State of Victoria v Patricia Dorothy Levine

[2001] NSWSC 592

CITATION:	State of Victoria v Patricia Dorothy Levine [2001] NSWSC 592
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11629/01
HEARING DATE(S):	19/06/01
JUDGMENT DATE:	22 June 2001
PARTIES :	State of Victoria v Patricia Dorothy Levine
JUDGMENT OF:	O'Keefe J

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	10266/00
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	S Pell - For plaintiff R Dalgleish - For defendant
SOLICITORS:	For plaintiff: Malcolm Johns & Company Sydney For defendant: Carroll & O'Dea Sydney
CATCHWORDS:	Cross-vesting - Criteria for cross-vesting - Uplifting from District Court to Supreme Court - Transfer to another Supreme Court for further transfer to County Court - Jurisdiction - Amendment of basis for uplifting from District Court - Small claim - Delay in application - Additional costs if transferred - Additional delay if transferred
LEGISLATION CITED:	Jurisdiction of Courts (Cross-Vesting) Acts 1987 s.5, s.8 District Court Act 1973 s.145 Wrongs Act 1958 (Vic) s.14B
CASES CITED:	Shannon v Lee Chun (1912) 15 CLR 157 Longhurst-Saunders v Cooper (1956) 73 WN (NSW) 455 Macdougall v Paterson (1851) 11 C.B. 755; 138 ER 672 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 224, 240 Smith v Watson (1906) 2 CLR 802 at 811 O'Hare v DPP (2000) NSWSC 430, 22 May 2000, unreported James Hardie & Co Pty Limited v Barry; Seltsam pty Limited v Barry (2000) 50 NSWLR 357 Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711 Spiliada Maritime corporation v Cansulex Ltd (1987) AC 460 Benson v Suncorp Metway Insurance Ltd (2000 TASSC, 28 June 2000
DECISION:	Summons dismissed, with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CORAM: O’KEEFE J

FRIDAY, 22 JUNE, 2001

11629/01 STATE OF VICTORIA v PATRICIA DOROTHY LEVINE
JUDGMENT


HIS HONOUR:

Introduction

1    This is an application by the State of Victoria (Victoria) to lift up into the Supreme Court an action pending in the District Court (No. 10266/2000) which has been commenced by Patricia Dorothy Levine (Mrs Levine) a resident of New South Wales, and to transfer her action to the Supreme Court of Victoria. Mrs Levine claims damages for personal injuries sustained by her when she fell in the Phillip Island Nature Park Reserve on 10 March 1999.

2 The application was commenced by a summons which sought an order under s 145 of the District Court Act, 1973. However for reasons which will be found later in this judgment, during the course of addresses Victoria sought an amendment to the summons by substituting s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 as the basis for relief. Although the application for amendment was made after the close of evidence it did not raise any matter not covered by the evidence and so in accordance with Shannon v Lee Chun (1912) 15 CLR 157 and Longhurst-Saunders v Cooper (1956) 73 WN (NSW) 455 the amendment was allowed.

Facts

3    The Phillip Island Nature Park is under the control of the Department of Natural Resources and Environment of the State of Victoria. It is apparently a popular tourist venue and attracts people from all over Australia for the financial gain of Victoria. One of the attractions of the park is the viewing of penguins. To facilitate this a stand has been erected and it is on this stand that Mrs Levine fell and injured herself. There was only one eye witness. She is a resident of Queensland.

4    Mrs Levine’s injuries were reasonably substantial. However since she is now 73 years of age and no longer in employment, there is no substantial economic loss over and above the cost of hospitalisation, operations and medical treatment. The estimates of the value of the claim given by both counsel were between $20,000 and $50,000. It is thus, on any view, a relatively small claim appropriate to be heard in the District Court, possibly by an arbitrator or referee. The nature of the case commends it as likely to be of one to perhaps two days duration if conducted in the District Court.

