McCormack v State of New South Wales
[2025] VSC 214
•24 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2024 02314
| SEAN MCCORMACK | Plaintiff |
| v | |
| STATE OF NEW SOUTH WALES | Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 April 2025 |
DATE OF JUDGMENT: | 24 April 2025 |
CASE MAY BE CITED AS: | McCormack v State of New South Wales |
MEDIUM NEUTRAL CITATION: | [2025] VSC 214 |
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PRACTICE AND PROCEDURE – Cross-vesting – Proceeding claiming damages for personal injury arising out of alleged abuse in institutional settings in the 1980s and early 1990s – Application by defendant to transfer the proceeding to New South Wales – Whether the Supreme Court of New South Wales is the more appropriate forum – Interests of justice – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2)(b) – BHP Billiton Ltd v Schultz (2004) 221 CLR 400, Irwin v State of Queensland [2011] VSC 291, Vernon v Kaefer Integrated Services Pty Ltd [2023] VSC 667 and Stanford Barton (a pseudonym) v The State of New South Wales [2025] VSC 57 considered – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | D Seeman | Arnold Thomas & Becker |
| For the Defendant | D McWilliams SC with I Murphy | Wisewould Mahony as agents for Hicksons Lawyers |
HIS HONOUR:
A. Introduction
By statement of claim filed 10 May 2024, the plaintiff claims damages for injuries arising out of alleged sexual and physical abuse suffered while he was resident at three institutions operated by the defendant in the 1980s and early 1990s.
In particular, the plaintiff alleges abuse involving –
(a) a male officer in a shower, upon the plaintiff’s arrival at Mount Penang Training school (‘Mt Penang’) in 1982;
(b) a female officer in a janitor’s room, at Ormond Regional Youth Centre (‘Ormond’) on approximately five occasions during a period of weeks in 1983; and
(c) an inmate named Maurice Marsland, at Long Bay Metropolitan Remand Centre (‘Long Bay’) –
(i) in the plaintiff’s cell, over a period of 4 days in 1989;
(ii) in a separate wing of the prison, over a period of 6 or 7 weeks in 1989; and
(iii) in the plaintiff’s cell, in part of the complex called the ‘CIP’, in 1991.
The plaintiff claims injuries including post-traumatic stress disorder (‘PTSD’), heroin use disorder, social anxiety disorder, claustrophobia and recurrent major depressive disorder.
The defendant has not filed a defence. Instead, it has filed –
(a) a conditional appearance; and
(b) a summons which, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (‘the Cross-vesting Act’), seeks an order transferring the proceeding to the Supreme Court of New South Wales.
The defendant relies on –
(a) an affidavit sworn by Nicole Maree Laughlin, solicitor, on 16 August 2024;
(b) two affidavits sworn by Michelle MacMahon, solicitor, on 31 October 2024 and 21 November 2024 respectively; and
(c) an affidavit sworn by Paul Wholohan, solicitor, on 15 April 2025.
The plaintiff opposes the application and relies on affidavits affirmed by Kristen Grace Wright, solicitor, on 14 November 2024 and 14 April 2025 respectively.
Each party prepared and relied upon written submissions.
B. Applicable provision and authorities
Section 5(2) of the Cross-vesting Act provides, relevantly –
Where –
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and
(b) it appears to the Supreme Court that –
…
(iii)it is otherwise 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.
As will be apparent, the section creates a statutory requirement to transfer a proceeding if it appears to be in the interests of justice that the proceeding be determined by the Supreme Court of another State or Territory.
In BHP Billiton Limited v Schultz (‘Schultz’),[1] Gleeson CJ, McHugh and Heydon JJ stated –
In the context of the Cross-vesting Act, … the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court “shall transfer” the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.[2]
[1](2004) 221 CLR 400 (‘Schultz’).
[2]Schultz (n 1) [14].
In Irwin v State of Queensland (‘Irwin’),[3] Robson J referred to Schultz, as well as other authorities, and thereafter stated 17 relevant principles, including that –
[3][2011] VSC 291, [14] (‘Irwin’). See also Tamaresis v CSR Ltd [2013] VSC 613, [12].
(a) the jurisdiction to transfer must be exercised if it appears that it is in the interests of justice to do so;
(b) it is necessary and sufficient that it appears that the second court is more appropriate than the first court;
(c) the applicant assumes some onus of persuasion, although it is inapt to speak of an onus of persuasion as analogous to an onus of proof;
(d) the court should adopt a ‘“nuts and bolts” management decision’ as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute;
(e) in order to determine the appropriate forum, the Court may consider ‘connecting factors’ including ‘matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction’;
(f) the list of ‘connecting factors’ is impossible to state exhaustively and the weight to be given to relevant factors must vary from case to case; and
(g) each case depends on its own facts.
