Spence v CMPS and F Pty Limited
[1999] NSWSC 1281
•20 October 1999
CITATION: Spence v CMPS & F Pty Limited & Ors [1999] NSWSC 1281 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 20012/98 HEARING DATE(S): 20 October 1999 JUDGMENT DATE:
20 October 1999PARTIES :
Lisa Joy SPENCE v CMPS & F Pty Limited & OrsJUDGMENT OF: Simpson J at 1
COUNSEL : Mr K Andrews - Plaintiff
Mr S Kerr - DefendantSOLICITORS: McGrath Dicembre & Co - Plaintiff
Colin Biggers & Paisley - First Defendant
Baker & McKenzie - Second Defendant
McCabes - Third and Fourth DefendantCATCHWORDS: ACTS CITED: Jurisdiction of Courts (Cross-Vesting) Act 1987 DECISION: Order that the proceedings be transferred to the Supreme Court of Western Australia.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONSIMPSON J
Wednesday 20 October 1999
20012/98
Lisa Joy SPENCE v CMPS & F Pty Limited & OrsJudgment
1 This is an application under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 which provides as follows:
HER HONOUR :
“Where:
(a) The proceeding (in this subs referred to as the "relevant proceeding") is pending in the Supreme Court ...(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."
2 The principal proceedings are constituted by a claim by the plaintiff on behalf of herself and her two young children under the Fatal Accidents Act 1969 of Western Australia which, I am told, is in broadly equivalent terms to the New South Wales Compensation to Relatives Act.
3 The plaintiff's claim arises from the death of her husband, Howard Spence, on 21 March 1996 during the course of his employment. Mr Spence was employed by a company then titled Freeze It Cryogenics Pty Ltd, which company was engaged in work on a lengthy gas pipeline in Western Australia. Another employee, Andrew Legg, was injured in the accident that killed Mr Spence. As I understand it, the death and injury were caused by a gas leak involving liquid nitrogen.
4 The plaintiff's proceedings are brought against four corporate defendants. It is unnecessary here to state the various bases of the claims, although the fact of the four defendants itself is of some significance in the cross-vesting decision as will shortly appear.
5 Following Mr Spence's death a Coronial inquiry was conducted in Western Australia. The plaintiff was there represented by Perth based lawyers. In addition, criminal prosecutions were brought against three of the present defendants and one other defendant. Although the results of the prosecutions are immaterial to the present decision, it may be noted for completeness that only the charge against AJ Lucas Pty Ltd resulted in conviction.
6 The judgment of the Magistrate who heard the prosecution was placed before me and it is apparent that a considerable body of evidence was tendered. Each defendant in that case was represented by Western Australian lawyers and the significance of this is that those lawyers are already very familiar with the relevant evidentiary material. Mr Legg has commenced proceedings, claiming damages for personal injury arising out of the accident, in the District Court of Western Australia. Each of the present defendants is named as a defendant in his proceedings.
7 I was advised that the defendants have filed cross-claims against one another. The issues of liability raised in Mr Legg's proceedings may be taken to be substantially identical to those that will be raised by or on behalf of the plaintiff, although it cannot be assumed that both will conduct their cases in precisely the same manner.
8 Certainly it may be assumed that the issues raised by the litigation of the cross-claims will be identical, or very nearly so. I should add that it may be assumed that, if it has not already happened, the defendants in the present plaintiff's proceedings will also file cross-claims against one another.
9 It may further be confidently assumed that both cases on liability will involve the retention of expert witnesses. Two such experts who gave evidence in the prosecutions are employed by the Western Australian Department of Minerals and Energy, although the nature of their expertise does not appear to exhaust the issues that could be expected to arise in a claim of the sort here under consideration.
10 The defendant/applicants adduced evidence in this application that over one hundred boxes of relevant documents in relation to the pipeline project generally are in existence and are principally located in Perth.
11 The plaintiff on the other hand asserts that relevant documentary material, also voluminous, is held in Sydney.
12 I may say now that I put to one side any claim of inconvenience in relation to or arising from the need to transport documents from one jurisdiction to another. In these technologically advanced times, such considerations have all but disappeared. Indeed it was, I think, conceded by both counsel that little weight ought to be given to this aspect of the evidence.
13 The defendants have identified 14 potential witnesses, six of whom live in Western Australia. Others live in various states of Australia and one in Italy. Two only live in New South Wales.
14 The plaintiff's evidence in resisting the application is to the following effect: she lives, and at all relevant times has lived, with her two young children aged 6 and 8 in Sydney. She is unemployed and, should the proceedings be heard in Western Australia, it will be necessary for her to travel with them to that state. She will accordingly incur accommodation expenses. In this regard I note that no evidence as to her financial position or any resultant financial hardship was adduced.
15 If the proceedings are heard during school term this will result in the loss of schooling for the two children. She and her husband at all times lived in Sydney and all their financial records are held in Sydney. She has retained an accountant to investigate and advise upon the quantification of her claim in the event that she succeeds in establishing liability. All or most of the corporate defendants have or had their registered offices in Sydney.
16 The defendants accept that the only order I can make under the relevant statutory proceedings is one transferring the proceedings to the Supreme Court of Western Australia which would not have the effect of linking the proceedings of those brought by Mr Legg, those proceedings being at present in the District Court. Recognising the impact of that fact on the weight of their argument, they have jointly undertaken to apply in Western Australia for either the transfer of the plaintiff's proceedings to the District Court should they be successful in the present application, or for transfer of Mr Legg's proceedings to the Supreme Court of that state. They have further undertaken not to seek costs and in discussion I think the parties have agreed that the order for costs that they would urge the Western Australian court to make is that the plaintiff's costs of that application be costs in the cause.
17 Another matter that should be mentioned is that it is agreed that the relevant law to be applied on all issues is that of Western Australia. This is so, not only in relation to the question of liability and damages, but also in the application of limitation legislation, and this is significant because the plaintiff has commenced her proceedings out of time under Western Australia law and will have to make an application for extension.
18 It was urged upon me on behalf of the plaintiff that there is nothing unusual about this Court applying Western Australian law and this is undoubtedly so.
19 Having regard to all of the matters put before me I have concluded that the defendants have made out their case. The factors that lead me to this conclusion are:
1. The claim itself has virtually no connection with New South Wales. In saying this I recognise that if the plaintiff succeeds in establishing liability, the quantification of damages will depend upon her establishing her financial position and dependency in New South Wales, but this is not a matter of great difficulty and does not persuade me that this Court is the preferred forum.
2. The amount of relevant work already done by Western Australian based lawyers, not only representing the defendants but also representing the plaintiff. This is a matter of some significance.
3. The application of Western Australian law. While, as I said, the plaintiff argued that this Court regularly applies the law of other states it seems to me, other things being equal, where that law is being applied it is better applied by the courts of that state.
4. There is potential to avoid some of the duplication between the two sets of proceedings if the liability claims, at least by the plaintiff and Mr Legg, can be united or coordinated in some way. It may be possible for that to be done in Western Australia. It is not possible for that to be done if the plaintiff's claim remains in New South Wales.
5. The existence of the cross-claims. These claims should, if possible, be litigated together, not only to avoid duplication of costs and court time but also to avoid the undesirable potential for differing results in those claims.
20 Accordingly, I propose to make an order that the proceedings be transferred to the Supreme Court of Western Australia.
21 Mr Kerr, you will have to bring in short minutes of order to reflect that determination. The costs are to be costs in the cause and that can be incorporated in the short minutes.
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