Re Centro Retail Ltd

[2011] NSWSC 1320

Supreme Court

New South Wales

Medium Neutral Citation:

Duncan v State of Western Australia [2011] NSWSC 1320

Hearing dates:

14 October 2011

Decision date:

04 November 2011

Jurisdiction:

Common Law

Before:

Walmsley AJ

Decision:

(1) Notice of Motion dismissed

(2) Applicant to pay the respondent's costs

Catchwords:

CROSS-VESTING - interests of justice - application dismissed

Legislation Cited:

Child Welfare Act 1947 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Jurisdiction of Courts (Cross-Vesting) Act 1987
Supreme Court Act 1935 (WA)

Cases Cited:

BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Ewins v BHP Billiton Limited [2005] VSC 4
James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357
Lend Lease Property Management and Construction Pty Ltd v National Fire Solutions Pty Ltd [2011] NSWSC 739
Rosenboom v Qantas Airways Ltd [2002] NSWSC 792; (2002) 56 NSWLR 164
Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223
Sugar Australia Ltd v Conneq [2011] NSWSC 805

Category:

Interlocutory applications

Parties:

The State Western Australia (Applicant, defendant)
Lee-Anne Marie Duncan (Respondent, plaintiff)

Representation:

B Allen (Applicant, defendant)
J Cairn (Respondent, plaintiff)
State Solicitor's Office (Western Australia) (Applicant, defendant)
Herbert Weller (Respondent, plaintiff)

File Number(s):

2010/ 365324

Judgment

Introduction

1. The question to be decided is whether these proceedings should be transferred to the Supreme Court of Western Australia under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the Act).

Background

1. On 3 November 2010 the plaintiff commenced proceedings by statement of claim in this court, claiming damages from the defendant for the tort of misfeasance in public office, for breach of statutory obligations under the Child Welfare Act 1947 (WA), and the Criminal Code Act Compilation Act 1913 (WA), for negligence, and breach of fiduciary duty.

1. The plaintiff alleges that when she was 13 years of age she was placed under the care of the defendant as a ward of the state. After that, she says, inter alia, the defendant placed her with an inappropriate family, one of whose members sexually assaulted her; she was later sexually assaulted by an employee of the defendant who was either a case worker or a social worker; she became pregnant by reason of that assault and had an abortion at the Princess Margaret Hospital; later she was placed in totally unsuitable accommodation. In that accommodation, she says she was exposed, among other things, to drug use and prostitution, and was a witness to an attempted murder. By reason of those matters, she says she has suffered significant losses.

1. The defendant filed its defence on 9 August 2011. By that defence inter alia it denies it was in breach of any duty to her, says her actions if any are barred by statute, and that her claim for breach of fiduciary duty is barred by analogy with the limitation periods. Further, it avers it has been prejudiced by her delay in commencing proceedings.

1. By notice of motion of 9 August 2011 the defendant sought an order that the matter be transferred to the Supreme Court of Western Australia. Each party filed an affidavit in support of or against the motion. Neither deponent was required for cross examination.

The law

1. Section 5(2) of the Act provides relevantly:

"(2) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and

(b) it appears to the Supreme Court that:

...

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court."

1. The defendant applies under section 5(2) and argues that it would be in the interests of justice for these proceedings to be transferred to the Supreme Court of Western Australia.

1. The court has no power to order a transfer unless satisfied a transfer would be in the interests of justice.

"The "interests of justice" concern those of both parties and should be judged by objective factors. The moving party bears at least a persuasive onus of showing that transfer...is appropriate in all the circumstances":

Lend Lease Property Management and Construction Pty Ltd v National Fire Solutions Pty Ltd [2011] NSWSC 739 at [14], (7) (per Einstein J).

Defendant's arguments

1. The applicant submitted that it would be in the interests of justice to transfer because:

(1)   There is an informal arrangement for dealing with similar matters in the District Court of Western Australia: there are over 200 similar claims which have commenced in WA and which are being or have been dealt with in that way;

(2) The parties and courts would receive great practical assistance as the case would be case managed with many others: Rosenboom v Qantas Airways Ltd [2002] NSWSC 792; (2002) 56 NSWLR 164 at 179 (per Sperling J);

(3) If the matter were to be transferred to WA it could there be remitted to the Western Australian District Court: Section 17 Supreme Court Act 1935 (WA), where the other, similar, claims are being handled;

