Statham (a pseudonym) v State of Queensland
[2025] VSC 660
•23 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2024 05376
| KARLIE STATHAM (A PSEUDONYM) | Plaintiff |
| v | |
| STATE OF QUEENSLAND (and others in accordance with the schedule) | Defendants |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 July 2025 |
DATE OF JUDGMENT: | 23 October 2025 |
CASE MAY BE CITED AS: | Statham (a pseudonym) v State of Queensland |
MEDIUM NEUTRAL CITATION: | [2025] VSC 660 |
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CROSS-VESTING – Plaintiff commenced proceeding alleging liability of defendants for historical physical and sexual abuse in Queensland – Application seeking transfer of the proceeding to the Supreme Court of Queensland – Whether Supreme Court of Queensland is the more appropriate forum – Interests of justice – Consideration of connecting factors – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(2) – BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Irwin v State of Queensland [2011] VSC 291 considered – Interests of justice do not require transfer.
JURISDICTION – Whether Supreme Court has federal jurisdiction – Right to proceed – Whether exercise of jurisdiction restricted or curtailed – Whether ‘seriously considered’ obiter dicta that must be followed – Australian Constitution, ss 75(iv), 77(iii) and 78; Judiciary Act 1903 (Cth), ss 39(2), 56 and 58 – Breavington v Godleman (1988) 169 CLR 41; Commonwealth v Mewett (1997) 191 CLR 471; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; Hill v Zuda Pty Ltd (2022) 275 CLR 24 considered and discussed – Application for the Court to decline to exercise jurisdiction refused.
PRACTICE AND PROCEDURE – Conditional appearance – Summons filed by first defendant within 14 days – No jurisdictional objection then identified – Steps beyond 14 day period – Jurisdictional objection discovered and introduced months later in submissions in reply – Whether objection abandoned earlier by conduct – Whether submission to jurisdiction – Whether Court should ‘otherwise order’ – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 8.08 – Rein v Stein (1892) 66 LT 469; Lindgran v Lindgran [1956] VLR 215; Breavington v Godleman (1988) 169 CLR 41; Robinson v Kuwait Liaison Office (1997) 145 ALR 68 considered and discussed – Court should not otherwise order.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | JP Brett KC and LT Brown SC with L Allan and AL Slater | Arnold Thomas & Becker |
| For the First Defendant | A Woods SC with R Chaile and I Smojver | Clayton Utz |
| For the Second Defendant | S Parsons, solicitor | Mills Oakley |
| For the Third Defendant | C Harris, solicitor | Carroll & O’Dea |
| For the Fourth Defendant | RN Annesley KC with CT Morshead | Rennick & Gaynor Solicitors as Melbourne agents for RedeMont |
HIS HONOUR:
A Introduction
On 7 October 2024, the plaintiff commenced proceedings in this Court alleging that several defendants, including the State of Queensland (‘first defendant’), are liable for incidents of historical physical and sexual abuse suffered by the plaintiff during periods in which she was a ward of the State. The incidents are alleged to have occurred in Queensland.
On 13 November 2024, the first defendant filed and served a notice of conditional appearance under cover of a solicitor’s letter which states, relevantly, as follows —
3.Our client has filed a Notice of Conditional Appearance as it considers that your client has commenced the Proceeding in the wrong jurisdiction, and it considers the appropriate jurisdiction for this Proceeding is the Supreme Court of Queensland. Further, our client considers it to be an abuse of process that your client has commenced the Proceeding in circumstances where your client has an existing concurrent claim against our client under the Personal Injuries Proceedings Act 2002 (Qld) … .
4.Accordingly, we put your client on notice that our client intends to file an application:
(a)pursuant [to] section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 … on the basis that, among other things, it is in the interests of justice for this Proceeding to be heard in the Supreme Court of Queensland;
(b)alternatively, to seek a temporary stay of the Proceeding pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) pending the outcome of your client’s current claim under the PIPA.[1]
[1]Updated Court Book (‘UCB’) 40 (emphasis added).
As will be apparent, the plaintiff had earlier given a notice of claim under s 9 of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’).[2] The plaintiff took no steps in that pre-litigation process beyond sending the notice of claim.
[2]UCB 23-38.
On 22 November 2024, the first defendant filed its defence in the present proceeding. The defence does not refer to any point of a jurisdictional kind.
On 26 November 2024, the first defendant filed a summons directed to the grounds earlier foreshadowed.[3] In argument on the present application, the first defendant acknowledged, correctly, that neither of those grounds was jurisdictional in nature.[4]
[3]UCB 1-3. Cf Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), r 8.08(4). The Supreme Court (General Civil Procedure) Rules 2025 (Vic) commenced on 8 September 2025, after the hearing in the present proceedings. There is no presently relevant difference between the 2015 and 2025 Rules.
[4]Transcript (‘T’) 28.
On 20 December 2024, a timetable of orders was made in respect of the filing of affidavits and written submissions. That timetable was later revised.
The second and third defendants filed appearances and defences. Other steps were taken in connection with the substantive proceeding including, it seems, discovery and interrogation.[5]
[5]T89.
There seems to have been an issue concerning the proper name and identity of the second and fourth defendants. On 22 January 2025, the plaintiff filed an amended writ and statement of claim.
On 29 January 2025, the fourth defendant also filed a notice of conditional appearance. However, the fourth defendant did not file and serve any summons in support of its notice and, on 21 May 2025, the fourth defendant filed its defence.
As to affidavit material —
(a) the first defendant filed an affidavit of Timothy Charles Jones, solicitor, and an affidavit of Matthew Glen Edwards, solicitor;[6]
[6]UCB 6-288.
(b) the second defendant filed an affidavit of Sonya Parsons, solicitor;[7]
(c) the fourth defendant filed three affidavits of Stephen Uniacke, consultant solicitor;[8] and
(d) the plaintiff filed, in particular, two affidavits of Cameron Doig, solicitor, and a subsequent affidavit of Sara Kaurin, solicitor.[9]
[7]UCB 706-12.
[8]UCB 713-812.
[9]UCB 289-705.
The fourth defendant objected to the admissibility of certain paragraphs of the affidavits of Mr Doig.[10]
[10]UCB 948-51. At the hearing, it was indicated that the objections could be determined on the papers: T82.
