial and a jury trial is not available in South Australia;
(b) the plaintiffs now have a trial date in a Victorian Court and could not be guaranteed of a trial date at or around the same time in a South Australian court;
(c) the torts alleged against the defendant occurred in Victoria as the head office of the Salesian Brothers was at all times in Victoria and it was the Salesian Brothers who were responsible for making decisions about how the school was run; and
(d) in the case of Murphy, there is a past Deed of Release which establishes that any dispute about the deed is governed by the law of Victoria.
I am satisfied that, whilst the defendant has its head office in Victoria, it carried on business in South Australia and at the relevant time was engaged in running the school where Coffey was employed in Port Pirie. It seems likely that at least some of the tortious acts alleged in the pleading occurred in South Australia, even if some of them also occurred in Victoria as the plaintiff submits. The exact structure of the school, the chain of command within the school, and how communications from the school in Port Pirie back to head office in Victoria were undertaken, will ultimately be a matter of evidence. The plaintiffs plead that the defendant, by its agents or servants knew that Coffey presented a risk. The plaintiffs allege that the defendant, by its agents or servants failed to supervise or adequately supervise the plaintiffs. Given that the plaintiffs were at school in Port Pirie, the failures of supervision alleged are allegations, at least in part, against people in Port Pirie, including other staff at the school, the principal or the school, and the local Diocese. Therefore it must be that at least part of those tortious acts occurred in South Australia, not in Victoria.
The authorities support the notion that, if it is in the interests of justice to do so, the case must be transferred. In this regard the plaintiffs points to the certainty of the trial date set in this Court, as against the uncertainty of any dates they would be able to obtain in South Australia.
It is a feature of case management in this list that trial dates are set at the first directions hearing, rather than when interlocutory steps are complete, as apparently occurs in South Australia. However, the setting of the trial date in the Court does not guarantee that the trial will commence on that day. Whilst this Court makes every effort to ensure that listed cases are reached, the reality of the case management in this Court means that, on occasion, cases are not reached on their listed trial date. This is particularly so where, as in this case, a cohort of cases are listed together for case management purposes. The aim of case management is to ensure the timely, efficient and cost effective disposition of the real issues in dispute. Although seven of the 11 cases have been listed for trial on 13 July 2021, this Court does not have the capacity to accommodate seven trials running simultaneously in this list, particularly where a jury is sought. This Court does not, for example, have seven courtrooms able to accommodate a civil jury.
Where a group of cases arising from the same or similar circumstances are issued as separate proceedings, and where the parties seek to have the proceedings case managed as a group for the sake of efficiency, the understanding between the parties and the Court is that only one of that group of cases will proceed to trial on the listed trial date. In all likelihood a number of the group of seven cases will resolve prior to the trial date. The point of giving them a trial date is to ensure that, should all the other matters resolve, the remaining matter can proceed. Usually there is agreement between the parties as to which is the most appropriate case to run first. Where no jury is sought, it may be possible to run cases consecutively before the same judge, but where jury trials are sought, it is more likely that the trial dates would be scheduled over many months. If the seven listed cases were to proceed to trial by jury, it is likely that they would take the better part of a year to all be heard and determined.
The intention with this group of cases was that the matters would progress together up to trial. The parties and the Court would then determine the best way to deal with any cases that remained unresolved – whether that would be by running a ‘rolling list’ of trials, a ‘test case’ or some other format.
The trial date in these cases therefore cannot be said to be certain, as most likely only one of the seven listed cases would proceed on that date. I have no way of knowing whether it would be Mackrill, or Murphy, or neither of those cases. There is evidence that the Supreme Court of South Australia could likely accommodate a trial date around the same time as the currently listed date in this Court. In these cases the existence of a trial date is, therefore, not a significant factor that weighs in favour of keeping the proceedings in Victoria.
In relation to the existence of a prior deed of settlement, it is not clear to me that the existence of the deed would call into operation those clauses of the deed that relate to Victorian law being the governing law. It may be that the plaintiff makes an application to have the deed set aside and, if such an application is successful, the deed will have no relevance, other than as a set off in terms of any compensation awarded. In any event, I do not consider that this is a sufficiently significant factor to tip the interests of justice in favour of the cases remaining in Victoria. I note that in Mackrill there is no such deed.
In relation to the plaintiffs’ desire for jury trials, I accept that there is no authority for the proposition that a plaintiff has an entitlement to select a jurisdiction based on the existence or otherwise of jury trials. This would veer uncomfortably close to the plaintiff selecting a forum based on some characteristic that the plaintiff considers will be beneficial to him, rather than based on the appropriate forum in which to initiate proceedings, having regard to the matters set out in the case of Irwin v Queensland.[1] Further, at the moment, all jury trials are suspended in Victoria due to the restrictions enacted in response to the COVID-19 pandemic. I do not know when jury trials will recommence. The likelihood is that, when jury trials do recommence, they will be preferentially reserved for criminal trials. I could not be sufficiently confident that civil jury trials will have re-commenced by July 2021, such that I could consider this a significant factor weighing against the defendant’s application, even if I accepted that the availability of a jury trial was an appropriate matter to consider.
[1][2011] VSC 291.
I accept that this case will involve questions of South Australian law. Whilst it is no doubt true that South Australian judges will be more familiar with South Australian law than Victorian judges, if other factors weighed in favour of retaining the proceedings in Victoria, I would not consider the application of South Australian law to be a strong factor weighing in favour of transferring it. It is a minor factor to be considered amongst all the other factors.
In this case, the pleaded events all occurred in South Australia. The pleaded torts occurred at least in part in South Australia. The plaintiffs are in South Australia. Their medico-legal experts are in South Australia. Most of the witnesses will be in South Australia. There is a timetable currently in place which, if complied with, would enable the parties to seek a trial date in South Australia in early 2021. The evidence before me is that trial dates are available within months of parties completing the interlocutory steps.
Having considered the arguments and having read the affidavits of Mr Kitchen for the plaintiff and Mr Jones for the defendant, I have concluded that it is in the interests of justice to cross vest these matters to the Supreme Court of South Australia. Whether the Supreme Court considers that it is then appropriate to transfer them to a district court which might sit in or near Port Pirie is a matter for that court.
The parties have agreed to consider this ruling as binding upon the parties in the remaining nine related proceedings issued by the same firm against this defendant in February and May 2020.
As such, the following proceedings are to be transferred to the Supreme Court of South Australia:
(a) S ECI 2020 00760 Mackrill, Robert Wayne v The Salesian Society Incorporated;
(b) S ECI 2020 00747 Murphy, Anthony Shane v The Salesian Society Incorporated;
(c) S ECI 2020 00758 Plaintiff v The Salesian Society Incorporated;
(d) S ECI 2020 00759 Plaintiff v The Salesian Society Incorporated;
(e) S ECI 2020 00762 Plaintiff v The Salesian Society Incorporated;
(f) S ECI 2020 00763 May, Peter Andrew John v The Salesian Society Incorporated;
(g) S ECI 2020 01236 Plaintiff v The Salesian Society Incorporated;
(h) S ECI 2020 02155 Lee, Raymond v The Salesian Society Incorporated;
(i) S ECI 2020 02157 Maynard, Dennis v The Salesian Society Incorporated;
(j) S ECI 2020 02158 Plaintiff v The Salesian Society Incorporated; and
(k) S ECI 2020 02159 Mackrill, Peter Desmond v The Salesian Society Incorporated.
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