5    Following her injury there was correspondence between the solicitors representing Mrs Levine and those representing Victoria. Victoria quickly denied liability and adopted a hard line in relation to the matter. Through its solicitors it advised that “there will never be any offers of settlement” and that “this claim…would have to be heard in Victoria on a forum conveniens basis”. This is not a correct statement as to the principles involved in the determination of such a question . Furthermore in what can be described as a heavy handed - perhaps bellicose or bullying would be a more accurate adjectives - approach its solicitors sought by correspondence to intimidate Mrs Levine from pursuing her rights. They described any proposed action as a “precarious route she will have to travel to seek damages” and said that she would have to “run the gauntlet”. The correspondence stressed “the costs peril”. Through its solicitors Victoria stated that it would:

“never make any offers of settlement and if…successful…will pursue Mrs Levine for our costs which after a four or five day trial would be some tens of thousands of dollars”.

Furthermore it indicated that for any expert evidence that Mrs Levine obtained it would “obtain competing evidence threefold”, thus increasing the length of any trial and escalating the costs.

6    Whilst the attempted intimidation of Mrs Levine proved to be ineffective it is none the less deplorable particularly when it is considered against the background of the relative financial positions of the parties; one a State government with vast resources; the other a disability pensioner. Correspondence of such a kind should not have been sent.

7    Mrs Levine commenced her action in the District Court on 19 December 2000. By that time Victoria had known of the proposed claim for many months, had held a view of the locus in company with Mrs Levine and had received a copy of the lengthy expert report prepared on behalf of Mrs Levine.

8    The District Court process was served on Victoria under the Service and Execution of Process Act 1992. It was accompanied by a notification which drew attention to its right to obtain a stay under s 20 of the Service and Execution of Process Act 1992 and advised it to get legal advice as soon as possible if it was thought the proceedings should be transferred to a court of a State or Territory other than the State of New South Wales. Notwithstanding this the present application was not made until 29 May 2001, more than five months after the institution of the proceedings. Furthermore as at the date of hearing of the present application no defence has been filed, no medical examination of Mrs Levine has been arranged on its behalf, no expert report from it has been exchanged and as far as can be ascertained from the evidence nothing has been done by Victoria to bring the matter in the District Court to a state of readiness for hearing.

9    The District Court action has now reached a stage at which the status conference in imminent and a hearing date is likely to be obtained not later than November 2001 and perhaps during the period September/October 2001.

10    It was conceded from the Bar table that should the matter be transferred to the Supreme Court of Victoria there would be a need to have a directions hearing in that Court and a decision made as to the transfer of the matter to the County Court. The delay anticipated was an additional eighteen months.

Applicable Law

11 Section 145 of the District Court Act, 1973 on which Victoria originally relied provides as follows:

“1. Proceedings may upon application of a party, be removed into the Supreme Court by order of the Supreme Court upon such terms as to payment of costs, giving security for the amount claimed for costs, or otherwise, as the Supreme Court thinks fit.
2. An action for damages in respect of personal injury or death (other than a motor accident claim) may be removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court.
3. (not relevant). “

12 The amount likely to be awarded in the District Court action the subject of the present application does not satisfy the monetary requirement in s 145(2). Nor does it satisfy the requirements of the alternative basis for removal prescribed in s 145(2), since that alternative requires that there be sufficient reason for trying the action in the Supreme Court. The purpose of the present application is not to have the District Court action tried in the Supreme Court of New South Wales but to have it transmitted to the Supreme Court of Victoria most likely for trial in the County Court of Victoria.

13 When the above analysis of s 145 was adverted to in the course of argument, counsel for Victoria recognised the problem with the way in which the application was framed. He then sought and was granted the amendment referred to in paragraph 2 of this judgment.

14 The relevant source of power for the uplifting of a matter from the District Court to the Supreme Court for the purposes of having it transferred to a court of another state or territory is s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Act). That section provides as follows:

“ (1) Where -
(a) a proceeding (in this subsection referred to as “the relevant proceeding”) is pending in -
(i) a court, other than the Supreme Court, of the State;
(b) it appears to the Supreme Court that -
…
(ii) an order should be made under this subsection in relation to the relevant proceedings so that consideration can be given as to whether the relevant proceeding should be transferred to another court,
the Supreme Court may…make an order removing the relevant proceeding to the Supreme Court”

15    The power to cross-vest to the Victorian Supreme Court is conferred by s 5 of the Act. Relevantly that section provides as follows:

“5(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);
…
(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”.