The first defendant filed comprehensive written submissions dated 25 February 2025.[11] In that document —
[11]UCB 813-28.
(a) argument was directed to various factors in support of an overall contention that the Supreme Court of Queensland is the more appropriate forum;
(b) that is, the first defendant directed submissions to the relief sought in paragraph 1 of its summons — namely, an order pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (‘Cross-vesting Act’) transferring the proceeding to the Supreme Court of Queensland;[12]
[12]UCB 828 [56].
(c) paragraph 2 of the summons — by which a temporary stay had been sought of the present proceeding pending the outcome of the plaintiff’s ‘proceeding’ under PIPA — was implicitly abandoned;[13]
(d) no part of the argument was identified as jurisdictional in nature; and
(e) unsurprisingly, no mention was made of the first defendant having filed a notice of conditional appearance.
[13]Ibid.
In response —
(a) the fourth defendant filed supporting submissions dated 4 March 2025;[14] and
(b) the plaintiff filed contrary submissions dated 13 March 2025, as well as short supplementary submissions dated 21 March 2025.[15]
[14]UCB 829-46.
[15]UCB 847-71.
All of the above submissions were directed to the question of whether the Supreme Court of Queensland was the more appropriate forum.
In reply submissions dated 16 April 2025,[16] the first defendant submitted, relevantly, as follows —
… nothing in the plaintiff’s 13 March 2025 submissions … or the accompanying 21 February 2025 affidavit displace the fact that the interests of justice support this Court transferring this proceeding to the Supreme Court of Queensland. The first defendant also submits, further and alternatively, that, in circumstances where the first defendant has not submitted to the Court’s jurisdiction, the Court should decline to exercise jurisdiction or otherwise determine that the Supreme Court of Queensland is the more appropriate forum by reason of s 58 of the Judiciary Act 1903 (Cth) … .[17]
[16]UCB 872-85.
[17]UCB 872-3 [3].
As will be apparent, the first part of that passage concerns the issue of transfer pursuant to s 5(2) of the Cross-vesting Act. However, the further and alternative submission was new.
Later in the reply submission, the first defendant developed the new point with particular reference to —
(a) section 75(iv) of the Australian Constitution (‘Constitution’);
(b) sections 39(2), 56 and 58 of the Judiciary Act1903 (Cth) (‘Judiciary Act’);
(c) parts of the reasoning of members of the High Court in Breavington v Godleman (‘Breavington’);[18] and
(d) its notice of conditional appearance.[19]
[18](1988) 169 CLR 41 (‘Breavington’).
[19]See generally UCB 880-5 [31]-[41].
In that general connection, the first defendant submitted that the Court should —
… determine … that it would be appropriate for it to decline to exercise its jurisdiction to hear and determine the proceeding … .[20]
[20]UCB 885 [42].
Correspondence ensued between the solicitors.[21] At one point, the plaintiff’s solicitors indicated that submissions in response to the new point would be filed and served prior to the hearing.[22] At several subsequent points, the plaintiff’s solicitors indicated that s 78B of the Judiciary Act was engaged and that an adjournment would be required.[23] Ultimately, the plaintiff’s solicitors indicated an intention to object to the raising of the first defendant’s new point at such a late stage.[24]
[21]UCB 965-1102.
[22]UCB 1018.
[23]UCB 1033, 1036, 1039.
[24]UCB 1056.
Whatever else might be said about the various correspondence, the plaintiff did not then prepare and serve any s 78B notices or any written submissions directed to the first defendant’s new point.
The matter came on for hearing on 30 May 2025. The hearing was adjourned in order that an amended summons might be filed by the first defendant directed to the new point, s 78B notices served and any written submissions prepared.
On 2 June 2025, the first defendant filed an amended summons in the following relevant terms —
1.An order pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) that the proceeding be transferred from the Supreme Court of Victoria to the Supreme Court of Queensland.
2.Alternatively to order 1, an order pursuant to section 58 of the Judiciary Act 1903 (Cth) that the Court decline to exercise jurisdiction and that the proceeding be heard and determined by the Supreme Court of Queensland.
3.In the alternative to order 1, an order pursuant to rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), that this proceeding be temporarily stayed pending the outcome of the Plaintiff’s proceeding issued under the Personal Injuries Proceedings Act 2002 (Qld).
Shortly thereafter, the plaintiff filed and served a s 78B notice.[25] No Attorney-General sought to intervene or provided submissions.
[25]UCB 1112-4.
Relevant written submissions were prepared and filed by the plaintiff and first defendant respectively.[26]
[26]UCB 1120-31.
Various parties filed and served further affidavit material, including in respect of at least two other proceedings in the Supreme Court of Victoria in which it seems that the first defendant has taken the new point.[27] However, much of that material was directed to the costs of the hearing on 30 May 2025.[28]
[27]Neocli v State of Queensland S ECI 2024 03223; Goostrey v State of Queensland S ECI 2025 02577.
[28]UCB 1132-335.
The application came back on for argument on 28 July 2025. In that regard —
(a) paragraph 1 of the amended summons was in issue between all four defendants, on the one hand, and the plaintiff, on the other;
(b) paragraph 2 of the amended summons was in issue between only the first defendant and the plaintiff.
During argument, an issue arose concerning whether the first defendant had waived its objection made by conditional appearance or otherwise submitted to the jurisdiction of the Court.[29] After the hearing, the first defendant and plaintiff each filed further written submissions directed to that issue.[30]
B Relevant provisions and authorities
[29]See, in particular, T13-16, 28-30, 46-7.
[30]First defendant’s submissions concerning s 58 of the Judiciary Act 1903 (Cth) dated 4 August 2025 (‘First defendant’s waiver submissions’) and plaintiff’s submissions in reply on the question of objection to jurisdiction – s 58 of the Judiciary Act 1903 (Cth) dated 11 August 2025 (‘Plaintiff’s waiver submissions’).
Cross-vesting
In respect of paragraph 1 of the amended summons, the first defendant relies on s 5(2)(b)(iii) of the Cross-vesting Act.
That section provides, relevantly, as 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.
As explained by Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz (‘Schultz’), a proceeding must be transferred if it is in the interests of justice, in that, the ‘other’ Supreme Court is the more appropriate forum.[31]
[31]BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [14] (‘Schultz’).
