Marks v Berri Pty Limited

[2024] NSWDC 279

District Court

New South Wales

Medium Neutral Citation:

Marks v Berri Pty Limited [2024] NSWDC 279

Hearing dates:

20 June 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

1. The application by the plaintiff to fix the final hearing of the proceedings commencing 11 November 2024 in Wagga Wagga for five days is granted;

2. The costs of the application are to be costs in the cause;

3. The Notice of Motion filed 3 June 2024 seeking an extension under s 151D of the Workers Compensation Act 1987 (NSW) is fixed for hearing on 11 October 2024 with an estimate of half a day;

4. Any Notice of Motion to be filed by either party seeking leave to rely on fresh evidence is to be filed and served by 23 July 2024 returnable before the list judge for directions on 29 July 2024 at 9.30am;

5. The listing before the Judicial Registrar on 21 June 2024 is vacated;

6. The parties are to attend a mediation before 20 September 2024;

7. Liberty to apply on two business days’ notice.

Catchwords:

PRACTICE AND PROCEDURE – application to move venue for final hearing – relevant factors

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Workers Compensation Act 1987 (NSW)

Cases Cited:

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

Church v Barnett (1871) LR 6 CP 116

Fraser v Health Care Corporation Pty Ltd [2016] NSWDC 39

Kings Cross Whisper Pty Ltd v O’Neill [1968] 2 NSWR 4

Category:

Procedural rulings

Parties:

Ricky James Marks (Plaintiff)
Berri Pty Limited (Defendant)

Representation:

Solicitors:
Turner Freeman Lawyers (Plaintiff)
Hall and Wilcox (Defendant)

File Number(s):

2024/00080744

Publication restriction:

No

JUDGMENT – ex tempore

1. Before the Court is an application brought by the plaintiff with the consent of the defendant to have a matter which was commenced in the Sydney Registry of the Court fixed for hearing in Wagga Wagga.

2. In support of the application the plaintiff read the affidavit of Sandra Loway Aziz dated 14 June 2024.

3. Part 8.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows:

“(1) If it appears to the court -

(a) that a fair or unprejudiced trial of a question arising or likely to arise in or in connection with any proceedings cannot otherwise be had, or

(b) for any other reason it is appropriate for the venue of any proceedings to be changed,

the court may, subject to this Part, make an order changing the venue of the proceedings.

(2) The judicial officer before whom proceedings are being heard by the court may direct that proceedings commenced at one location be continued at another location at which he or she is authorised to hear those proceedings.”

4. The background to the matter is that the plaintiff by Statement of Claim filed on 1 March 2024 seeks damages in the tort of negligence for work injuries allegedly suffered on 7 June 2012. The defendant has pleaded a limitation issue and there is a separate application by the plaintiff for an extension order under s 151D of the Workers Compensation Act 1987 (NSW).

5. The affidavit of Ms Aziz dated 14 June 2024 gives some background to the matter and, in particular, states that a number of the lay witnesses to be called reside in Leeton in the Riverina area of New South Wales. One other witness resides in the Sydney area. Reference is made in the affidavit to the hardship which would occur to the parties and witnesses by reason of the need for lengthy travel or prolonged absences from home or work, if the trial were to be held in Sydney. The best estimate is that the hearing is likely to take six days. There is also a reference in the affidavit to the considerable costs to the witnesses and to the plaintiff if the trial were held in Sydney due to flights, accommodation and living expenses.

6. On its face, Part 8.2 is a rule which requires the Court to exercise its discretion in relation to the venue for a hearing. There are no stated factors to be taken into account other than the Court being of the view that it is appropriate to change the venue.

7. The Court sits in Wagga Wagga on occasions to hear civil matters and there is a resident judge hearing criminal matters in that location.

8. The traditional rule to be applied in change of venue applications looks at what is described as the “manifest preponderance of convenience” in trying the case in the place which the party applicant seeks to have as the venue: Church v Barnett (1871) LR 6 CP 116 at 177-178. Other cases have referred to various issues such as where the cause of action accrued and where the balance of the more significant witnesses reside: see Kings Cross Whisper Pty Ltd v O’Neill [1968] 2 NSWR 4 at 290.