16    The provisions of s 5(2) not only empowered the Supreme Court to transfer the relevant proceeding to another Supreme Court they also mandate this to be done in the event that this court determines that it is in the interests of justice that the relevant proceedings should be determined by the Supreme Court of another State or of a Territory.

17    The reasoning in Macdougall v Paterson (1851) 11 C.B. 755; 138 ER 672 is relevant in this regard. Jervis CJ said that:

“when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application”
…
“the exercise of such power depends not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.” (supra at 773;679)

This statement was approved by the House of Lords in Julius v Lord Bishop of Oxford (1880) 5 App. Cas. 214 at 224, 240. The same line of reasoning was applied by Griffith CJ in Smith v Watson (1906) 2 CLR 802 at 811 and by McLelland J (as he then was) in Re Fettell (1951) 52 SR 221. (See also O’Hare v D.P.P. (2000) NSWSC 430, 20 May 2000). It would seem that it was to such considerations that Spigelman CJ was referring in James Hardie & Co Pty Limited v Barry; Seltsam Pty Limited v Barry (2000) 50 NSWLR 357 when he said in relation to s 5(2)(b)(iii):

“This power does not confer a discretion, in the sense that the Court exercises a power of choice. The Court makes a judgment as to what ‘the interests of justice’ require and having made the judgment that the proceedings ought to be determined in another Court, the court is obliged to transfer the proceedings.” ( supra at 361)

18    The test to be applied in the present case in relation to the interests of justice is set out in Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711. In that case Street CJ, in the course of his examination of the effects and purpose of s 5 of the Act, said:

“It calls for what I might describe as 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. Consideration of textured principle and deep learning - in particular principles of international law such as forum non conveniens - have no place in a cross-vesting adjudication. There is, in substance, no principle to be enunciated other than the necessity of applying the specific considerations stated in the cross-vesting legislation primary amongst which is pursuit of the interests of justice. Internal administrative decisions within a court as to where particular proceedings should best go forward in the interests of justice are in many ways akin to the making or refusing of transfer orders under the cross-vesting legislation.” (supra at 714)

19    Street CJ agreed with the judgment of Rogers AJA as did Kirby P in relation to matters relevant to the present application. Rogers AJA expressed the principle to be applied in the following terms:

“The only lode star that a judge may steer by is what did the interests of justice dictate should be done?” ( supra at 727)

20    He then considered the approach that should be adopted in relation to the determination of which court was the “more appropriate” to hear and determine the substantial issues. He adopted the criteria laid down by Lord Goff of Chievley in Spiliada Maritime Corporation v Cansulex Ltd (1987) AC 460 and the approach of Lord Templeman in relation to the content of that phrase namely:

“The factors which the court is entitled to take into account in considering whether one forum is more appropriate are legion. The authorities do not, perhaps cannot, give any clear guidance as to how these factors are to weighted in any particular case”. ( supra at 465)

21    In James Hardie & Co Pty Ltd v Barry (supra) Mason P, with whom Priestley JA agreed, adopted (at 377 para 87) the reasoning of Rogers AJA in Bankinvest AG v Seabrook (supra), expressly adopting that part of the judgment of Rogers AJA which followed the approach of the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd (supra) in relation to the determination of which forum is the more appropriate.

22    Rules of Court have been made in respect of the transfer of proceedings pursuant to the cross-vesting legislation. Part 74 rule 8 provides that:

“Where a party to any proceedings in the court intends to contend that -
(a) the court should exercise jurisdiction pursuant to any provision of a subject act or any law of the Commonwealth or of a State relating to cross-vesting jurisdiction; or
(b) that the court should transfer the proceeding to another court pursuant to any such provision or law,
the party shall, on or as soon as practicable after the commencement of the proceedings, apply to the court for a determination of the question whether or not the proceeding should be transferred to another court.”

