Rowe v Queensland State Government - [2021] NSWSC 133

Supreme Court

New South Wales

Medium Neutral Citation: Rowe v Queensland State Government [2021] NSWSC 133
Hearing dates: 10 February 2021
Date of orders: 23 February 2021
Decision date: 23 February 2021
Jurisdiction: Common Law
Before: Harrison J
Decision:
Defendant’s amended notice of motion filed on 2 November 2020 is dismissed with costs

Catchwords:
CROSS VESTING – tort – where plaintiff alleges sexual abuse by servants or agents of the defendant in Queensland – whether interests of justice require transfer of proceedings to the Queensland Supreme Court

Legislation Cited:
Jurisdiction of Courts (Cross-Vesting) Act 1987

Category: Procedural rulings
Parties: Heath Rowe (Plaintiff)
State of Queensland (Defendant)
Representation:
Counsel:
D Campbell SC and D Woodbury (Plaintiff)
J J Ryan (Defendant)
Solicitors:
Mainstone Lawyers (Plaintiff)
Crown Law (Defendant)

File Number(s): 2020/00241989
Publication restriction: Nil

Judgment

HIS HONOUR: By its amended notice of motion filed on 2 November 2020, the State of Queensland moves the Court for an order that these proceedings be transferred to the Supreme Court of Queensland pursuant to s 5(2)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. An unopposed oral application to amend the reference to s 5(2)(b)(ii) to s 5(2)(b)(iii) was made at the commencement of the hearing of the motion.
Section 5(2) of the Act provides as relevantly follows:

(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 first 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.

Nature of the proceedings

Heath Rowe was born in 1972. Shortly before his 13^th birthday in 1985, he was admitted into the care of the Director of the Department of Children’s Services in Queensland, an entity that was controlled and operated by that State. He was sexually assaulted by Ian Fehlhaber between June and September that year in Yeppoon whilst he was residing at the BoysTown care facility at Beaudesert. Mr Fehlhaber was subsequently charged with a series of unlawful and indecent assaults and carnal knowledge. He pleaded guilty in April 1987 and was sentenced to terms of imprisonment.
By his amended statement of claim filed on 26 August 2020, Mr Rowe contends that during 1985, two child care officers employed by the department would regularly attend upon him “to ensure his wellbeing and to ensure he was being cared for and protected”. He alleges that on one such occasion in 1985 he told both women that he was being sexually abused by Mr Fehlhaber and that he was told that “he should not make up lies about adults”. Mr Rowe alleges further that by at least 12 August 1985, the women were aware that he was engaging in inappropriate sexual behaviour at school and that…

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: [2021] NSWSC 133
Decision Date: 23 February 2021

CaseChat Overview and Summary

The plaintiff, Rowe, brought a claim against the Queensland State Government for sexual abuse allegedly committed by its servants or agents. The claim was initially filed in the Federal Circuit Court of Australia. The defendant argued that the case should be transferred to the Supreme Court of Queensland, citing cross-vesting jurisdiction. The primary legal issue for the court to determine was whether the interests of justice required the transfer of the proceedings to the Queensland Supreme Court. This involved assessing the nature of the claim, the relevant legislation, and the principles of cross-vesting jurisdiction.

The court considered the Federal Circuit Court's jurisdiction over matters involving Commonwealth laws, the applicability of the cross-vesting provisions under the Jurisdiction of Courts (Cross-Vesting) Act 1987, and the interests of justice as outlined in the case law. It examined the plaintiff's allegations of sexual abuse and whether they fell within the ambit of the cross-vesting provisions. The court also looked at the procedural fairness and efficiency of the case being heard in either court. Ultimately, the court found that the interests of justice did not require the transfer of the proceedings to the Queensland Supreme Court, given the nature of the claim and the considerations of procedural fairness and efficiency.

Consequently, the court dismissed the application for transfer and maintained the proceedings in the Federal Circuit Court of Australia. The plaintiff's case would continue to be heard in the Federal Circuit Court, where the merits of the claim could be fully assessed. The court's decision was based on a careful analysis of the relevant legal principles and the specific circumstances of the case, ensuring that the interests of justice were properly considered in determining the appropriate forum for the proceedings.

Orders