McKay v Flynn

[2000] VSC 499

SUPREME COURT OF VICTORIA  Not Restricted

PRACTICE COURT

No. 6790 of 2000

PETER McKAY	Plaintiff
V
PETER FLYNN and ORS	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2000
DATE OF JUDGMENT:	17 November 2000
CASE MAY BE CITED AS:	McKay v. Flynn & Ors
MEDIUM NEUTRAL CITATION:	[2000] VSC 499

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Application to cross-vest proceeding to South Australia – Plaintiff resident in Victoria – Severely injured in diving accident in South Australia – Severe inconvenience to plaintiff if proceeding transferred – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M.J. Corrigan	Slater & Gordon
For the 1st and 2nd Defendants For the 3rd and 4th Defendants	Ms M. Wright Mr J. Noonan	Phillips Fox Minter Ellison

HIS HONOUR: 

1           This is the return of a summons filed in the court on behalf of the third and fourth defendants whereby those defendants seek an order that the proceeding be transferred to the Supreme Court of South Australia pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic.) 

2           The proceeding is one in which the plaintiff seeks damages from the defendants in respect of serious injuries he suffered in a diving accident which occurred at a place called Brenda Park in South Australia on 21 December 1997.

3           The first and second defendants are the lessees and occupiers of Lot 49 Government Road, Brenda Park.  The third and fourth defendants are the lessees and occupiers of the adjoining property at Lot 48 Government Road.  The two properties abut the Murray River.  There is a pontoon jetty situated on the property leased by the third and fourth defendants.  It extends out into the river.

4           On the day of his accident the plaintiff was a visitor at the property of the first and second defendants.  At some unspecified time on that day the plaintiff walked from the property of the first and second defendants, over a small part of the property occupied by the third and fourth defendants, went on to the jetty and dived from it into the river.  Unfortunately for him, the plaintiff struck a sand bar, which caused a serious injury to his spine resulting in quadriplegia.

5           At that time the plaintiff was living at Moolap, near Geelong.  He has now returned to the State of Victoria and is living with his family on a property at Moolap.

6           On 11 September 2000 the plaintiff instituted this proceeding in the court.

7           I have read the affidavit material filed in support of the application.  I should say the application is supported by the first and second defendants.  I have also read the affidavit material filed on behalf of the plaintiff.

8           I am not satisfied in this case that it is in the interests of justice that the proceeding be transferred to the State of South Australia.  Whilst it is true that there will be a degree of inconvenience caused to the defendants if this proceeding remains in this court, in my view that inconvenience is far outweighed by the inconvenience which will be caused to the plaintiff and his family if the proceeding is transferred to South Australia.

9           In that regard I note the comment in the letter of Julie Fry, who is the plaintiff's case manager at Community Care Services in Geelong, in particular the last paragraph, which reads:

"As I feel sure you will appreciate, Peter would be unable at this stage to negotiate a lengthy trip of any nature without making alternative extensive personal care arrangements, undergoing substantial inconvenience and running the risk of sustaining possible physical trauma."

I also refer in that regard to the content of the affidavit of Barry Woolacott sworn this day.

10         Further, in my opinion there will be a large number of witnesses from the Geelong area and Melbourne who will be required to give evidence on the plaintiff's behalf, including medical experts and the other experts referred to in paragraph 25 of Mr Woolacott's affidavit.  I think one can confidently predict that those witnesses will far outweigh in numbers any witnesses to be called on behalf of the defendants.

11         It is said that the trial judge who hears this matter will need to give consideration to the provisions of s.17C(6) of the South Australian Wrongs Act 1936.  That is clearly so, but in my opinion a judge of this court should have little difficulty dealing with that situation.

12         Another matter that I have had regard to is the fact that it is the intention of the plaintiff's solicitors to transfer this proceeding to Geelong.  From my knowledge of the list of business in Geelong, if that application is made and granted, there is no reason why this proceeding should not be heard within the next twelve months.  There is very little, if any, civil business of any significance in the lists in Geelong at the present time.

13         Accordingly, I repeat that in my view it is not in the interests of justice that this proceeding be cross-vested to South Australia, and the defendants' application in that regard is refused.

14         In accordance with the normal practice in applications of this nature, I order that the parties' costs of the application be their costs in the cause.

(Discussion ensued.)

15         I reserve liberty to the plaintiff to apply to transfer the proceeding to Geelong.  If the parties agree that the proceeding is to be transferred, a minute of an order to that effect can be provided to me in due course and I will, obviously, make the order.  If the parties do not agree and the plaintiff wishes to pursue the application, then it can be pursued on 48 hours' notice to the solicitors for the defendants.

16         I have listened to what Mr Corrigan has said as to costs but I am not persuaded that I should make any order different from the one I pronounced.

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