23    Although it may be argued that this rule does not apply directly to proceedings which have been commenced in a New South Wales court other than the Supreme Court, it should, at very least, be regarded as applying by way of analogy to such proceedings.

24    There would be no utility in bringing the action up from the District Court into this court if it were then not to be transferred to the Supreme Court of Victoria. If the action were to be brought up into this court but not transferred it would lose its proximate hearing date, would be put into a call-over list and would have to take its turn to have a date allocated on the basis that it was a matter but recently brought into the court. As a consequence any advantage that had accrued to Mrs Levine as a result of the action having been commenced in December 2000 would be lost. In addition there would be no purpose in bringing it into this court except for the purpose of transferring it. To do so would involve Mrs Levine in considerable cost in the light of the costs rules of this court.

25    There is a question as to the power of the court to transfer the matter pursuant to s 5 of the Act in the circumstances of the present application. Section 5(2)(b)(iii) requires it to be in the interests of justice that the transferred action “be determined by the Supreme Court of another State” (italics added). The proposal by Victoria is to have the action remitted to the County Court if it is transferred to the Supreme Court of Victoria. Thus the purpose of the transfer is not to have the action “determined by” the Supreme Court of Victoria, but rather to use the Supreme Court of Victoria as a conduit. Moreover, even if the matter were transferred to the Supreme Court of Victoria and heard by that court it is likely that Mrs Levine would be subjected to a jeopardy in relation to costs in that court as it would be in this court if it were lifted up but not transferred.

26    However in the circumstances I think it is desirable that I determine the question of the interests of justice on the assumption that the matter could be brought up to this court and then transferred to the Supreme Court of Victoria for the purpose of that court remitting it to the County Court of Victoria.

Analysis

27    Victoria contends that it is in the interests of justice that the matter be transferred because of the following factors:

1. That the place of the accident is in Victoria.

2. The location of the defendant in the District Court proceedings namely, Victoria.

3. The fact that:

(a) all potential witnesses from the Phillip Island Nature Park reside in Victoria;
(b) all experts thus far retained by both parties reside in Victoria;
(c) the initial treating doctors of Mrs Levine reside in Victoria;
(d) the designing architect of the viewing platform and relevant lighting engineers are also in Victoria.


4. A view may be necessary in order for the court properly to understand the evidence.

5. The law governing the claim by Mrs Levine is that of the State of Victoria.

28    Whilst it is correct to say that it is a relevant factor that the place of the accident was Victoria, in my opinion this is not a critical factor in the present case nor is the fact that the initial treating doctors reside in Victoria. The place of the injury is some considerable distance from Melbourne, the estimate by counsel being some hours drive. A hearing in Melbourne would not be a great advantage in relation to a view and if the matter were heard in a District Court closer to the locus, it is likely that the Melbourne experts would still have to travel a considerable distance. Furthermore the fact that Victoria attracts tourists from many parts of Australia outside Victoria for financial gain is akin to the situation dealt with by Underwood J in Benson v Suncorp Metway Insurance Ltd (2000 TASSC, 28 June 2000). I respectfully agree with his reasons (see para 13) and with his practical suggestion that witnesses who live out of the State in which the action is heard could, if it is so desired, give evidence by way of appropriate video and like links.

29    In relation to non-professional witnesses, namely park staff, no witnesses have been nominated, no statements have been filed and no indication given as to what evidence any such members of staff may give.

30    That the substantive law governing the action is the law of Victoria does not present a problem. The Wrongs Act 1958(Vic) is a straight forward piece of legislation and s 14B of that Act does not present any difficulties in construction or of understanding. It could as readily be applied in the District Court of New South Wales as in the Supreme Court or County Court of Victoria.

31    Wherever the action is heard one of the parties will be put to additional expense. Any such expense is better able to be borne by Victoria with its considerable resources of government, as opposed to the situation of Mrs Levine who is an aged disability pensioner.