9. A number of cases that are referred to in the procedural textbooks occurred before the Civil Procedure Act 2005 (NSW) was enacted. Reference has been made to Bankinvest AG v Seabrook (1988) 14 NSWLR 711 which was a case under the cross-vesting legislation. That legislation, of course, had its own relevant factors to take into account. However, in my view some guidance may be gleaned from the decision. Street CJ referred to the approach in that legislation as largely being what he described as a ““nuts and bolts” management decision” as to which court in the pursuit of the interests of justice was the more appropriate to hear and determine the substantive dispute: at p 714. Rogers AJA indicated that the “only lodestar that a judge may steer by is, what do the interests of justice dictate should be done?”: at p 727.

10. The relevant factors, in my view, in this case include:

1. The location of residence of the preponderance of witnesses;

2. The likely length of the trial;

3. Delays which may occur if the matter was heard in Sydney rather than in Wagga Wagga;

4. The cost to witnesses through having to travel to Sydney for a hearing;

5. The costs which would be incurred by legal practitioners in having to travel to Wagga Wagga;

6. The cost to the Court of having to send a judicial officer and support staff to Wagga Wagga;

7. The availability of a judicial officer, consistent with the commitments of the Court, to send to Wagga Wagga outside the scheduled civil listing of the Court;

8. Whether a court is available in Wagga Wagga at that time consistent with other hearings; and

9. The attitude of the respondent to the application.

11. In the present case, the defendant consents to the change in venue. As I indicated, there are a significant number of witnesses resident in the area. Inquiries have been made and the proposed hearing date of 11 November 2024 is an available date outside the normal sittings of the Court in Wagga Wagga in its civil jurisdiction which commence on 18 November 2024. In addition, the Court has heavy commitments in Sydney in the civil list at that time but inquiries have also indicated that a judge could be available to travel to Wagga Wagga for the listing.

12. The case is a personal injuries case involving a number of experts. Although the estimate is six days, I have raised the issue of any expert evidence at the end of the case being heard in Sydney where the medical practitioners are based. There appears to be no real issue with that.

13. I have indicated that the Court should take into account ss 56 to 59 of the Civil Procedure Act 2005 (NSW). This is consistent with the decision of Gibson DCJ in Fraser v Health Care Corporation Pty Ltd [2016] NSWDC 39 where her Honour pointed to the fact that there did not appear to be relevant authorities at an appellate level which had considered Part 8.2 since the Civil Procedure Act 2005 was enacted. In particular, I refer to her Honour’s discussion in paragraphs 12 to 18 of Fraser.

14. An application was also made to have the Notice of Motion seeking an extension under s 151D of the Workers Compensation Act heard before the hearing which would shorten the hearing. That is agreed to by the defendant and in my view that is an appropriate step to take.

15. Balancing all of the matters that I have referred to, it appears that it is in the interests of justice to have the hearing sought in Wagga Wagga. Inquiries I have made with the Civil Registry in Sydney indicate that a hearing would not be available in Sydney for the likely hearing length until the middle of 2025. For all of those reasons the application for a change of venue for the hearing is approved.

[His Honour then dealt with other matters not requiring reporting.]

16. I make the following orders:

1. The application by the plaintiff to fix the final hearing of the proceedings commencing 11 November 2024 in Wagga Wagga for five days is granted;

2. The costs of the application are to be costs in the cause;

3. The Notice of Motion filed 3 June 2024 seeking an extension under s 151D of the Workers Compensation Act 1987 (NSW) is fixed for hearing on 11 October 2024 with an estimate of half a day;

4. Any Notice of Motion to be filed by either party seeking leave to rely on fresh evidence is to be filed and served by 23 July 2024 returnable before the list judge for directions on 29 July 2024 at 9.30am;

5. The listing before the Judicial Registrar on 21 June 2024 is vacated;

6. The parties are to attend a mediation before 20 September 2024;

7. Liberty to apply on two business days’ notice.

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