In Irwin, the plaintiff’s son had been murdered in Brisbane while on police duty. At the time, the plaintiff was living in the Northern Territory, but she later moved to Melbourne and issued proceedings in the Supreme Court of Victoria. Shortly after identifying the principles to which I have earlier referred, his Honour stated –
19Bearing in mind the matters put forward by Mrs Irwin, as outlined below, it appears to me that it would be more convenient to the State of Queensland to call the evidence of the police in Queensland. On the other hand, this convenience can not be overstated. The use of video link evidence is common today and is regularly used in common law and other proceedings. The Supreme Court of Victoria has video link facilities in its various court rooms which are regularly used to take the evidence of interstate and even local witnesses. The witnesses do not even have to travel to a court to give their evidence. Facilities for using video link are common throughout Australia. Video link facilities have revolutionised the convenience and cost of dealing with witnesses who find it inconvenient to get to court. I accept that there are forensic advantages in the witness being present in court as against appearing by video link. I do not overlook these.
…
21The defendant is obviously based in Queensland. Mrs Irwin was in the Northern Territory at the time she learned of her son’s death. She alleges that the state of Queensland owed her a duty of care. The alleged negligent acts occurred in Queensland. Without more, on balance these connecting factors would tend towards Queensland being the natural forum for determining the proceeding.
22It would, however, be a heavy burden on Mrs Irwin’s finances and health to be required to pursue this proceeding in Queensland. Mrs Irwin is mentally unwell, as a result of her alleged psychiatric response to the death of her son. Her solicitor deposes that he believes that she is subject to depression, which is exacerbated at various times. Mrs Irwin is unable to engage in employment by reason of her condition and is in somewhat straitened financial circumstances. Mrs Irwin’s support base is in Melbourne. Naturally, she will be a material witness in her own proceeding. The cost to her of going to Queensland for the trial is a relevant factor. Theoretically, she might be able to give evidence by video link. It would be unfair on her, though, to not be present at her own proceeding in a matter of such importance for her future. Any consideration of her position strongly favours the proceeding being determined in the Supreme Court of Victoria.
23The State of Queensland has the full resources of the State behind it. It is well able to afford to bring witnesses to Melbourne, if that is in fact necessary. Naturally, the executive arm of the government of Queensland is based in Queensland. I am able to take judicial notice, however, of the fact that its servants and agents travel outside the State carrying on the affairs of the State. Lawyers acting for Queensland appear in the High Court in Canberra and in courts throughout the country. Similarly, Victorian lawyers attend to matters in Queensland. Queensland is a very large state. It is about the same distance from Brisbane to Cairns as it is from Brisbane to Melbourne. It is used to conducting its affairs over large distance.
His Honour concluded that transfer of the proceeding to Queensland was not in the interests of justice.
It will be evident that financial circumstances and health, as well as other particular circumstances, can be relevant to a determination of the present issue.[4]
[4]See also, eg, Ewins v BHP Billiton Ltd [2005] VSC 4, [29(iv)], Kellow v Irish Murphy’s Pty Ltd [2010] VSC 239, [20] (‘Kellow’) and Lloyd vRiverland Regional Health Service Inc [2010] VSC 350, [24].
I also note that since Irwin was decided in 2011, the use of online facilities in court proceedings has become considerably more common and accepted. That said, differences of opinion remain.[5]
[5]See Vernon v Kaefer Integrated Services Pty Ltd [2023] VSC 667, [25]-[27] (‘Vernon’).
The applicable principles have been considered in several recent decisions of the Court.[6] In particular, in Vernon v Kaefer Integrated Services Pty Ltd (‘Vernon’),[7] Forbes J stated –
Proving the other court is the more appropriate forum does not require the first court to be shown to be clearly inappropriate. The starting point is the court in the place where the tort occurred. From the starting point, the court considers the relevant connecting factors to the first court and those of another court. Where there is a coincidence between the location of the tort and the residence of the parties, then the court of that place will generally be the more appropriate or natural forum. However, where there is not such a coincidence, the Court will consider and place appropriate weight on the various connecting factors to arrive at the more appropriate court. Different places of residence of the parties may cancel each other out as connecting factors to one or other forum. In Irwin v State of Queensland, Robson J summarised these factors in a tortious action such as in this proceeding as including: the place where the wrong occurred, the residence of the parties (and for a corporation the place where it carries on business), the convenience of parties and witnesses, the law governing the proceeding, the experience of a particular court and its ability to provide an efficient and speedy trial, and the health condition of a party.[8]
[6] Vernon (n 5); Estate of Terence James Roberts v Midalco Pty Ltd [2024] VSC 240 (‘Roberts’), Stanford Barton (a pseudonym) v The State of New South Wales [2025] VSC 57 (‘Barton’); Tracy v Bishop Edwards [2025] VSC 94 (‘Tracy’).
[7]Vernon (n 5).
[8]Vernon (n 5) [12] (citations omitted). See also Roberts (n 6) [29].
C. Evidence and submissions
As I have noted, each party relies upon affidavit material addressing presently relevant considerations.