Albeit that their Honours strictly dissented on the question of remitter,[32] their reasoning in respect of s 5(2)(b)(iii) was broadly similar to that of the majority[33] and has since been relied upon regularly in argument in cross-vesting applications. In the present instance, all relevant parties referred directly or indirectly to the reasoning of Gleeson CJ, McHugh and Heydon JJ in Schultz.[34]
[32]Ibid [32].
[33]Ibid [63], [77], [99] (Gummow J), [162]-[165], [170] (Kirby J), [177] (Hayne J), [259], [261] (Callinan J).
[34]See UCB 815-6 [10], 830 [7], 865 [109], 868 [130].
In that context, Gleeson CJ, McHugh and Heydon JJ explained that the interests of justice are not the same as the interests of one party. However, justice is not ‘divorced from practical reality’.[35] In that connection, their Honours stated —
In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is importance to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even whether they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.[36]
[35]Schultz (n 31) [15].
[36]Schultz (n 31) [19].
A sequence of relevant principles were later identified and summarised by Robson J in Irwin v State of Queensland (‘Irwin’).[37] Among other things, his Honour stated that —
[37][2011] VSC 291, [14] (‘Irwin’).
(a) the court should adopt a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute;[38]
[38]Irwin (n 37) [14(g)]. Cf Schultz (n 31) [13].
(b) the convenience of the parties and witnesses may be relevant in a tortious action, although the factor may not carry substantial weight ‘in this day and age’ because of the ability to move witnesses around at small expense and little inconvenience, and also because evidence may be given via video link;[39]
[39]Ibid [14(l)(iii)].
(c) in a personal injury action, the condition of a party may be a relevant factor;[40]
[40]Ibid [14(l)(vi)].
(d) as a general rule, significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort;[41]
(e) each case depends on its own particular facts;[42] and
(f) the list of connecting factors is impossible to state exhaustively and, equally, the weight to be given to each factor must vary from case to case.[43]
[41]Ibid [14(m)].
[42]Ibid [14(p)].
[43]Ibid [14(q)].
His Honour thereafter reasoned as follows —
19Bearing in mind the matters put forward by Mrs Irwin, as outlined below, it appears to me that it would be more convenient to the State of Queensland to call the evidence of the police in Queensland. On the other hand, this convenience can not be overstated. The use of video link evidence is common today and is regularly used in common law and other proceedings. The Supreme Court of Victoria has video link facilities in its various court rooms which are regularly used to take the evidence of interstate and even local witnesses. The witnesses do not even have to travel to a court to give their evidence. Facilities for using video link are common throughout Australia. Video link facilities have revolutionised the convenience and cost of dealing with witnesses who find it inconvenient to get to court. I accept that there are forensic advantages in the witness being present in court as against appearing by video link. I do not overlook these.
20On the other hand, Mrs Irwin currently resides in Victoria. Mrs Irwin is treated by medical practitioners in Victoria and has been assessed for the purposes of this action by a practitioner in Victoria. It would be convenient to Mrs Irwin to call her treating medical professionals and medico legal consultants in Victoria as they will all presumably live in Melbourne. The respective advantages to each party on the issue of witnesses appears to balance out.
21The defendant is obviously based in Queensland. Mrs Irwin was in the Northern Territory at the time she learned of her son’s death. She alleges that the state of Queensland owed her a duty of care. The alleged negligent acts occurred in Queensland. Without more, on balance these connecting factors would tend towards Queensland being the natural forum for determining the proceeding.
22It would, however, be a heavy burden on Mrs Irwin’s finances and health to be required to pursue this proceeding in Queensland. Mrs Irwin is mentally unwell, as a result of her alleged psychiatric response to the death of her son. Her solicitor deposes that he believes that she is subject to depression, which is exacerbated at various times. Mrs Irwin is unable to engage in employment by reason of her condition and is in somewhat straitened financial circumstances. Mrs Irwin’s support base is in Melbourne. Naturally, she will be a material witness in her own proceeding. The cost to her of going to Queensland for the trial is a relevant factor. Theoretically, she might be able to give evidence by video link. It would be unfair on her, though, to not be present at her own proceeding in a matter of such importance for her future. Any consideration of her position strongly favours the proceeding being determined in the Supreme Court of Victoria.
23The State of Queensland has the full resources of the State behind it. It is well able to afford to bring witnesses to Melbourne, if that is in fact necessary. Naturally, the executive arm of the government of Queensland is based in Queensland. I am able to take judicial notice, however, of the fact that its servants and agents travel outside the State carrying on the affairs of the State. Lawyers acting for Queensland appear in the High Court in Canberra and in courts throughout the country. Similarly, Victorian lawyers attend to matters in Queensland. Queensland is a very large state. It is about the same distance from Brisbane to Cairns as it is from Brisbane to Melbourne. It is used to conducting its affairs over large distances.
Since Irwin was decided in 2011, the use of audio-visual technology for remote witnesses has, of course, become considerably more commonplace, even in jury trials.
I should add that many cases have identified hardship, including financial hardship, as a potentially relevant consideration.[44]
[44]See Kellow v Irish Murphy’s Pty Ltd [2010] VSC 239, [9]; Lloyd v Riverland Regional Health Service Inc [2010] VSC 350; Taylor v Woolworths [2012] VSC 286, [17]; Williams & Ors v TT-Line Company Pty Ltd & Anor [2019] VSC 55; Hackett v State of South Australia [2019] VSC 311, [8].
For completeness, I note that part of the present argument was directed to the similarity or contrast, as the case may be, with the circumstances apparent in several other recently decided cross-vesting applications.[45] The defendants particularly emphasised Stanford Barton (a pseudonym) v The State of New South Wales (‘Barton’).[46] However, as I have noted, each case must be decided on its own facts.[47]
[45]In particular, Stanford Barton (a pseudonym) v The State of New South Wales [2025] VSC 57 (‘Barton’), Tracy v Bishop Edwards [2025] VSC 94, McCormack v State of New South Wales [2025] VSC 214 (‘McCormack’); Armstrong (a pseudonym) v State of New South Wales [2025] VSC 270 (‘Armstrong’). See also Vernon v Kaefer Integrated Services Pty Ltd& Anor [2023] VSC 667 (‘Vernon’).
