Newman v Nilsen - [2001] QCA 160

[2001] QCA 160

COURT OF APPEAL

de JERSEY CJ
THOMAS JA
MACKENZIE J

Appeal No 9294 of 2000

DAVID NIKOLAI NEWMAN Plaintiff/Respondent

and

LEON JAODIE NILSEN First Defendant/Appellant

and

ALLIANZ AUSTRALIA INSURANCE
LIMITED (FORMERLY MMI
GENERAL INSURANCE LIMITED) Second Defendant/Appellant

BRISBANE

..DATE 27/04/2001

JUDGMENT

THE CHIEF JUSTICE: On 29 September this year the learned Central Judge dismissed the appellant's application for an order that the action be transferred from the Court in Rockhampton to Brisbane. The basis of the application rested in the substantial, if not overwhelming, connection between the claim and the Brisbane region.

It is a claim for damages in respect of injuries allegedly sustained by the respondent because of the admitted negligence of the first appellant driver. The connection between the claim and the Brisbane region may be seen from this catalogue of relevant considerations as taken from the appellant's outline of argument.

As at the date of the accident the respondent lived in Brisbane, where he continued to reside at the date of commencement of the proceedings, and indeed as at the time of the application for change of venue.

He was initially treated at the Ipswich Hospital, nearby to where the accident occurred, which was at Goodna, and his ongoing medical treatment was provided by doctors based at either Brisbane or Ipswich. The appellant would propose that further medical examinations be undertaken by Brisbane based specialists.

At the time of the accident and for a period thereafter the respondent was employed by the Brisbane City Council. A likely issue as the matter is developing will be whether the respondent reasonably complied with a regime for rehabilitation provided for him following the accident. Witnesses relevant to that issue are located, it would seem, in Brisbane.

In addition the plaintiff's parents, who instructed the plaintiff's present solicitor who practises in Gladstone, lived temporarily in Brisbane at the time of the application in order to assist the plaintiff with that rehabilitation.

There seems, in short, to be no significant connection between the proceedings and the Rockhampton region beyond the circumstance that, as was his right, the respondent commenced proceedings in the Supreme Court at Rockhampton.

There was under section 289 of the Supreme Court Act 1995 a confirmed discretion in the learned Judge to remove the action to Brisbane were he of the view, so persuaded by the appellant, that, "it could be tried or heard more expeditiously, cheaply, conveniently, or advantageously" in the Supreme Court at Brisbane.

The learned Judge addressed those questions. It does seem to me, however, with respect to his approach that the combination of circumstances to which I earlier referred overwhelmed any other consideration and virtually necessitated an order for transfer.

I appreciate that Appeal Courts are admonished to exercise particular caution in undertaking to review a decision on a matter of practice or procedure, and that one should in those cases be conscious of questions of injustice. I refer to Contender 1 Ltd v. Lep International Pty Ltd (1988) 63 Australian Law…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newman v Nilsen

Details

AGLC: Newman v Nilsen [2001] QCA 160
Case: [2001] QCA 160
Decision Date: 27/04/2001

CaseChat Overview and Summary

In the Court of Appeal, the case of Newman v Nilsen involved a dispute between David Nikolai Newman and Leon Jaodie Nilsen, with Allianz Australia Insurance Limited also a party. The matter pertained to a claim for damages stemming from injuries sustained by the plaintiff due to the defendant's admitted negligence. The case originated in the Supreme Court at Rockhampton, but the defendants sought a transfer to the Supreme Court in Brisbane, citing a substantial connection between the claim and the Brisbane region.

The central legal issue for the Court of Appeal was whether the trial should be transferred from Rockhampton to Brisbane. The Court considered this issue against the backdrop of section 289 of the Supreme Court Act 1995, which provides the criteria for transfer, including expedition, cheapness, convenience, and advantage. The Court needed to determine whether the primary judge had correctly exercised the discretion to transfer the case and whether the factors presented warranted a change of venue.

The Court of Appeal found that the primary judge had not adequately considered the overwhelming connection between the claim and Brisbane. The evidence presented by the appellant, including the plaintiff's residence, medical treatment, employment, and witnesses all located in or around Brisbane, supported a transfer. The Court held that the primary judge should have balanced these factors against the plaintiff's right to choose the venue, which was not of intrinsic weight once the contest arose. The Court of Appeal concluded that the primary judge had erred in not transferring the case to Brisbane and allowed the appeal accordingly.

The final orders of the Court of Appeal were to allow the appeal, set aside the orders made on 29 September 2000, order that the plaintiff pay the defendants' costs of the appeal and the application for change of venue, and transfer the action from the Supreme Court at Rockhampton to the Supreme Court in Brisbane. The Court noted the undertaking by the appellant not to enforce the costs order prior to judgment.

Orders