Reid v Holdfast Bay City Council

[1999] NSWSC 1255

CITATION:	REID v HOLDFAST BAY CITY COUNCIL [1999] NSWSC 1255
CURRENT JURISDICTION:	Civil
FILE NUMBER(S):	20059/99
HEARING DATE(S):	12/04/99, 16/04/99/16/07/99
JUDGMENT DATE:	16 July 1999
PARTIES :	Dianne Reid (Plaintiff) Holdfast Bay City Council
JUDGMENT OF:	Adams J at 1

COUNSEL :	Mr M Walsh (Applicant/Defendant) Mr G B Hall QC with Mr A G Todd (Respondent/Plaintiff)
SOLICITORS:	Colin Biggers & Paisley (Applicant/Defendant) Brock Partners (Respondent/Plaintiff)
CATCHWORDS:	Cross-vesting - accident in South Australia - action in New South Wales - relevant considerations
ACTS CITED:	Jurisdiction of Courts (Cross-vesting) Act 1987 Supreme Court Rules District Court Act 1973
CASES CITED:	Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Crouch v Commissioner for Railways (Qld) (1989) 63 ALJR 416 Seymour-Smith & ors v Electricity Trust of South Australia (1989) 17 NSWLR 648 Teserioro v Matstar Pty Limited (1990) 93 ALR 607 Perpetual Holdings Pty Limited & Ors v Leviathan Pty Limited & Ors (1991) 30 FCR 524
DECISION:	Motion refused with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY 16 JULY 1999

