Scott Williams v State of Queensland

[2024] NSWSC 832

Supreme Court

New South Wales

Medium Neutral Citation:

Scott Williams v State of Queensland [2024] NSWSC 832

Hearing dates:

5 July 2024

Date of orders:

5 July 2024

Decision date:

05 July 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1) These proceedings be transferred to the Supreme Court of Queensland, pursuant to s 5(2) of the Jurisdiction of the Courts Cross-Vesting Act 1987 (NSW).

(2) Mr Williams bear the State’s costs of these proceedings to date, as agreed or assessed.

Catchwords:

CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – by consent – weighing of respective benefits and disadvantages – interests of justice – appropriate forum – proceedings transferred

COSTS – party/party – exception to general rule that costs follow the event – order reflects a substantial capitulation by one party – costs thrown away order made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56, s 98

Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), s 5

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61

Lend Lease Funds Management t/as Sunshine Plaza v Sawaya [2014] NSWSC 262

Category:

Procedural rulings

Parties:

Scott Williams (Plaintiff)
State of Queensland (Defendant)

Representation:

Counsel:
C Coventry (Defendant)

Solicitors:
Beston McManis Lawyers (Plaintiff)
Barry Nilsson Lawyers (Defendant)

File Number(s):

2023/463156

Publication restriction:

Nil.

JUDGMENT

1. Mr Williams brought these proceedings in December 2023, pursuing damages against the State which he claims he suffered as the result of sexual abuse in 2018, which occurred while he was an inmate at the Brisbane Youth Detention Centre in Queensland.

2. The State now consents to orders which Mr Williams seeks under s 5 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), transferring these proceedings to the Supreme Court of Queensland. His motion is supported by an affidavit sworn by his solicitor, Mr McManis. The State consents to the order, but seeks its costs of the proceedings to date, they being, on its case, costs thrown away.

3. On the evidence, proceedings were originally brought in 2023 in the District Court of NSW and were later discontinued, because Mr McManis considered that to have involved a mistake. While he recognised that the tort the subject of the proceedings had occurred in Queensland, with the result that lex loci delecti usually applied, Mr Williams intended to live in NSW on his release from custody. He had NSW based legal representation and his medicolegal psychiatrist was located here. As a result, these proceedings were then commenced in this Court. It appears that the medicolegal report had already been served in the District Court proceedings.

4. After discussion with defence legal representatives, Mr Williams instructed that transfer of these proceedings should now be sought, and the State consented to the proposed orders, but there was a dispute about the appropriate costs order.

5. The State relied on the affidavit of its solicitor, Ms Pham. She explained that when the District Court proceedings were brought, the State raised the appropriate forum for the proceedings, which it contended was Queensland. They were subsequently discontinued.

6. When these proceedings were commenced, the State again raised the appropriate forum being Queensland and proposed that they too be discontinued, with an order for costs in its favour, which it would not enforce, unless further proceedings were commenced in a court outside Queensland. In April 2024, Mr Williams’ transfer motion was filed, it appears, after the Registrar indicated that he should consider the forum question which had been raised again. It was after this the State then consented to the transfer.

7. Mr Williams does not consent to the costs thrown away order which the State seeks. His case is that the usual order should be made: costs following the event.

Transfer

8. There is no question that this Court has jurisdiction to hear Mr William’s claims, but the parties are agreed that the proceedings should be transferred to Queensland, that reflecting as it does that the claimed tort occurred in Queensland, where the relevant documents and many of the witnesses are located.

9. There is also no question that what is claimed to have occurred to Mr Williams is subject to Queensland laws, which will have to be applied when his claim is determined. That is a consideration which has swayed even disputed transfers in other cases: Lend Lease Funds Management t/as Sunshine Plaza v Sawaya [2014] NSWSC 262.

10. The desirability of the proceedings being dealt with in Queensland is a recognition which could and should have been arrived at before these proceedings were commenced, given the earlier proceedings commenced and discontinued in the District Court and the parties’ engagement then with the question of the appropriate forum.

11. In the result, I am satisfied on the evidence in this case, that it is in the interests of justice that these proceedings be determined by the Supreme Court of Queensland, it being the more appropriate forum for the hearing of Mr William’s claims. That is the result of the necessary weighing of the respective benefits and disadvantages of the grant of the application which has been made in order to identify what the interests of justice dictate in the circumstances which have arisen for consideration: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61, at [14].

Costs

12. The usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. Here the event is the transfer order, transfer becoming necessary because the proceedings were commenced in this Court, rather than the Supreme Court of Queensland, which the parties agree should hear the case, it being the appropriate forum.

13. That both parties have unnecessarily incurred costs which would have been avoided had these proceedings been commenced in Queensland is apparent. That there is power to make what is, in effect, a costs thrown away order in those circumstances under the Civil Procedure Act 2005 (NSW), is undoubted: s 98.

14. The Court must exercise its powers having in mind the overriding purpose specified in s 56 of that Act, the just, quick and cheap resolution of the real issues in the proceedings.

15. Costs may be awarded in favour of a party where an order reflects a substantial capitulation by the other, given the circumstances which prevailed when the proceedings were commenced, even when an order is made by consent. I am satisfied that this is such a case.

16. Despite it being apparent that the claims should not have been brought in the District Court, as they were, no transfer application to have those proceedings transferred to the Supreme Court of Queensland was made, as it could have been. Instead, these proceedings were brought in this Court which it was soon accepted was not the appropriate forum and so a transfer application was soon made by Mr Williams, that accepting the position which the State had advanced even before these proceedings were commenced.

17. In all of those circumstances, I am satisfied that justice requires that a costs thrown away order be made in favour of the State, given Ms Pham’s evidence. That the costs which have been incurred in these proceedings to date reflect costs thrown away has to be accepted. Indeed, that was not disputed.

Orders

18. For these reasons I order that:

1. These proceedings be transferred to the Supreme Court of Queensland, pursuant to s 5(2) of the Jurisdiction of Courts Cross-Vesting Act1987 (NSW).

2. Mr Williams bear the State’s costs of these proceedings to date, as agreed or assessed.

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Decision last updated: 08 July 2024