A significant part of the dispute apparent in the affidavit material concerns the processes and likely date on which the Supreme Courts of New South Wales and Victoria might respectively be able to hear a trial.
The plaintiff’s affidavit material also includes two reports of a consultant psychiatrist, Dr Eli Kotler.[9]
[9]Application book (‘AB’) 78-88.
In a report dated 23 November 2022,[10] Dr Kotler records, among other things, that –
[10]AB 78-86.
(a) since 2018, the plaintiff has lived alone in a boarding house in Footscray;
(b) the plaintiff is on a disability support pension for PTSD and described himself as ‘institutionalised’;
(c) the plaintiff began using heroin at 18 or 19 years of age, which contributed to him spending 23 years of his life in custody;
(d) at the time of the report, the plaintiff was on ‘methadone 90 mg’;
(e) the plaintiff first trialled opioid replacement therapy in 2008 and has been on it regularly since 2018, although he has used heroin throughout his life when he can afford it;
(f) the plaintiff has had multiple episodes of a pervasive low mood during which, among other things, he does not clean his clothes or take out the rubbish;
(g) throughout the plaintiff’s life he has had very significant anxiety in social settings and, after periods of isolation in gaol, has become anxious in small spaces;
(h) the plaintiff described ‘several posttraumatic features’ and intrusive memories of abuse that had ‘increased in 2021 since legal proceedings [commenced], and recently he has [had] intrusive memories of his abuse several times a day’; and
(i) over the years, the plaintiff has had ‘minimal formal mental health input’.
As to the plaintiff’s then current function, Dr Kotler stated –
Mr McCormack said that he is usually up between 9 am to 12 noon, gets out of bed, brushes his teeth, and gets dressed. He may take a 10-minute bus ride to the chemist, pick up his methadone. He collects up to three days’ worth. He may visit Coles which is a short walk, buy milk and bread and pre-prepared meals. He may take the bus home and “then I’ll kick back in bed…when the methadone kicks in”. He may watch YouTube Channels about aviation, boating, nautical and navigation topics. He said “I’m there for two to three days” in bed. He said “I’m in bed until I have to get up”. He said that on TV he will watch “anything of interest, political affairs”.
Regarding his personal activities he said that he does not shower for days. He said that he showered today for the first time in 10 days. He said that he can change his clothes every 10 days. He said that he has not done any domestic activities for roughly two weeks. He said that recently his apartment was inspected. He said “I spent three days cleaning my room”. He said he had not cleaned for six months. He said “there was rubbish piling up around me”. Regarding community activities he said he has one friend who he speaks to daily. He said he had friends who are “criminals” and he has tried to “move away” from them. He said he has no hobbies. He said he does not do anything else outside of the house. He said he is estranged from his family. He said that his father had passed away, and he was estranged from his mother.[11]
[11]AB 82-83.
Dr Kotler thereafter expressed several opinions, including –
(a) as to diagnosis –
… it is most likely that according to DSM-5, Mr McCormack suffers from a heroin use disorder and alcohol use disorder in remission, posttraumatic stress disorder, with significant mood and anxiety features. He may also meet diagnostic criteria for, and certainly has features of social anxiety disorder, claustrophobia and recurrent major depressive disorder.[12]
[12]AB 84.
(b) as to prognosis and likelihood of further deterioration –
Mr McCormack’s prognosis is guarded. He has very severe underlying trauma fuelling his psychiatric diagnoses. Mr McCormack is at significant risk of periodic clinical deterioration into his feature under psychosocial stress or when exposed to triggers resembling his earlier trauma.[13]
[13]Ibid.
(c) as to restrictions and incapacities –
Mr McCormack has a raft of mental health symptoms related to his diagnoses. This include[s] periods of low mood and numbness, low energy and motivation, increased appetite, limited concentration and attention. He reported low self-esteem, self-blame, social anxiety, anxiety in enclosed spaces, an avoidance of people and relationships, decreased trust in others, intrusive memoires of his abuse, and an ongoing need for [methadone] which appears to have a significant impact on his energy levels, attention and engagement with himself and the world.
Mr McCormack described marked limitations in his engagement with domestic, social and community activities. He has minimal social contact. He is unable to work. These are likely permanent.[14]
[14]AB 85.
In a further report dated 11 November 2024,[15] Dr Kotler records that the plaintiff’s mental state had remained mostly unchanged, although he reported that he had not taken any heroin for over two years. Dr Kotler also records that the plaintiff was ‘on a high dose of methadone; 120 mg per day’.
[15]AB 87-88.
Dr Kotler records, further, that –
He lives in the same accommodation, and continues to spend the vast majority of his day in his accommodation. He has very limited social contacts, though does have one friend, a teacher, who lives in the same block as him. They speak most days, and are good supports for each other. He remains mostly withdrawn from others, and does not speak with any family. He remains incapacitated from work on the disability support pension.