[46]Barton (n 45).
[47]Irwin (n 37) [16].
Declining to exercise jurisdiction
Argument in respect of paragraph 2 of the amended summons referred, particularly, to the following provisions of the Constitution —
75. Original jurisdiction of High Court
In all matters:
…
(iv) between States, or between residents of different States, or between a State and a resident of another State;
…
the High Court shall have original jurisdiction.
…
77. Power to define jurisdiction
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
…
(iii) investing any court of a State with federal jurisdiction.
78. Proceedings against Commonwealth or State
The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.
It was common ground that the present proceeding is in federal jurisdiction and that the Court is invested with that jurisdiction via s 39(2) of the Judiciary Act.
Section 39(2) of the Judiciary Act provides, relevantly —
The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, …
In argument, much reference was made to ss 56 and 58 of the Judiciary Act. Those sections appear in Pt IX of the Judiciary Act entitled ‘Suits by and against the Commonwealth and the States’ and provide, relevantly —
56 Suits against the Commonwealth
(1) A person making a claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth:
…
(b) if the claim arose in a State or Territory—in the Supreme Court of that State or Territory or in any other court of competent jurisdiction of that State or Territory; or
…
58 Suits against a State in matters of federal jurisdiction
Any person making any claim against a State, whether in contract or in tort, in respect of a matter in which the High Court has original jurisdiction or can have original jurisdiction conferred on it, may in respect of the claim bring a suit against the State in the Supreme Court of the State, or (if the High Court has original jurisdiction in the matter) in the High Court.
As I have indicated, the first defendant relies upon various passages in Breavington and submits that those elements of reasoning must be taken to determine the meaning and effect of s 58.[48] It will later be necessary to examine the relevant parts of Breavington in some detail.
[48]In that regard, the first defendant referred to Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [134] (‘Farah Constructions’); Hill v Zuda Pty Ltd (2021) 275 CLR 24, [25] (‘Hill v Zuda’); Price v Spoor (2021) 270 CLR 450, [17]–[18] (‘Price’).
For her part, the plaintiff, in particular, emphasised aspects of later decisions of the High Court, namely Commonwealth v Mewett (‘Mewett’)[49] and British American Tobacco Australia Ltd v Western Australia (‘BATA’).[50] The plaintiff described those decisions as comprising ‘the present state of the law’, notwithstanding the obiter in Breavington.[51]
[49](1997) 191 CLR 471 (‘Mewett’).
[50](2003) 217 CLR 30 (‘BATA’).
[51]UCB 1123 (footnote 4).
Both relevant parties referred to an article by Mr Graeme Hill published in the Melbourne University Law Review in 2006 entitled ‘Private law actions against the Government (Part 1) — Removing the Government’s immunity from suit in Federal cases’ (‘Hill article’).[52]
[52](2006) MULR 716 (‘Hill article’).
As with Breavington, it will later be necessary to consider parts of Mewett, BATA and the Hill article in more detail.
In oral argument, senior counsel for the plaintiff directed attention to provisions of the Crown Proceedings Act 1980 (Qld) (‘Crown Proceedings Act’), particularly —
8 Mode of proceeding
(1)Subject to this Act and any other Act or law, a claim by or against the Crown may be made and enforced by a proceeding by or against the Crown under the title the ‘State of Queensland’.
(2)…
9 Procedure
(1) A proceeding by or against the Crown —
(a)shall be instituted in the court that would have jurisdiction if the proceeding were between subject and subject;
(b)shall be instituted and proceeded with in accordance with the procedure of the court specifically applicable thereto or, if there is no such procedure, as nearly as possible in accordance with the procedure applicable to a proceeding between subject and subject.
Submission to jurisdiction
As I have indicated, the question whether the first defendant waived the new point or otherwise submitted to the jurisdiction of the Court was, to some extent, addressed in oral argument. However, the first defendant and plaintiff developed their respective arguments in written submissions filed after the hearing.
Order 8 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) is directed to appearance by a defendant in a proceeding commenced by writ or originating motion. Relevantly, the Rules provide as follows —
8.02 Appearance before taking step
Except as provided by Rule 8.08 or 8.09 or by leave of the Court, a defendant shall not take any step in a proceeding unless the defendant has first filed an appearance.
…
8.08 Conditional appearance
(1) A defendant may file a conditional appearance.
(2) A notice of conditional appearance shall be in Form 8B.
(3)A conditional appearance shall have effect for all purposes as an unconditional appearance, unless, on application by the defendant, the Court otherwise orders.
(4)Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed.
In substance, the first defendant contends that —
(a) its objection pursuant to s 58 of the Judiciary Act is ‘not … capable of waiver in the ordinary sense’;[53]
[53]First defendant’s waiver submissions (n 30) [5].
(b) the present circumstances may be contrasted with those in Breavington;[54]
(c) in filing a conditional appearance, the first defendant took objection ‘in a broad sense’ that was sufficient to preserve ‘at all times’ the conditional nature of its appearance and so it should not be taken to have submitted to the Court’s jurisdiction;[55] and
(d) late amendment of the first defendant’s summons with the consent of the plaintiff has ‘cured’ any non-compliance with the Rules.[56]
[54]Ibid [7]-[10].
[55]First defendant’s waiver submissions (n 30) [11]-[15]; T15, 46-7. Cf Robinson v Kuwait Liaison Office (1997) 145 ALR 68 (‘Robinson’); United Group Resources Pty Ltd v Calabro (No 4) [2010] FCA 791 (‘United Group (No 4)’).
[56]First defendant’s waiver submissions (n 30) [16]. Cf Hunt v Molk (1976) 11 ALR 288.
In response, among other things, the plaintiff submits that —
… the conditional appearance filed by the first defendant had effect for all purposes as an unconditional appearance, except in so far as it sought the transfer of this proceeding to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Cross-Vesting Act. Other objections to jurisdiction, not referred to in the summons within 14 days of the filing of the conditional appearance, were waived. The first defendant’s application pursuant to s 58 of the Judiciary Act should, therefore, be dismissed.[57]
[57]Plaintiff’s waiver submissions (n 30) [10].
