RACQ Insurance Ltd v Roebuck - [2013] NSWSC 2056

Supreme Court

New South Wales

Medium Neutral Citation: RACQ Insurance Ltd v Roebuck [2013] NSWSC 2056
Hearing dates: 22 May 2013
Date of orders: 23 May 2013
Decision date: 23 May 2013
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Dismiss the Summons.
(2) The First Plaintiff is to pay the Defendant’s costs.

Catchwords: COURTS – cross-vesting – motor vehicle accident on Gold Coast highway in Queensland – proceedings commenced in District Court in New South Wales – application by defendant to cross-vest proceedings to Queensland – doctors located in both Queensland and New South Wales – whether difference in approach to calculation of damages in the two states - delay if proceedings transferred – cross-vesting refused
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Liability Act 2003 (Qld)
Jurisdiction of Courts (Cross-vesting) Act 1987
Motor Accidents Act 1988 (NSW)
Uniform Civil Procedure Act 2005 (NSW)
Cases Cited: BHP Billiton v Schultz (2004] HCA 61; (2004) 221 CLR 400
British American Tobacco Australian Services Limited v Laurie (2009) NSWSC 83
James Hardie v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357
Reid v Wright (2012) NSWSC 1149
Category: Principal judgment
Parties: RACQ Insurance Ltd (First Plaintiff)
Kelly-Ann Hall (Second Plaintiff)
Matthew Roebuck (Defendant)
Representation:
Counsel:
A J Bowen (Plaintiffs)
G M Radburn (Defendant)
Solicitors:
Quinlan Miller & Treston (Plaintiffs)
Somerville Laundry Lomax (Defendant)

File Number(s): 2013/100216

Judgment

This is an application by RACQ Insurance Limited to have proceedings transferred from the District Court to this Court, pursuant to s 140 Uniform Civil Procedure Act 2005 (NSW) and s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), and for a further order that this Court should then transfer those proceedings to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act.
The proceedings arise out of an accident sustained by Matthew Roebuck who I shall refer to as the Claimant, on 16 May 2010. On that day he was riding his motorcycle on the Gold Coast Highway when he was struck by a motor vehicle coming in the opposite direction, which strayed onto his side of the road. As a result of the accident, he suffered reasonably severe injuries to his right limbs. He made a claim against RACQ Insurance, the second defendant in the proceedings, and on 6 January 2011 there was an admission of liability by the Insurer.
Settlement conferences were held in May and December 2012, but the quantum of the Claimant’s damages were not agreed at those settlement conferences. That led to the commencement of the proceedings on 31 January 2013 in the District Court at Lismore. The Statement of Claim in those proceedings was served on 5 February 2013. At the time of the service of the Statement of Claim, the standard timetable in the District Court was served together with the Form One and a statement of particulars.
There is a dispute about whether a report from Dr Sussman, the psychiatrist, was served at the time…

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: [2013] NSWSC 2056
Decision Date: 23 May 2013

CaseChat Overview and Summary

In the case of RACQ Insurance Ltd v Roebuck, the defendant sought to have proceedings moved from the District Court of New South Wales to the District Court of Queensland, where the accident occurred. The defendant argued that the proceedings should be cross-vested to Queensland to avoid a potentially different approach to the calculation of damages in the two jurisdictions and to avoid delays in the proceedings. The plaintiff opposed the application, arguing that the court should not exercise its discretion to cross-vest the proceedings given the circumstances of the case.

The central issue for the court was whether the difference in the approach to the calculation of damages between New South Wales and Queensland was a sufficient reason to exercise the court's discretion to cross-vest the proceedings. The court also had to consider the potential delay in the proceedings if the case was transferred to Queensland. In determining these issues, the court examined the relevant statutory provisions and case law concerning cross-vesting and the factors that the court should take into account when deciding whether to exercise its discretion to cross-vest proceedings.

The court found that while there may be differences in the approach to the calculation of damages between New South Wales and Queensland, this was not a sufficient reason to exercise its discretion to cross-vest the proceedings. The court noted that the plaintiff had already incurred significant costs in defending the proceedings in New South Wales and that there would be a delay in the proceedings if they were transferred to Queensland. The court also considered the location of the doctors involved in the case, who were located in both New South Wales and Queensland, and found that this was not a decisive factor in the decision. The court ultimately refused the defendant's application to cross-vest the proceedings to Queensland.

The court's decision in RACQ Insurance Ltd v Roebuck highlights the importance of considering all relevant factors when deciding whether to exercise the court's discretion to cross-vest proceedings. While differences in the approach to the calculation of damages between jurisdictions may be a relevant factor, they are not necessarily decisive. The court must also consider the potential delay in the proceedings and the costs already incurred by the parties. In this case, the court found that the defendant had not demonstrated that the potential benefits of cross-vesting outweighed the potential costs and delays.

Orders