Mr McCormack recalled leaving Sydney for Melbourne “to put Sydney behind me and start a fresh life”. He noted that he has many past associates and geographical places which reminded him of his life of addiction. He noted that all of his trauma and abuse occurred in Sydney, and he wanted to leave the place of his past trauma. He actively avoids Sydney.
Mr McCormack noted that if he travelled to Sydney, he fears that he may be re-triggered, by places and emotions associated with his past trauma and addictions. He would be travelling by himself with no support. He was also worried that he has no finances to pay for accommodation. Furthermore, he spends the majority of his days in his apartment, which is the one place he feels safe and secure. He generally leaves his apartment “only to run errands”. Regarding the courts in Sydney, Mr McCormack said “I’d feel I’m not in an environment in which I’m welcome”.[16]
[16]AB 87-88.
Dr Kotler was asked questions concerning the plaintiff’s condition if he were required to travel to, and stay in, Sydney, and give evidence in the Supreme Court of New South Wales, to which he answered as follows –
Based on the information available to me, it is reasonable to conclude that;
1. Mr McCormack is in a relatively stable condition. He has not used heroin in 2 years, the longest period of abstinence since he was 19 years old.
2.His mental state remains vulnerable, he continues to have significant amounts of unprocessed trauma.
3.Sydney is where his trauma occurred, there are many reminders of, and potential triggers for his addiction. He has no support in Sydney. He relies on his apartment to maintain a sense of safety and security.
It is therefore reasonable to conclude that necessitating a move to Sydney, for the purposes of court hearings regarding his abuse, will be a significant stressor, and place him at significant risk of deterioration and potential relapse into heroin use disorder.[17]
[17]AB 88.
The defendant did not have the plaintiff medically examined.[18]
[18]Transcript (‘T’) 4.
The defendant’s written submissions refer to the ’17 relevant considerations’ identified by Robson J in Irwin. In that general connection, the defendant submits, in substance, that –
(a) the plaintiff’s causes of action arise from torts that took place in New South Wales;
(b) although the common law of Australia applies, substantive New South Wales statutes will apply and a New South Wales court will necessarily have more familiarity with the provisions concerned;[19]
[19]In particular, the defendant’s written submissions refer generally to the Civil Liability Act 2002 (NSW) and the Limitations Act 1969 (NSW).
(c) ordinarily it is the residence of the defendant which is important to establish jurisdiction;
(d) the defendant intends to rely on the evidence of ‘numerous’ employee witnesses from Mt Penang, Ormond and Long Bay, and it is likely that such witnesses are ‘of advanced years’ and located in New South Wales;
(e) it is preferable that such evidence be given in person, and the defendant will be subjected to significant expense and inconvenience if all, or a majority of, the liability witnesses have to give evidence in Melbourne;
(f) the relevant documents are largely, if not entirely, based in New South Wales;
(g) the fact that the plaintiff’s solicitors are acting ‘no win no fee’ is, at best, a neutral consideration;
(h) the Supreme Court of New South Wales has a dedicated case management list of civil claims arising out of sexual abuse which, in November 2024, had trial dates available in February, September, October, November and December 2025;
(i) the fact that the plaintiff can have a trial by jury in the Supreme Court of Victoria is a neutral consideration;
(j) as to the condition of the plaintiff and his medical evidence, a hearing in Sydney would not impede any ‘treatment requirements’;
(k) more broadly, the plaintiff has ‘failed to establish that his condition is such that the interests of justice require the proceeding to remain in Victoria’;
(l) the only connection with Victoria is ‘the ‘[p]laintiff’s place of residence, his general practitioner, his expert psychiatrist [Dr Kotler] and his solicitors’; and
(m) in the circumstances, New South Wales is the ‘natural and more appropriate forum’ and, accordingly, the interests of justice require that the matter be transferred to the Supreme Court of New South Wales.
By contrast, the written submissions of the plaintiff emphasised that –
(a) the plaintiff resides in Victoria, as does his treating general practitioner and medico-legal expert, both of whom are expected to be called as witnesses;
(b) the plaintiff wishes to participate in the trial and give evidence in-person;
(c) the defendant is merely speculating about how many witnesses it may call or where such witnesses would reside;
(d) the plaintiff is diagnosed with a psychiatric injury and engaged in a methadone program which involves obtaining a prescription from his chemist 2 to 3 times per week;
(e) the plaintiff is of very limited financial means and it would be overly burdensome to expect him to travel to, and pay for, accommodation in New South Wales for a trial estimated to run for a duration of 10-14 days;
(f) the supplementary report of Dr Kotler makes it clear that the plaintiff lives a reclusive existence in his apartment and there are triggers for the plaintiff’s addiction in Sydney such that he would be placed at significant risk of deterioration and potential relapse into heroin use were he required to attend a trial in the Supreme Court of New South Wales; and
(g) the applicable law is the common law of Australia, but if damages are required to be assessed the Supreme Court of Victoria is equipped to make an assessment in accordance with the Civil Liability Act 2002 (NSW) (‘CLA’).