C Relevant evidence and submissions
I have earlier referred to the affidavits filed and served by the parties as well as the written objections of the fourth defendant to certain paragraphs in the two relevant affidavits of the plaintiff’s solicitor, Mr Doig.
Affidavit evidence
The various affidavits and associated exhibits are of considerable volume. That said, for the most part, the principal affidavit material[58] is directed to —
[58]As distinct from the affidavit material directed to the late raising of the first defendant’s new point and subsequent issue of costs, particularly the affidavit of Matthew Glen Edwards affirmed 28 May 2025 (UCB 54-288), the affidavit of Sara Kaurin affirmed 29 May 2025 (UCB 952-1102), the second affidavit of Matthew Glen Edwards affirmed 21 July 2025 (UCB 1132-1158), the affidavit of Stephen Crofton Uniacke sworn 17 July 2025 (UCB 1159-1167) and the affidavit of Jodie Harris affirmed 23 July 2025 (UCB 1168-335).
(a) elements of the chronology of relevant events;
(b) the plaintiff’s pleaded allegations; and
(c) the various ‘connecting factors’ regarding transfer.
In respect of the latter, in particular, the relevant parts of the affidavit of Mr Jones, solicitor for the first defendant, are directed to factors such as —
(a) the place of the claimed torts;
(b) the location of the parties and their solicitors;
(c) the location of alleged perpetrators;
(d) the location of potential witnesses;
(e) the availability of trial dates in the Supreme Court of Queensland;
(f) the plaintiff’s notice of claim under PIPA; and
(g) the position taken by the second and third defendants.[59]
[59]UCB 12-20.
The subsequent affidavits of Ms Parsons, solicitor for the second defendant,[60] and Mr Uniacke, consultant solicitor for the fourth defendant,[61] are directed to such of the above factors as are in each case appropriate.
[60]UCB 706-12.
[61]UCB 713-812.
In particular, Mr Uniacke, who practices in Queensland, addresses —
(a) the applicable law;
(b) relevant practices in the Supreme Court of Queensland; and
(c) relevant practices in respect of claims made under PIPA.[62]
[62]See, in particular, UCB 722-24, 789-94.
By contrast, the first relevant affidavit of the plaintiff’s solicitor, Mr Doig, is directed to factors including —
(a) the mode of trial;
(b) the potential for delay;
(c) the location of the parties’ legal representatives;
(d) the plaintiff’s location and ‘related matters’;
(e) the location of the second defendant;
(f) the plaintiff’s educational and employment history in Victoria;
(g) the location of the plaintiff’s witnesses;
(h) the location of ‘individuals’ identified by the first defendant; and
(i) the location of ‘individuals’ identified by the second defendant.[63]
[63]See generally UCB 289-304.
The ‘related matters’ include certain aspects of the plaintiff’s instructions, to which the fourth defendant has taken written objection, as well as the content of medical reports concerning the plaintiff’s psychiatric condition and circumstances.
The various medical reports are exhibited, particularly —
(a) an independent medico-legal report of Dr Zeeva Cohen, consultant psychiatrist, dated 9 May 2023;[64]
[64]UCB 312–25.
(b) a report of Ms Banu Moloney, treating psychologist, dated 3 August 2023;[65]
[65]UCB 309–11.
(c) a supplementary report of Ms Moloney dated 4 February 2025;[66]
(d) a report of Dr John Boby Kizhakoot Francis, treating general practitioner, dated 14 February 2025;[67] and
(e) a further report of Dr Cohen dated 20 February 2025.[68]
[66]UCB 326–8.
[67]UCB 329–30.
[68]UCB 331–7.
It is presently appropriate to refer to some of the detail in those reports.
Dr Cohen and Ms Moloney initially reported prior to the notice given by the plaintiff under PIPA.
In that regard, in April 2023, Dr Cohen conducted a telehealth consultation and recorded a history that includes the plaintiff’s claims of abuse during her periods of care in Queensland.
In particular, Dr Cohen records that the plaintiff left school in year 10, completed a hairdressing apprenticeship and worked as a hairdresser for 25 years without difficulty before commencing law school at the age of 40. Dr Cohen notes that the plaintiff is ‘currently in a different career as a lawyer’.[69]
[69]UCB 319, 321.
In argument, the fourth defendant emphasised aspects of the history taken by Dr Cohen, including that —
… she spent most of her time with her dog, taking her dog for walks and did not really associate with anyone in [a town in central Victoria]. She said she would read a lot and did have two friends in Melbourne who were good supports to her.[70]
[70]UCB 318.
Dr Cohen summarised her assessment as follows —
[The plaintiff] is a 56 year old Indigenous woman who presents with symptoms consistent with chronic complex posttraumatic stress disorder and major depressive disorder.
This is in the context of severe longstanding sexual abuse, physical abuse, emotional abuse and neglect during her placements at an orphanage … and subsequent foster placements … . She presents with intrusive re-experiencing phenomena, features of avoidance, ongoing hypervigilance, mistrust, impacts to self esteem, loss of confidence and acting out behaviours earlier in life. She has had one long term unsuccessful relationship which appears to have been characterised by coercive control and presents as currently socially isolated with some difficulties in the workforce. She has been in receipt of treatment since approximately 2019 with appropriate psychopharmacological agents and attending a psychologist for the past two years.[71]
[71]UCB 319-20.
Reporting later the same year, Ms Moloney identifies herself as a psychologist, family therapist and qualified professional supervisor with experience with First Nations families and communities, and says that she has seen the plaintiff monthly since March 2020.[72]
[72]UCB 309.
Ms Moloney reports that the plaintiff’s work with disadvantaged First Nations clients triggered her own ‘history of removal from family and the subsequent ongoing physical, sexual, and racial abuse’.[73]
[73]UCB 309.
In respect of that trauma, Ms Moloney refers to the plaintiff’s ‘loss of sense of security, identity and self-esteem’, her need to work to prevent feelings of ‘confusion, fear, depression, anxiety, and unhappiness’ as well as a need to work against a feeling of being ‘trapped’.[74]
[74]UCB 310.
As to the ongoing consequences of trauma, Ms Moloney states, in particular —
[The plaintiff] was placed into Institutional care and was never given the opportunity to reconnect with either her Mother or Father who are both deceased. The psychological impact of this separation from her parents and the denial of any opportunity to form attachment cannot be underestimated. This has contributed to enduring trauma and a sense of disconnection and a clear sense of self.
