Stanford v Insurance Commission of Western Australia

[2023] NSWSC 1457

Supreme Court

New South Wales

Medium Neutral Citation:

Stanford v Insurance Commission of Western Australia [2023] NSWSC 1457

Hearing dates:

On the papers

Date of orders:

27 November 2023

Decision date:

27 November 2023

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to s 8(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), the proceedings are transferred to the Supreme Court of Western Australia.

(2) Each party is to bear its own costs of the notice of motion filed 17 November 2023.

Catchwords:

CROSS VESTING – proceedings concern plaintiff who lives in Western Australia and an accident that occurred in Western Australia – application by defendant to transfer made promptly – plaintiff’s solicitor neither consents to nor opposes the application – order to transfer made – no point of principle

Legislation Cited:

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

Cases Cited:

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

British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83

Evans Deakin Industries Pty Ltd t/as EDI Rail v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2020] NSWSC 149

Category:

Procedural rulings

Parties:

Neil Stanford (Plaintiff)
Insurance Commission of Western Australia (Defendant)

Representation:

Solicitors:
Drexler Litigation Lawyers (Plaintiff)
Moray and Agnew Lawyers (Defendant)

File Number(s):

2023/00304530

Publication restriction:

Nil

JUDGMENT

1. The defendant, the Insurance Commission of Western Australia seeks an order by amended notice of motion filed on 17 November 2023 that the proceedings be transferred to the Supreme Court of Western Australia.

2. The order is not opposed by the plaintiff and an accommodation has been reached as to each party bearing its own costs of the motion should the Court decide to make the order.

3. The plaintiff commenced proceedings by statement of claim filed on 25 September 2023 alleging that he sustained injuries in a motorcycle accident caused by an unidentified driver or motor vehicle owner on 26 September 2020.

4. The defendant relies upon an affidavit of John Cooper sworn 1 November 2023 which deposes to the following matters relevant to the application. First, the plaintiff lives in Western Australia, the witness to the accident lives in Swan View Western Australia, treatment was received at Armadale Hospital Western Australia, the treating GP practices in Forrestdale in Western Australia and the plaintiff’s treating surgeon practices at Murdoch, Western Australia. Self- evidently, the defendant, Insurance Commission is also located in Western Australia.

5. Transfer under s 8(1)(a) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (“the Act”) depends upon whether it is in the interests of justice within the meaning of s 5(2)(b)(ii) of the Act that the proceedings be determined, in this case, by the Supreme Court of Western Australia.

6. In British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83, Harrison J (as the CJ at CL then was) collected the relevant principles:

“[25] The determination of whether it is in the 'interests of justice' under s 5(2)(b)(iii) for proceedings to be transferred to the Supreme Court of another state depends on what is the 'more appropriate' forum for those proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161] - [169] per Kirby J. Another way of putting the same inquiry is to ask which is the 'natural forum' for the proceedings: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44], Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69].

[26] In Spilliada Maritime Corp v Cansulex Limited [1987] 1 AC 460 at 478 Lord Goff identified some of the 'connecting factors' which were of importance in the application of the principle of forum non conveniens in England:

“So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as the availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business.”

[27] Those factors have been considered relevant in the assessment of the "interests of justice" in the application of s 5(2)(b)(iii) of the Act: see Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730E, Barry (supra) at [95] per Mason P; Schultz (supra) at [18] per Gleeson CJ, McHugh and Heydon JJ and at [163] per Kirby J. The location of the place of the wrong and the governing law of the wrong are also matters of prime importance in the exercise of the power of transfer under s 5(2)(b)(iii): see Barry (supra) at [7] per Spigelman CJ (a passage which was quoted with approval by Kirby J in Schultz (supra) at [165]). A further matter of importance in considering the "interests of justice" is whether the assessment of any questions arising in the litigation is dependent on a degree of local knowledge: see Bankinvest (supra) at 729D per Rogers AJA. There is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz (supra) at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J.”

7. Written submissions provided by the solicitor for the defendant succinctly and accurately stated the relevant considerations and their application here:

1. Whether it is in the “interests of justice” to transfer the proceedings depends on what is the “more appropriate” forum for the proceedings: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; HCA 61 at [13] (“Schultz”). The “more appropriate” forum may also be described as the “natural forum” for the proceedings.

2. There is no discretion to be exercised. If the Court determines that a transfer of the proceedings is in the “interests of justice” because another court is the more appropriate or natural forum, then it “shall” transfer the proceedings: Schultz at [14].

3. There are a number of relevant, non-exhaustive, factors as to whether another court may be the more appropriate forum: Evans Deakin Industries Pty Ltd t/as EDI Rail v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2020] NSWSC 149 at [5]), which may be summarised as follows:

1. The location of the tort;

2. The residence of the parties;

3. The convenience of the parties or witnesses;

4. The law governing the proceedings which necessarily relates to the location of the tort;

5. The experience of the court to provide an efficient and speedy trial;

6. The condition of the parties in personal injury cases.

8. As the solicitor for the defendant submitted, the accident and the negligence alleged occurred in Western Australia, the plaintiff resides in Western Australia, the defendant is the Insurance Commission of Western Australia, the identified lay witness resides in Western Australia, the health professionals identified as having provided treatment to the plaintiff reside in Western Australia, the plaintiff in his Statement of Claim has identified and conceded that the governing law for this matter will be that of Western Australia, and there would be no prejudice derived from transferring these proceedings to Western Australia.

9. Although there is no information presently available as to the plaintiff’s current medical condition, it would be reasonable to infer that it would be more convenient for him to have his case determined in Western Australia rather than undertaking travel to New South Wales.

10. Given that the accident occurred in Western Australia and that the plaintiff and all currently known witnesses reside in Western Australia, the inconvenience and expense that would be involved in having all parties and witnesses travel to New South Wales for a hearing is impractical and unjustified.

11. The Supreme Court of Western Australia is both the more appropriate and natural forum for the proceedings and so it is in the interests of justice for the transfer to occur.

Orders

12. I make the following orders:

1. Pursuant to s 8(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), the proceedings are transferred to the Supreme Court of Western Australia.

2. Each party is to bear its own costs of the notice of motion filed 17 November 2023.

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Decision last updated: 28 November 2023