The ambit of the respective written submissions facilitated some degree of focus in the oral argument.[20]
[20]Having regard to the manner in which the application was argued, when it comes to determining the present application, I have not specifically addressed minor submissions in writing that did not warrant a mention or any particular emphasis in the oral argument, particularly concerning the availability of documents.
Senior counsel for the defendant went to some of the material, as well as several aspects of relevant authority,[21] and submitted that it is ‘beyond doubt’ that the Supreme Court of New South Wales is the more appropriate forum.[22]
[21]In particular, Tracy (n 6), Schultz (n 1) [98]-[99], Kellow (n 4), [9], Barton (n 6).
[22]T4.
In that connection, he submitted, that the ‘key issues’ are –
(a) the personal circumstances of the plaintiff, particularly his ‘dependency’ on methadone and the medical evidence he relies upon; and
(b) the availability of each jurisdiction to provide an ‘expeditious trial’.
As to the latter, senior counsel referred to the recent competing affidavits of the solicitors and said that ‘it’s hard to divide the two [jurisdictions]’.[23]
[23]Ibid. See also T25.
As to the former, senior counsel submitted that the evidence concerning the plaintiff’s personal circumstances was ‘scant’ and ‘insufficient’, and said that the ‘only’ link to Victoria is the ‘residence’ of the plaintiff, his general practitioner and Dr Kotler.[24]
[24]T2.
In that connection, senior counsel criticised the evidence concerning the plaintiff’s methadone requirements as, in effect, second hand hearsay, and said that there was ‘nothing’ from the plaintiff’s treating general practitioner. Senior counsel submitted that judicial notice could be taken of the fact that methadone programs are available ‘throughout the Commonwealth of Australia’.[25]
[25]T14-15.
Senior counsel also criticised as ‘fairly opaque’ the opinion of Dr Kotler concerning the plaintiff’s loss of support structure were he required to go to Sydney. Senior counsel said that there was ‘no evidence of what attempts have been made to put a structure in place to assist the plaintiff, should the matter be transferred to Sydney’ and speculated that financial support for ‘modest lodgings’ for the plaintiff for two weeks in Sydney could be provided by the plaintiff’s solicitor.[26]
[26]T17-19. See also T22.
Ultimately, senior counsel submitted that the plaintiff’s contentions concerning his financial state ‘go no further than simply stating it is an inconvenience for him’[27] and later submitted that ‘the evidence certainly does not go as high as to say that [the plaintiff is] likely to throw his hands up in the air and abandon the proceeding should the matter be transferred’.[28]
[27]T20. See also T26.
[28]T26-7.
Senior counsel also contended that Dr Kotler had not said that it was more likely than not that the plaintiff would deteriorate and relapse into heroin use were he to be required to return to Sydney.[29]
[29]T22-3.
In the course of the above, senior counsel for the defendant interwove several other contentions, particularly that –
(a) the place of the alleged torts is New South Wales;
(b) the ‘residence’ of the defendant is New South Wales;
(c) the likelihood is that the defendant’s liability witnesses will be located in New South Wales; and
(d) the New South Wales courts are ‘better placed’ to deal with the ‘various nuances of New South Wales legislation’.[30]
[30]See especially T26.
In response, counsel for the plaintiff articulated four specific submissions –
(a) at its highest, the defendant’s submissions concerning the location of its liability witnesses amount to saying that it ‘might’ call witnesses who ‘might’ live in New South Wales;[31]
[31]T27.
(b) the financial circumstances of the plaintiff should be compared with those of the defendant;[32]
(c) the reports of Dr Kotler speak to the plaintiff’s vulnerability, his position ‘on the fringe of society’ and the ‘material’ risk that he could relapse;[33] and
(d) there is a difference between the listing system adopted by the respective courts and it ‘seems likely that this case would get listed noticeably quicker [in the Supreme Court of Victoria] than in New South Wales’.[34]
[32]Ibid.
[33]T28-30.
[34]T31.
In reply, senior counsel for the defendant sought to reinforce the earlier submission that, as between the two courts, the question of possible trial dates remained ‘a bit of a nil all draw’.[35]
[35]T33.
D. Consideration
As noted by Forbes J in Vernon,[36] the starting point must be the court in the place in which the alleged torts occurred. In the present instance that is New South Wales, which is a significant factor that tends towards New South Wales being the more appropriate forum.[37]
[36]Vernon (n 5).
[37]Cf Irwin (n 3) [21].
There is, however, no coincidence of ‘residence’ in the present case –
(a) the residence of the plaintiff is Victoria; and
(b) the ‘residence’ of the defendant is New South Wales (in the sense that the defendant is the State of New South Wales).
The submissions of the parties exposed further dimensions to the topic addressed generally under the heading ‘residence’ (particularly by the defendant).