Disconnection with siblings due to thoughtless and chaotic care arrangements for siblings has resulted in some of her siblings resorting to self-medication, chronic illnesses, and dramatically shortened life expectancy. This ongoing loss of siblings compounded by the loss of opportunity to grow up with her older siblings has had the impact of profound grief and significantly constant retriggering of her own and of her siblings’ abuse in State sanctioned care.
Growing up in [S]tate sanctioned care and the deliberate policy to deny any connection to culture, identity and language has impacted on [the plaintiff’s] capacity to belong in both a First Nations community and White society. This has profoundly impacted on her ability to form trusting relationships with others. Any attempt by her to fit into the White society has consistently been met with overt and covert racism which has further contributed to her sense of dislocation whilst being in her own country.
Because [the plaintiff] has felt that she has lived in two worlds, this has impacted on her sense of identity and her search for her Aboriginality and Culture.[75]
[75]UCB 310-11.
Ms Moloney states that the plaintiff lives with depression and anxiety that is ‘a constant battle in her personal and professional life’. Among other things, Ms Moloney states —
I cannot emphasise enough the extent of support a severely traumatised person needs in an ongoing way to be able navigate life, work, and relationships. The effort [the plaintiff] has to make on a daily basis in order to continue to maintain a sense of emotional stability and to negotiate and enjoy relationships with others is considerable.[76]
[76]UCB 311.
In the context of the present application, in February 2025, Ms Moloney was evidently asked to answer written questions in respect of the prospect that the plaintiff’s proceeding might be transferred to Queensland.
In response, Ms Moloney states, relevantly —
…
All of [the plaintiff’s] abuse occurred in Queensland. I have little doubt that travelling back to Queensland would trigger painful memories. [The plaintiff’s] current ability to function is closely linked to being in her own environment with the comfort of having ready access to professional and local community supports.
…
[The plaintiff’s] family members, many if not all of whom have also suffered abuse and traumatic institutional neglect, still reside in Queensland. They would inevitably hear that she had been required to travel to Brisbane and would almost certainly make contact. To date, [the plaintiff] has protected herself and her family from much of the distressing details of her abuse by creating her own life in [a town in central Victoria]. Having to make contact at these times would further distress her and distress her vulnerable family members.
For some time now, [the plaintiff] has had a dog who has been a therapy companion, critical to helping her manage her anxiety. Being separated from her companion and therapy pet would further compromise [the plaintiff’s] psychological health and well-being.[77]
[77]UCB 326.
In respect of psychosocial supports, Ms Moloney expands as follows —
[The plaintiff’s] supports – psychological, emotional, workplace, collegial, cultural and her pet dog are all in Victoria. It is not possible to replicate even some of these were she to be disadvantaged by having to travel to Queensland, the State where the abuse took place.
In my view, the additional stress of not being in her safe and familiar environment is likely to exacerbate her anxiety and set back her healing process.
It is possible that not having these ongoing supports could lead to a break down in [the plaintiff’s] current fragile mental health.
[The plaintiff] left Queensland to put distance between herself and all the reminders of her trauma. While living and working in Victoria, she has developed and built cultural safety and supports for herself. She does not have this in Queensland. Cultural support for her in Queensland could not be simply ‘plugged in’. This sort of support requires a deep and sensitive understanding of what is involved in creating cultural connections, safety and belonging.[78]
[78]UCB 327.
In that general connection, Ms Moloney quotes the plaintiff directly as follows —
What I can tell you is that in the past when I was unable to access my supports my mental health declined rapidly and I found myself so full of anxiety that I was barely able to leave the house.[79]
[79]UCB 328.
As to the prospect that the plaintiff might give evidence via audio-visual link to a court hearing the trial of her action in Queensland, Ms Moloney states —
In my experience, there is a therapeutic benefit for victims to be able to be in Court and relate personally to the Judge. Such an experience with somebody seen as just and fair can contribute to healing for many victims. A remote audio-visual process would significantly diminish [the plaintiff’s] opportunity to experience this important and significant aspect of her attempt to not only be heard but also have a healing experience.[80]
[80]UCB 327.
In the same context, the plaintiff’s treating general practitioner, Dr Francis, was evidently asked for his opinion. Among other things, his report records —
(a) his diagnosis of chronic anxiety and depression on a background of ‘multiple childhood abuse’;
(b) his prescription of anti-anxiety and anti-depressant medication;
(c) that regular counselling has been undertaken by the plaintiff with the psychologist, Ms Moloney;
(d) his assessment that the plaintiff is very anxious and depressed, her condition is chronic and that her mental health can be worsened by any small triggers; and
(e) his opinion that ‘it will be difficult and detrimental for [the plaintiff’s] mental health to travel and stay [in] Brisbane for the trial of her claim’.[81]
[81]UCB 329-30.
In contrast with the opinion of Ms Moloney, Dr Francis states that it would be good for the plaintiff to give evidence via audio-visual link.[82]
[82]UCB 330.
For completeness, Dr Cohen examined the plaintiff in February 2025, again via telehealth.
Dr Cohen recorded a history that, among other things —
(a) the plaintiff continues to ‘see a psychologist in Richmond, Melbourne approximately fortnightly’;[83]
[83]UCB 333. I note that Ms Moloney’s report identifies an address in Richmond: UCB 326.
(b) the plaintiff had kept the traumatic events ‘in’ for years and said that her family would ‘lean on her financially and emotionally’;[84]
[84]UCB 333.
(c) the plaintiff attends her general practitioner and has been prescribed escitalopram 30 mg and mirtazapine 30mg as well as antihypertensive medication;[85]
[85]UCB 334.
(d) the plaintiff’s move to Victoria had been ‘good’ as it has given her distance from her family;[86]
(e) the plaintiff has close friends in Melbourne and central Victoria that she relies on for emotional support;[87] and
(f) the plaintiff has found ‘the claims process extremely anxiety provoking’.[88]
[86]Ibid.
[87]Ibid.
[88]UCB 334.