32    In relation to the medical witnesses, it should be noted that the initial treating doctors, including the operating surgeon, have not seen Mrs Levine since 16 March 1999. Furthermore there has been no indication given as to any dispute in relation to their evidence and on the face of it, it is unlikely that there would be any dispute in relation to the nature and extent of injury or of the operative treatment carried out. It is thus probable that the reports of such doctors will be used, without the necessity of calling them. That is certainly the practice in New South Wales. Moreover there is no evidence that Victoria has qualified any other doctor in relation to Mrs Levine’s injury. She has not been required to attend for any medical examination on behalf of Victoria and it was conceded by counsel that no such examinations had been arranged.

33    The doctors who are more relevant to ongoing disability and other sequelae of Mrs Levine’s injuries are in Sydney. Victoria could readily qualify doctors resident in Sydney in relation to the present condition of and prognosis for Mrs Levine.

34    The possibility of a view being required is, in my opinion, remote. The photographs, both black and white and in colour, that are included in the Report of the expert retained on behalf of Mrs Levine and made available to Victoria as well as annexed to an affidavit filed on behalf of Victoria, are clear and revealing in relation to the facts likely to be relevant to the issue of liability.

35    There are other factors which need to be taken into account and which in my opinion off set and prevail over those raised by Victoria. One is the likely hearing date if the matter were to be transferred. The court was informed by counsel for Victoria that were the matter to be transferred there would be a probable delay of some eighteen months before the matter came on for hearing. Such a delay assumes promptness on the part of the defendant in the District Court proceedings in taking procedural steps. I do not have confidence that this would occur. My reason for this is twofold. First the delay on the part of Victoria in the action to date. Notwithstanding that the process was filed in December 2000 it has not filed a defence, has not made any statements available, has not had Mrs Levine medically examined or apparently taken any other steps to prepare the matter for hearing, and this notwithstanding the provisions of the rules of court, the imminence of the status conference and the proximity of a hearing date. The second reason is related to the correspondence to which I have already adverted. It strongly suggests intransigence on the part of Victoria which does not auger well for co-operation in bringing the action on for hearing in the minimum time. However even that minimum time from date of transfer would mean that Mrs Levine would be denied a decision until at best, late 2002 or more likely in the first quarter of 2003 rather than in September/November 2001. This is a very significant delay and is severe injustice especially to a lady of Mrs Levine’s age.

36    The imminence of the hearing in the District Court is a factor which must weigh heavily in favour of the matter remaining in New South Wales. Allied to this is the fact that a hearing in the District Court is estimated at one perhaps at worst two days whereas the estimate for the hearing in Victoria is four or five day trial and “some tens of thousands of dollars” in costs. For a pensioner this consequence of transfer would be a very severe imposition and, in my opinion, unjust.

37    The age of Mrs Levine is, as I have already indicated, a matter which militates strongly in favour of an early hearing and also weighs heavily in favour of the matter remaining in New South Wales in order to ensure that this occurs.

38    Additional cost, which are likely to be irrecoverable if the matter is transferred to Victoria, are another factor weighing in favour of the action not being transferred. These would include costs of instructing different solicitors and perhaps counsel who would be likely to be in Victoria, in place of those who have been acting for Mrs Levine in New South Wales.

39    One further matter should be adverted to, namely the considerable delay on the part of Victoria in making the present application. As I have indicated the process was filed in December 2000. The present application was not made until 29 May 2001 more than five months after the action was commenced. Such delay is unexplained, as is the failure of Victoria to take any procedural steps in relation to the action. It is unacceptable for a party to wait until the action the subject of an application for transfer is proximate to hearing to make an application for transfer.

40    Consideration of the factors relevant to the interests of justice and as to which is the most appropriate court to hear and determine Mrs Levine’s action which operate in the present case has led me to the conclusion that it is not in the interests of justice to transfer Mrs Levine’s action in the District Court to the Supreme Court of Victoria and that the more appropriate forum for the action is the District Court of New South Wales. For that reason alone, the action should not be lifted up from the District Court and transferred to the Supreme Court of Victoria. Thus even if there were power in the circumstances of this case to transfer the action, which I have indicated I do not think there is, I would not order its transfer.

41    For the foregoing reasons the application by the State of Victoria is refused.

42    The order of the court is:

Summons dismissed, with costs.

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Last Modified: 07/19/2001