In that regard, the present position of the defendant essentially correlates with that of the State of Queensland considered by Robson J in Irwin. Responsibly, senior counsel for the defendant might be thought to have accepted that position.[38]
[38]T16.
That said, the defendant contended that any liability witnesses that it called would be elderly and based in New South Wales, and also submitted that it was desirable that such witnesses be able to be called to give evidence at trial in person.[39]
[39]See, eg, T26.
To some extent, that submission is also addressed by the kind of considerations referred to by Robson J in Irwin, including that any such evidence is likely to be able to be given remotely.[40]
[40]See, Irwin (n 3) [19].
More fundamentally, however, the defendant’s summons was issued on 24 July 2024[41] and the affidavit addressing the present issue was sworn on 31 October 2024.[42]
[41]AB 13-14.
[42]AB 21-44.
The deponent there described the ‘extensive’ and ‘further’ searches being undertaken.[43]
[43]AB 24-26.
Further, it seems that by that point records had been located that confirmed a ‘likely admission’ of the plaintiff to Long Bay between 20 December 1989 and 14 February 1990. It is not there said whether those records might have identified any relevant former employees.[44]
[44]AB 24-25.
In any event, no further affidavit has since been sworn addressing the state and product of the searches to which I have referred and, in oral submissions, senior counsel for the defendant referred to that relatively early affidavit and said that ‘at present’ the solicitors had ‘not been able to locate any particular lay witness upon which the defendant intends to rely’.[45]
[45]T2-3. Later, senior counsel said that there had not been any further investigations into the whereabouts of any witnesses, pending the determination of the present application: T4-5, 24. While it might be thought that it was sought to be there suggested that the defendant had been cautious about taking steps to defend the proceeding in Victoria, the searches to which I have referred must be relevant wherever the proceeding goes to trial. On reflection, there was really no clear explanation given for why it was that the defendant had evidently determined not to further pursue its inquiries concerning the identity and whereabouts of potential witnesses.
That tended to leave the true content of the submission concerning liability witnesses as somewhat uncertain; as well as at least conditional, if not hypothetical.
In the circumstances, I accept the submission of the plaintiff that the position of the defendant really comes down to saying that it might call liability witnesses that might prove to be residents in New South Wales.
In respect of the latter element, senior counsel for the defendant submitted that any former employees in the ‘corrections arena’ were ‘less likely to be travelling further afield [than New South Wales]’.[46] However, that proposition seems to me to be premised in some large assumptions. In a broad sense, much the same might have been able to be said about the plaintiff, albeit that he seems to have since been resident for a period in Queensland and, for about the last 15 years, in Victoria.
[46]T3.
In the end, the consideration identified by the defendant deserves no more than some slight weight in favour of a trial in New South Wales.
In that connection, I should add that while the potential location of any medico-legal witnesses called by the defendant was raised in argument,[47] on reflection I tend to think that that particular element is essentially neutral.[48]
[47]T12.
[48]In that regard, it is now not uncommon for medico-legal examinations to be undertaken via telehealth. Whether the trial were to be held in Victoria or New South Wales, I imagine that the defendant would be able to have the plaintiff examined such that its medical examiner could attend court and give evidence in person in either place, if that were desired.
Notwithstanding the above, there seems to me to be much to be said about the personal circumstances of the plaintiff which, in argument, the defendant tended to deride as amounting to ‘only’ the ‘residence’ of the plaintiff (together with that of his general practitioner and Dr Kotler),[49] and otherwise as amounting to no more than matters of ‘inconvenience’.[50]
[49]See, eg, T2.
[50]See, eg, T26.
In that regard, it is apparent that the plaintiff wishes to attend his trial and give his evidence in person, not via video link.[51] That is not always the case. However, it can be a significant consideration,[52] and the position of a party in an action can be, and often is, qualitatively different to that of a witness. Having regard to the deeply personal nature of the allegations made in this action, as well as the injuries allegedly suffered, I would accept that the consideration is presently a significant one.
[51]AB 67 [17].
[52]See, for example, Vernon (n 5) [31].
That said, the submissions of the defendant tended to suggest that the reasons advanced by the plaintiff for resisting a trial in Sydney really amount to no more than matters of ‘inconvenience’ of a ‘limited’ kind,[53] and otherwise suggested that the relevant evidence of the plaintiff was ‘insufficient’, particularly that of Dr Kotler.
[53]T20.
In particular, while apparently accepting that the plaintiff is in receipt of a disability support pension on account of his psychiatric condition, and has been for many years, and that his solicitors are acting in the present litigation ‘no win no fee’, it seemed to be submitted that the solution was to put a ‘structure’ in place to ‘assist the plaintiff’ if the matter is transferred to Sydney’. It was also submitted that the plaintiff’s evidence was deficient for not having articulated such a ‘structure’ and that, in any event, the plaintiff did not appear to be saying either that his solicitors would have to go off the record if the proceeding was transferred, or that he would be unable to give evidence in New South Wales. Upon further examination, the contention seemed to be that the securing by the plaintiff’s solicitors of ‘modest lodgings’ in Sydney for a period of two weeks could constitute a sufficient structure (in argument, reference was made to ‘a Quest apartment near Phillip Street’). In that regard, senior counsel for the defendant drew an analogy with the incurring of disbursements when assembling necessary medical opinions.[54]
[54]T17-20.