In that general connection, Dr Cohen confirmed her earlier diagnosis and otherwise summarises her assessment as follows —
She has endeavoured to progress her life by moving from Queensland to Victoria where she has set up home accessing appropriate supports and treatment as well as engaging in a new work place. Her relationships with family members in Queensland remain conflicted and reportedly exploitative placing her at risk of decompensation.[89]
[89]UCB 335.
As to specific questions directed to travel by the plaintiff to Brisbane for a trial or, alternatively, the giving of evidence remotely, Dr Cohen states —
Based on today’s reassessment, it is my opinion that it would be detrimental for [the plaintiff] to travel to and stay in Brisbane for the trial of her claim. She does not have sufficient supports in Brisbane; is at risk of exploitation from family members, does not have access to services there and no longer has a life to support her there. She remains fragile with active symptomatology and in need of ongoing treatment from her current treating practitioners in Victoria as well as support.
…
It is my opinion that should [the plaintiff] need to give evidence remotely via audiovisual link to a court in Queensland, it is likely to exacerbate her condition owing to the triggers associated with Queensland where the index abuse has occurred. Any legal delays are likely to exacerbate her condition as her claim has been longstanding, reactivating of trauma symptoms and stressful for her. She should not at any time be socially or emotionally isolated as she tends to become overwhelmed and at risk of decompensation, in my opinion.[90]
[90]UCB 336.
Dr Cohen thereafter refers to the plaintiff’s reliance on her treating practitioners, four friends and dog in Victoria, and otherwise repeats her opinion that in the absence of such supports the plaintiff’s symptoms could be exacerbated and result in decompensation.[91]
[91]Ibid.
None of the considerable volume of material produced by the defendants included any relevant medical opinion evidence.[92]
[92]Mr Uniacke, solicitor for the fourth defendant, deposed to the defendants having arranged, or sought to arrange, a medico-legal examination of the plaintiff by Dr Jon Steinberg, psychiatrist, of Brisbane: UCB 797 [7]-[11]. No report of Dr Steinberg was exhibited to any of the various affidavits. That said, in argument, senior counsel for the fourth defendant informed the Court that the plaintiff had attended a medico-legal assessment on behalf of the defendants the previous week and that the defendants were awaiting the report: T89.
I should add, for completeness, that —
(a) a subsequent affidavit of Mr Doig, solicitor for the plaintiff, addresses the content of certain material produced in answer to a subpoena;[93] and
(b) an affidavit of Sara Kaurin, solicitor for the plaintiff, addresses a relatively minor issue relating to another case.[94]
[93]UCB 510-703.
[94]UCB 704-5.
Determination of objections
As I have noted, the fourth defendant took written objection to certain paragraphs in the affidavits of Mr Doig,[95] specifically —
[95]UCB 948-51.
(a) paragraphs [10] to [12] of his first affidavit[96] — concerning the likely progress of the plaintiff’s PIPA claim were the proceeding to be transferred to Queensland — which were said to be inadmissible opinion evidence and hearsay;
[96]UCB 290-1.
(b) paragraphs [13] to [14] of his first affidavit[97] — concerning ‘indicative timelines’ derived from certain institutional abuse claims in the Supreme Court of Queensland — which were said to be not relevant;
(c) paragraphs [31] to [34] of his first affidavit[98] — recording the substance of certain instructions given by the plaintiff, including in respect of her trauma and fears if the proceeding were to be transferred to Queensland — which were said to be ‘opinion evidence with no proper basis’ and hearsay; and
(d) paragraphs [7] to [18] of his subsequent affidavit[99] — concerning the content of certain subpoenaed records — which were also said to be ‘opinion evidence with no proper basis’ and not relevant.
[97]UCB 291-2.
[98]UCB 297-8.
[99]UCB 512-3.
The above arguments were not developed in oral argument. Senior counsel for the fourth defendant indicated that the objections should be determined on the papers.[100]
[100]T82.
In an interlocutory application of the present kind, the fourth defendant’s objections to the effect that paragraphs of the affidavits of Mr Doig should be disregarded as hearsay cannot be accepted. Among other things —
(a) in an interlocutory application, an affidavit may contain a statement of fact based on information and belief if the grounds are set out;[101]
(b) accordingly, affidavit evidence in such applications commonly states instructions obtained;[102] and
(c) if the present objection were to be accepted and applied consistently, many parts of the affidavits of the defendants should also be disregarded, including parts of the affidavits of the solicitor for the fourth defendant, Mr Uniacke.
[101]Rules (n 3), r 43.03(2).
[102]See, eg, Irwin (n 37) [22].
The substance of the fourth defendant’s contentions in respect of ‘opinion evidence’ are also not able to be accepted.
In that regard, the contention of the fourth defendant that might outwardly be thought to carry the most substance concerns paragraphs [11] and [12] of Mr Doig’s first affidavit, especially the extent to which those paragraphs concern the product of his enquiries with ‘a number of Queensland solicitors and barristers’.
However, as I have noted, hearsay evidence may presently be received and the basis for the evidence is there identified, albeit imperfectly.
Further, the evidence plainly amounts to an assessment made by Mr Doig based in the underlying provisions and practice together with the substance of the experience of the ‘Queensland solicitors and barristers’. If necessary, the former is largely assessable by reference to the underlying documents and the latter is really a hearsay expression of experience, rather than opinion. In that sense, the evidence is little different, at least in its essential form, to Mr Uniacke’s own evidence concerning his experiences with the system in Queensland.[103]
[103]See, eg, UCB 789-93.
In the end, the issue seems to me to be one of weight, at best, rather than admissibility.
Beyond that, there seems to me to be no substance at all in the fourth defendant’s other contentions in respect of so-called ‘opinion evidence’. Nor is there any substance in the objections founded in the claimed irrelevance of timelines derived from identified cases or the contents of subpoenaed material.
Transfer submissions
In that overall context, as I have earlier noted, the parties exchanged detailed written submissions. In substance —
(a) the defendants submitted that various connecting factors demonstrate that the proceeding has a ‘real and substantial connection’ to Queensland and, accordingly, that the Supreme Court of Queensland is the more appropriate forum;[104] and
(b) by contrast, the plaintiff submitted that a consideration of the various factors indicates that it is not appropriate for the proceeding to be transferred.[105]
[104]See generally UCB 813-46, 872-80.
[105]UCB 847-69.