20059/99

DIANNE REID v HOLDFAST BAY CITY COUNCIL

JUDGMENT

1    HIS HONOUR: The plaintiff commenced an action in the Supreme Court of New South Wales on 19 February 1999 against the defendant, which is an entity created by statute in South Australia. The plaintiff, a resident of New South Wales, suffered an accident whilst visiting South Australia when she lost her footing whilst walking on an access ramp at Glenelg Beach South. The statement of claim alleges that the defendant exercised control over the access ramp and, during works in its vicinity, failed to ensure that it was kept free of loose surface material upon which, so it is alleged, the plaintiff slipped. The plaintiff claims that her fall caused a fracture of her left ankle and other injuries with painful and permanent residual sequelae. As a result of her disability, she has been unable to continue her pre-injury employment as a checkout operator at Coles or undertake any similar activity. Although it appears that the plaintiff was immediately conveyed to a medical centre in the Adelaide area, she did not receive significant treatment since her foot was extremely swollen and bruised and, on the same day, she flew to Sydney for the purpose of receiving appropriate medical treatment. Indeed, her general practitioner referred her to an orthopaedic surgeon who operated on her at the St George Hospital on 12 April 1996 and internally fixed her left ankle fracture. Further medical treatment and physiotherapy was provided to the plaintiff in Sydney. 2    It will be seen from this brief outline that, to put it somewhat crudely, the issues of liability concern what occurred in South Australia whilst the issues of damages arise out of what occurred in New South Wales. The defendant applies under the Jurisdiction ofCourts (Cross-vesting) Act 1987 (the Act) and pursuant to Part 11 Rule 8(1) of the Supreme Court Rules for an order setting aside service of the statement of claim on the defendant, served in South Australia, on the grounds that the Supreme Court of New South Wales is an inappropriate forum for the trial or in the alternative, an order transferring the proceedings to the Supreme Court of South Australia. The first of these orders was not pressed before me. Rather, the defendant submitted that, in the circumstances of the case, s 5(2)(b)(iii) of the Act applied, requiring “in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State”, namely South Australia. 3 The evidence indicates that, on the question of liability it will be at least necessary for the plaintiff to adduce the evidence of her husband and her adult son who were with her at the time of the accident. The plaintiff resides in Sydney with her son whilst her husband, currently working in Melbourne, is to be reassigned to Sydney where he will be residing when this action comes on for hearing. From the defendant’s point of view, it appears that it will call, if necessary, several employees. It is said that an expert witness on each side is to be called although I am somewhat sceptical of the utility of such evidence in light of the everyday character of the case. It is, of course, uncertain as to the extent of medical evidence which it will actually be necessary to adduce, but it is indicated on the plaintiff’s behalf that, in addition to her general practitioner, she has been treated by an orthopaedic surgeon in Sydney and has consulted, for the purpose of her case, two other orthopaedic specialists. I have been informed that, on the question of the extent of her incapacity, in addition to her husband and son giving evidence, it is expected that at least two further lay witnesses would be called. It is likely also that one of the plaintiff’s erstwhile co-workers may be required to give evidence as to the nature of her work, the likelihood of its continuance and the extent of her incapacity. As I understand it, the plaintiff has not yet been examined by any consultants on the defendant’s behalf so that it is obvious that these might be either resident in Sydney or Adelaide depending on the exigencies of the case. 4 The applicable law is, of course, that of South Australia, but it does not seem to me that this is a significant consideration having regard to the relatively simple issues in the case. 5 The approach to applications of the present kind is rather a “nuts and bolts” management decision as to which court, in pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute”: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Street CJ at 714. Apart from the specific matters required by s5(2)(b)(ii)(A) and (B) whether it is more appropriate that the relevant proceedings be determined in South Australia in the interests of justice, will usually be answered by selecting “the Court, which, in all the circumstances, will facilitate the course of litigation”: Crouch v Commissioner for Railways (Qld) (1989) 63 ALJR 416 at 419, applied in Seymour-Smith & ors v Electricity Trust of South Australia (1989) 17 NSWLR 648 at 662. In this context, such observations that “ . . . in the absence of special circumstances, the litigation should be pursued in the court in which it was first commenced” (Teserioro v Matstar Pty Limited (1990) 93 ALR 607 at 608) and that where all else is equal, the case should not be transferred (Perpetual Holdings Pty Limited & Ors v Leviathan Pty Limited & Ors (1991) 30 FCR 524 at 530) should be regarded as rules of thumb rather than principles of law. 6 Whilst, as I have mentioned, it may be that a question as to the application of South Australian law might arise, the applicant has not specified any particular matter under this head demonstrating a significant difference with the position obtaining in New South Wales. It is difficult at this early stage to enumerate with any precision the witnesses to be called on each side but I have the strong impression that the plaintiff will need to rely on more than the defendant. In this regard, it is material I think that the defendant has not yet appointed consulting medical specialists to examine the plaintiff and thus that this can conveniently be done in Sydney. I have been informed that the plaintiff’s solicitors and present counsel have agreed to act for her on a speculative fee basis and that the plaintiff does not qualify for a grant of legal aid. It appears that the plaintiff and her husband have no substantial savings. The burden on the plaintiff of the cost of travel is obviously greater than that for the defendant. This might have the effect of inducing her not to call all relevant witnesses whose evidence is not strictly necessary to establish her case. The burden of litigation for personal litigants is very substantial and, I consider, is one of the considerations that should be weighed in deciding where the interests of justice lie. 7 The applicant submitted that the plaintiff, claiming a sum less than $750,000, was precluded by s47 of the District Court Act 1973 from hearing the matter through want of jurisdiction. Accordingly, it was submitted that it was unjust (together with all the other matters relied on) to subject the applicant to the additional costs of litigating in the Supreme Court of New South Wales where, the action could be heard in the District Court of South Australia. This argument is misconceived. Firstly, s 5 of the Act requires it to be more appropriate or otherwise in the interests of justice “that the relevant proceeding be determined by the Supreme Court of another State” and, therefore, the fact that it might be better that the proceeding be determined in another court in that State is immaterial. Moreover, although I have not formed a concluded view about this, it seems to me that the proceedings may at all events be transferred to the District Court of New South Wales under s143 of the District CourtAct 1973, the impediments formerly contained within s47 of that Act now having been removed. Even if this were not the case, however, the preponderant interests of justice in the circumstances here do not make it more appropriate that the litigation be determined in South Australia, indeed to the contrary. 8 Accordingly, the motion is refused with costs.

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Last Modified: 06/30/2000