(4) The place where the wrong is said to have occurred, in this case, WA, is usually the best forum for a case involving an alleged tort: Ewins v BHP Billiton Limited [2005] VSC 4 at [29], [32]-[34] (per Gillard J); James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [7] (per Spigelman CJ); BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [165] (per Kirby J);

(5) The courts of WA are more used to the interpretation and application of the Western Australian statutes than those of NSW; some of the statutes, such as the Limitation Act 1935 and the Crown Suits Act 1947, are unique to WA, and have received much judicial consideration in WA, where a great deal of case law has been built up concerning that legislation; there would be a lesser likelihood of inconsistency of judgments;

(6)   The balance of convenience to parties and witnesses favours WA as the appropriate forum: all material witnesses, other than the plaintiff, live in WA.

Consideration

1. I am not persuaded that a transfer would be in the interests of justice. The uncontradicted evidence read for the respondent establishes that:

(1)   The plaintiff is aged 40. She lives in North Richmond, just out of Sydney, and is in very modest financial circumstances;

(2)   She has very poor mental health and sees a psychiatrist weekly, a general practitioner fortnightly, and a psychologist monthly: they are her only social supporters: she has no family or friends living in her area;

(3)   She has poor physical health;

(4)   Her only income is from Centrelink. She has no financial means to travel to or stay in WA;

(5)   She cannot afford to pay for any witnesses to travel to or stay in WA;

(6)   She cannot afford to pay solicitors and counsel in WA: her current solicitors and counsel are acting for her on a conditional fee basis;

(7)   A report from Dr Klug, forensic psychiatrist, of 2 November 2009, provides support for her claim against the defendant. I infer his evidence will be needed for the hearing. I infer she will also need to call the psychologist and her general practitioner;

(8)   The preparation of the case is considerably advanced in this court.

1. I accept the argument of Mr Cairn, who appeared for the respondent, that there would be duplication of work and additional expense to the plaintiff if the matter were to be transferred to WA; that additional expense she could not meet.

1. I accept there are statutes peculiar to WA and that a considerable body of case law has grown in WA in connection with those statutes. However both are common law states. Australian judges are accustomed to interpreting the legislation of other jurisdictions, and applying case law from them. I do accept that at times, such as where there is construction required of a detailed legislative scheme of another state, transfer on that ground may be appropriate: Sugar Australia Ltd v Conneq [2011] NSWSC 805 (per McDougall J). But I am not persuaded the WA legislation relevant here is of that quality.

1. The plaintiff's case on liability appears mainly to be a documentary one: three witnesses only have been identified by the defendant as relevant ones who may be called. As Einstein J stated in Taurus Funds Management Pty Ltd v Aurox Resources Ltd [2010] NSWSC 1223 at [45]:

"[A]n application for transfer ought not to be decided by a superficial tallying of where potential respective witnesses reside. This point was made by Brereton J in Bioag Pty Ltd v Hickey [2007] NSWSC 296 at [14]:

'I think the natural forum for proceedings, particularly in this day and age of electronic communication and interstate travel, usually falls to be determined by more principled issues than where the preponderance of the witnesses reside...'"

1. In any event, it is apparent to me that in the plaintiff's case she will be an essential witness, as will the three professional witnesses referred to above. As I have observed, she has no means to pay for them to travel to WA or for their accommodation there. I infer, on the other hand, that there would be little expense or detriment to the applicant to bring its witnesses to Sydney for the trial.

1. Although I accept that the place of the alleged wrong is the natural forum, that factor has, in my view, little weight here, where to make the order sought would effectively amount to a permanent stay.

1. Ms Allen informed me that the respondent may qualify for legal aid if the case were to be heard in WA. But there was no evidence on that issue, and the evidence before me suggests strongly her current solicitor and counsel have been involved in her case for a considerable time. I consider she may suffer some prejudice in having to start anew with new lawyers. Assuming legal aid were available to her in WA she would still face the burden that she has no means to get herself or her witnesses to WA.

1. I take account of the fact that if the case were to be transferred to WA it would have the benefit of case management under the WA system, but that is not a powerful factor here, where, as I have observed, to order a transfer, would, effectively, mean that the plaintiff could not proceed at all.

1. I consider that the interests, overwhelmingly, favour my declining the order sought.

1. Orders:

(1)   Notice of Motion dismissed.

(2)   Applicant to pay the respondent's costs.

(3)   Stand over for further directions to the Registrar's list on 14 November 2011.

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Decision last updated: 04 November 2011