McKee v Van Haften

[2001] VSC 251

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5971 of 2001

NICOLE MCKEE	Plaintiff
v
RUDY VAN HAFTEN	Firstnamed Defendant
and
QBE INSURANCE LTD	Secondnamed Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2001
DATE OF JUDGMENT:	2 August 2001
CASE MAY BE CITED AS:	McKee v Van Haften and QBE Insurance Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 251

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Application to transfer proceeding – Section 5(2)(b) of Jurisdiction of Courts (Cross‑Vesting) Act 1987 – interests of justice favour plaintiff – application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. McCaffrey	Phillips Fox
For the Firstnamed and Secondnamed Defendants	Mr A. Moulds	Dibbs Barker Gosling

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

The Proceeding................................................................................................................................... 2

Transfer Application.......................................................................................................................... 3

Rival Contentions as to Appropriate Forum................................................................................. 7

Conclusion........................................................................................................................................... 9

HIS HONOUR:

1. This is the return of a summons in a proceeding by the defendant, seeking an order that the proceeding be transferred to the Supreme Court of Queensland, pursuant to the provisions of s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Act").

Parties

1. The plaintiff, Nicole McKee ("the plaintiff"), is a veterinary surgeon, aged 31 years, who resides in the State of Victoria. 

1. On 30 May 1998, she was driving a motor vehicle in the State of Queensland when it collided with another motor vehicle.  As a result of the collision, the plaintiff suffered injuries and incurred losses and expenses. 

1. The first defendant, Rudy Van Haften ("Mr Van Haften"), is an elderly gentleman, aged 72 years, who was the driver of the motor vehicle which struck the plaintiff's vehicle.  He resides in Queensland. 

1. The second defendant, QBE Insurance Ltd ("the insurer"), is the insurer of the vehicle driven by Mr Van Haften.

The Proceeding

1. On 25 May 2001, the plaintiff instituted a proceeding in this Court, by writ, against the two defendants, claiming damages for the injuries suffered and the losses and expenses incurred as a result of the said collision. 

1. The mode of trial is by judge and jury. 

1. The insurer was joined as a second defendant evidently because there is some statutory provision in Queensland which required the insurer of a vehicle to be joined as a party to the proceeding. 

1. The proceeding has been instituted in this State, in this Court, and the substantive and procedural laws which apply, at present, are Victorian.  It is unnecessary to join the insurer as a party to the proceeding in this State.  There is no cause of action pleaded against it.  It follows that the second defendant should not be a party to the proceeding and should be removed from the proceeding. 

1. On 13 June 2001, the defendants, through a Victorian firm of solicitors, filed a conditional appearance and on 12 July 2001, delivered a defence.  There is no dispute that the Court has jurisdiction to hear the claim.  It is accepted that the defendants have submitted to the jurisdiction.

1. In their defence, the defendants deny negligence and allege…