It is not easy to know where to start with such a submission. The essential point is that it fails to grapple, in any meaningful or convincing way, with the evidence that was led on behalf the plaintiff.
That is especially so, it seems to me, when the various criticisms emanate only from the mouth of counsel unsupported by any critiques or suggestions from a medical or psychiatric source. That is not to say, of course, that it was necessary for the defendant to assemble such evidence. Merely that the points made by counsel would have been considerably more likely to be persuasive if they were supported by medical opinions and suggestions to similar or like effect. Particularly, when the only psychiatrist who has examined the plaintiff (twice), seems to be essentially supportive of the plaintiff’s position.
In that regard, I have earlier referred to, and extracted various parts of, the evidence relied upon by the plaintiff, particularly the reports of Dr Kotler. Nothing about that evidence struck me as remotely insufficient or inapposite.
Further, it is plain from that evidence that the plaintiff’s financial and other living circumstances are straitened and that he is exceptionally vulnerable. Apart from his obviously very limited financial resources, it is perhaps sufficient to note further that –
(a) the plaintiff has had ‘minimal formal mental health input’;
(b) the plaintiff lives alone in a boarding house with one friend (who lives in the same block) and is estranged from all family connections;
(c) the plaintiff has PTSD that involves intrusive, visual and vivid memories several times a day since he commenced involvement with the legal proceedings;
(d) the plaintiff can also lose track of time;
(e) the plaintiff’s day can involve attending the chemist to pick up his methadone and visiting Coles, after which he ‘kicks back in bed’ while the methadone ‘kicks in’;
(f) in that regard, the plaintiff can be in bed for ‘two to three days’ until he has to get up;
(g) the plaintiff does not shower for days and evidently neglects changing his clothes and other domestic activities;
(h) the plaintiff has no hobbies and does not do anything outside of the house and is unable to work;
(i) the plaintiff and his one friend are in the same block and are ‘good supports for each other’;
(j) the plaintiff’s apartment is ‘the one place he feels safe and secure’ and he generally leaves it only to do errands; and
(k) Dr Kotler concluded that the plaintiff relies upon his apartment ‘to maintain a sense of safety and security’ and there was ‘no support’ for the plaintiff in Sydney.
Based upon the picture evident in those aspects of the reports of Dr Kotler, the idea that ‘modest lodgings’ such as a ‘Quest apartment near Phillip Street’ could be anything like a substitute ‘structure’ that could sufficiently support the plaintiff during the acutely stressful experience of being a litigant in Supreme Court proceedings involving such direct and personal concerns seems to me, with respect, to be rather fanciful.
Further, while the defendant was critical of Dr Kotler for failing to consider and identify a ‘structure’ that could be implemented in Sydney, the fact is that he was not asked that question. Nor was such a question provoked by any responding evidence of the defendant.
In any event, I tend to think that if Dr Kotler had been asked the question he would have said it had effectively already been answered in his earlier reports; which make it plain that the plaintiff relies heavily on his one friend and apartment in Melbourne for his support and sense of safety and security, which, of course, is a state of affairs that is not readily transportable to Sydney.
In that connection, of course, the very financially limited circumstances of the plaintiff were essentially accepted. However, much was also sought to be made of the fact that while the plaintiff’s solicitors were retained ‘no win no fee’ it had not been indicated that they were at risk of going off the record if the proceeding were transferred to the Supreme Court of New South Wales. It was also said, somewhat remarkably, I thought, that because disbursements must be incurred in the course of obtaining medical opinions in respect of the plaintiff’s claim, that could readily and reasonably be extended to the provision by the solicitors of ‘lodgings’, such as a Quest apartment, for the plaintiff in the Sydney CBD for a period of two weeks.
For the reasons already outlined, it will be evident that I do not think that such ‘lodgings’ could go anywhere near reproducing the kind of support which the plaintiff requires and has created for himself in Melbourne. In any event, I have never heard of solicitors in a personal injury action incurring such ‘disbursements’ in respect of any client, and, in the absence of further evidence to assist, I cannot accept that the analogy presently sought to be drawn, with disbursements incurred in order to assemble medical opinions, is an applicable or reasonable one.
Many aspects of the above reasoning seem to me also to deal with various other submissions of the defendant concerning matters such as the absence of any ‘treatment requirements’ and the availability of methadone programs ‘throughout the Commonwealth of Australia’. After all, the plaintiff’s condition has seemingly been barely treated over a long period, except for the taking of methadone; and that state of affairs seems to have been able to occur as a consequence of his heavy reliance upon his apartment as well as, one expects, his one friend.
