R v Lv - [2007] QCA 237

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4332 of 2006

DARREN JOHN SIMPSON	Plaintiff
v
KAREN UNA FRANCKE	Defendant

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April, 10 May 2006
DATE OF RULING:	31 May 2006
CASE MAY BE CITED AS:	Simpson v Francke
MEDIUM NEUTRAL CITATION:	[2006] VSC 200

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Cross-Vesting Application – cross-vested to Supreme Court of Tasmania.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. R Dwyer	Hall and Wilcox
For the Defendant	Mr. R. Middleton	Nowicki Carbone and Co.

HER HONOUR:

This is an application pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 for transfer of this proceeding to the Supreme Court of Tasmania.

On the 20^th January 2006, the plaintiff instituted a proceeding in this Court by writ claiming damages for personal injuries arising as a result of a motor vehicle accident which occurred on 15 June 2004 at Hobart in the State of Tasmania.

The Statement of Claim asserts that the accident occurred when a motor vehicle driven by the defendant collided with the plaintiff in a street in Hobart, Tasmania. The vehicle was a Tasmanian registered vehicle and the insurer has agreed to indemnify the defendant in respect of her liability, if any, to the plaintiff.

At the time of the collision the plaintiff and the defendant were both resident in Tasmania and the plaintiff was initially treated at the Royal Hobart Hospital.

The action would be subject to Tasmanian legislation including the Motor Accidents (Liabilities and Compensation Act) 1973, and the relevant parts of the Civil Liability Act 2002. That much is conceded by the plaintiff and the defendant.

The plaintiff and the defendant have a dispute as to location of the plaintiff. The defendant has stated in an affidavit of the 19^th April that:

“consistent with the comment in the last sentence of Dr. Wilding’s report, I am informed by Fiona Spencer of the plaintiff’s solicitors and believe that the plaintiff regularly visits his partner in Tasmania. “

In exhibit ADL2 of the affidavit of Andrew David Lyle dated 19 April 2006, the current treating doctor of the plaintiff in a report dated 18 March 2006 stated:

“I would like to highlight that Darren’s care needs over the time I have known him have always been and remain complex due to multiple factors. From the outset I have understood that Darren has had past issues in his life that have made my care of his physical and pain problems difficult. I understand that Darren has had limited access, especially at the onset, to physiotherapy and specialist pain services. A great deal of our consultations have been spent checking and past and current details and medical history and arranging ongoing specialist care. Darren’s frequent travel between Tasmania and Melbourne have prevent (sic) regular and ongoing physiotherapy.”

The plaintiff has produced an affidavit to the Court dated 28 April…

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.

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Details

Case: [2007] QCA 237
Decision Date: 26 July 2007

CaseChat Overview and Summary

The plaintiff, Darren John Simpson, has filed a lawsuit against the defendant, Karen Una Francke, seeking damages for personal injuries sustained in a motor vehicle accident that occurred on 15 June 2004 in Hobart, Tasmania. Simpson filed the lawsuit in the Supreme Court of Victoria, but Francke has applied for the case to be transferred to the Supreme Court of Tasmania under section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. The case involves determining whether it is in the interests of justice for the proceedings to be heard and determined by the Supreme Court of Victoria or the Supreme Court of Tasmania.

The court must decide whether it is in the interests of justice to transfer the case to the Supreme Court of Tasmania. The court considered several factors in making this decision, including the place of the tort, the residence of the parties, the convenience to the parties and witnesses, the law governing the proceeding, the experience of the courts, and the condition of the party. The court found that the accident occurred in Tasmania, the law governing the case is Tasmanian law, and the Supreme Court of Tasmania is familiar with the relevant provisions of the law. The court also found that the plaintiff is now protected from being financially inconvenienced in the presentation of his case due to an undertaking provided by the defendants, and therefore, it is in the interests of justice to transfer the case to the Supreme Court of Tasmania.

The court found that the factors relevant to the application were equally divided in terms of the interests of justice between the plaintiff and the defendant. However, the court agreed with Gillard J that in the modern world of easy communication, it is quite possible to have witnesses heard by video link, an increasingly common phenomenon in the world of litigation. The court also found that the plaintiff is now protected from being financially inconvenienced in the presentation of his case, by the undertaking provided by the defendants. Therefore, the court held that it is in the interests of justice to transfer the case to the Supreme Court of Tasmania.

The court ordered that the relevant proceedings be heard and determined by the Supreme Court of Tasmania. The court found that the defendant's undertaking to meet the cost of the provision of any witnesses of the plaintiff by video link would be met by the defendants, and the plaintiff would not suffer from financial inconvenience in the presentation of his case. The court also found that the Supreme Court of Tasmania is able to deal with the case and these types of cases in an expeditious manner. Therefore, the court ordered that the case be transferred to the Supreme Court of Tasmania.

Orders