I should, perhaps, add that one might readily anticipate that even the participation of the plaintiff in a trial of the present proceeding, in the Supreme Court of Victoria at Melbourne, could present significant challenges in circumstances in which, at the very least, his days in the apartment where he feels most safe and secure can still involve ‘kicking back’ for hours on methadone, losing track of time, regular intrusive thoughts and depressive symptoms such that he cannot change his clothes or take out the rubbish for days at a time.
To the above, of course, may be added the specific risks associated with returning to Sydney identified or accepted by Dr Kotler, particularly that –
(a) it is the place which the plaintiff wanted to leave and ‘put behind him’ owing to his past trauma;
(b) there are many past associates and geographical places in Sydney that remind the plaintiff of his life of addiction;
(c) the plaintiff remains vulnerable and has ‘significant amounts of unprocessed trauma’; and
(d) ‘necessitating a move to Sydney, for the purposes of court hearings regarding his abuse, will be a significant stressor, and place [the plaintiff] at significant risk of deterioration and potential relapse into heroin use disorder’.
In that context, it is plain in the supplementary report of Dr Kotler that a ‘move to Sydney’ would present very significantly greater risks to the plaintiff than if his trial were to be heard in Melbourne.
In the end, while the defendant was apt to be critical of the plaintiff’s evidence, including that of Dr Kotler, for not saying directly that the plaintiff could not return to Sydney, I tend to think that that makes the evidence more persuasive rather than less. It is plain from the reports of Dr Kotler that the issue is one of a very significant and greater risk of undue hardship to the plaintiff if he were required to attend a trial in Sydney; in particular, greater risks of psychiatric deterioration and/or relapse into heroin use. It is not necessary for Dr Kotler or the plaintiff to embrace a more extreme position in order for the potential injustice of the position to be made more plain.
Further, were such a deterioration or relapse to occur there must be a very significant prospect that the plaintiff’s trial would be interfered with, if not his claim stultified. In no sense could such a state of affairs, should it occur, be thought to be ‘in the interests of justice’.
In my view, the submission of the defendant, effectively, that the position of the plaintiff is founded in mere ‘residence’ (including in respect of the treating general practitioner and Dr Kotler) and otherwise mere ‘inconvenience’ cannot be accepted. Indeed, I consider the evidence concerning the personal circumstances of the plaintiff presently to demonstrate a consideration of very great and practically decisive weight[55] that strongly favours the matter remaining in Victoria and proceeding to trial in Melbourne.
[55]Cf Vernon (n 5) [13].
The parties otherwise addressed several further and more minor considerations, particularly –
(a) that the applicable law is that of New South Wales – as to which, I accept that the greater likely familiarity of the Supreme Court of New South Wales with the statutory instruments identified in argument perhaps very slightly favours a trial in that forum (although, of course, this Court is also well able to apply the relevant law);[56]
(b) that the plaintiff may have trial by jury in the Supreme Court of Victoria, but faces trial by judge alone in the Supreme Court of New South Wales – which, for several reasons, seems to me to be an essentially neutral consideration in the present case; and
(c) the management and availability of an expeditious trial date in each of the courts under consideration – which, having heard the persuasive submissions of counsel for the plaintiff,[57] I accept slightly favours a trial of the proceeding in the Supreme Court of Victoria, at least in the circumstances of the present case.
[56]Although no party highlighted any specific issues arising from any lack of coincidence between the law of the place and the law of the wrong were the proceeding to remain in the Supreme Court of Victoria, I accept that it is a further and minor factor going to this particular element of the assessment.
[57]T30-31.
For completeness, I should note that the defendant advanced a succinct submission directed to what was described as the ‘many resemblances’ between the circumstances of the present case and those considered recently by Judd J in Stanford Barton (a pseudonym) v The State of New South Wales.[58]
[58]T24. Cf Barton (n 6).
It may be accepted that there are some elements of apparent similarity between the two cases. However, it would be clear enough from what I have already said that there must also be, and are, important elements of difference.
In any event, each case of the present kind turns on its own facts and the weight of the various factors under consideration necessarily varies between cases. Indeed, experience tends to show that even outwardly quite small changes in the facts can significantly alter the overall complexion of such a case. It follows that the mere fact that a particular combination of factors might have illuminated the interests of justice in one way in one case says little about a differently weighted combination of the same factors in a subsequent case. [59]
[59]In that regard, I note that in Irwin (n 3) [16], Robson J explained that ‘[t]he circumstances of each litigant will differ from case to case even where there might be a veneer of similarity between the basic elements of the proceedings in other decided cases’.
Necessarily synthesizing the factors in the present case, it is apparent that the interests of justice do not dictate that it be determined in the Supreme Court of New South Wales. The most appropriate forum for the determination of the present case is the Supreme Court of Victoria.
E. Conclusion
The defendant’s summons must be dismissed.
I will hear the parties concerning any consequential orders, including in respect of costs.
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