At the hearing, the legal representatives distilled the contentions advanced.
In that connection, senior counsel for the first defendant[106] helpfully identified the affidavit material by reference to which, he submitted, there were six reasons supporting transfer. He emphasised that —
[106]Oral submissions in respect of the issue of transfer were made by A Woods KC as senior counsel for the first defendant.
(a) the alleged conduct and therefore negligence was in Queensland;
(b) the applicable law is therefore that of the State of Queensland;
(c) the plaintiff commenced a claim under PIPA;
(d) certain parties and their solicitors are located in Queensland;
(e) aspects of the convenience of the parties favour Queensland; and
(f) the Supreme Court of Queensland has ‘a particular flexibility and availability’.[107]
[107]T55-8.
It was common ground that the relevant conduct was alleged to have occurred in Queensland and therefore that the substantive law of Queensland applies.[108]
[108]T60.
That said, senior counsel for the first defendant did not contend that the relevant laws could not be dealt with in this Court. In substance, he submitted that it was preferable that the task be undertaken in the Supreme Court of Queensland.[109]
[109]T62-5.
As to PIPA, senior counsel emphasised that the plaintiff had commenced that pre-litigation process, which ‘remains pending’. Senior counsel submitted that the plaintiff’s commencement of that process via her present solicitors was indicative of a ‘level of comfort’ in prosecuting her proceeding in Queensland.[110]
[110]T57, 66-8.
As to the prospect that completion of the PIPA process might complicate the continuance of the present proceeding were it to be transferred to Queensland, senior counsel later proffered limited concessions.[111]
[111]T69, 103-4. Cf Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (‘Cross-vesting Act’), s 11(3).
As to matters of location, senior counsel for the first defendant emphasised that the solicitors for the first defendant, third defendant and fourth defendant are all in Queensland and that the second defendant’s solicitors are based in New South Wales. By contrast, the plaintiff’s solicitors are based in Melbourne but, it was said, ‘represent clients in Queensland as well’. In that context, it was submitted that ‘a purely statistical analysis’ favours transfer to Queensland.[112]
[112]T70-1.
In respect of the parties, senior counsel emphasised that while the plaintiff is based in regional Victoria, the proceeding is in Melbourne.[113]
[113]T71.
As to the other parties, senior counsel submitted that —
The first defendant is, obviously, the State of Queensland. It doesn’t have any relevant presence in Victoria. The second defendant … [has] general counsel and a registered office in Melbourne, but archives in Leichardt in Sydney. The third defendant is a Queensland body, as is the fourth defendant. And, in my submission, when those locations are weighed up they also strongly favour … Queensland.[114]
[114]Ibid.
As to the convenience of the parties, senior counsel first addressed the position of the plaintiff and submitted, among other things, that —
(a) she had lived ‘most of her life in Queensland’;[115]
[115]T72.
(b) her concern about her family finding out about the proceeding was not unusual;[116]
[116]T73.
(c) she was not required to disclose the proceeding to her family, although she seems to have disclosed it to her sister;[117]
[117]Ibid.
(d) the proceeding could be heard in Rockhampton or Brisbane and even if the proceeding were heard in Melbourne the plaintiff would still have to travel from regional Victoria;[118]
(e) in any event, such concerns were likely to ‘confront a litigant no matter where they’re dealing with their case’;[119] and
(f) the suggestion that she would call 36 witnesses was ‘an overreach’ and, in any event, ‘in modern litigation … physical attendance isn’t always required’.[120]
[118]Ibid.
[119]T73-4.
[120]T74.
In respect of the specific issue of the plaintiff’s psychiatric health, senior counsel submitted —
There isn’t any evidence of the kind that you see in a number of the other cases where, perhaps, the expert witness or perhaps the treater has talked about very dire consequences, which is often the case in [a] transfer application. The difficulties of attending a trial in Queensland, much of that will be experienced whether or not the trial is in Melbourne or Queensland. And, obviously, psychological suppose [sic: support], which is routinely needed by plaintiffs who are litigating their claims in this area, would be available online, as it generally has been for the last five years or so.[121]
[121]T75.
Senior counsel emphasised that the plaintiff’s treating psychologist and two of her friends were in Melbourne, not central Victoria.[122]
[122]Ibid.
In respect of the risk of psychiatric breakdown, senior counsel submitted that ‘every plaintiff … runs that risk’ and otherwise submitted that the plaintiff could rely upon supports ‘on the phone or online’. Senior counsel contrasted the present circumstances with those in McCormack v State of New South Wales (‘McCormack’).[123]
[123]T76-7. Cf McCormack (n 45).
In respect of the defendants’ witnesses, senior counsel submitted that while it was ‘simply not known at this stage’ which witnesses would be called, ‘the defendants’ lay witnesses are largely in Queensland’.[124] Later, senior counsel referred to evidence of very elderly and infirm ‘potential witnesses’.[125]
[124]T72-3.
[125]T77.
In respect of the ‘flexibility and availability’ of the Supreme Court of Queensland, senior counsel referred to the evidence and submitted that —
… there is at least an indication of significant flexibility on the part of the Queensland court there. The compulsory conference which still needs to happen for the pre-litigation process can happen quickly, and that [is] set out in [PIPA] and you’ve seen what Mr Uniacke [the fourth defendant’s solicitor] says about how quickly that can happen.
There are relatively few steps that have been taken here, and … they’ll be taken to be in the Queensland proceeding, either to be used in the compulsory conference or in the proceeding if the proceeding doesn’t settle.[126]
[126]T78.
Senior counsel for the first defendant otherwise referred to mode of trial, which had been raised by the plaintiff. He submitted that, as a matter of authority, the factor is irrelevant.[127]
[127]T78. I do not regard the issue of mode of trial to be of any present significance and it is likely irrelevant. Accordingly, the issue will be put to one side.
Senior counsel completed his submissions by comparing the present circumstances with those considered in three recent cases.[128]
[128]T78-81: McCormack (n 45); Barton (n 45); Armstrong (n 45).
The legal representatives of the second and third defendants adopted the submissions of the first defendant.[129]
[129]T81.
Senior counsel for the fourth defendant also adopted the submissions of senior counsel for the first defendant. That said, she sought to advance ‘a few extra things’.[130]
[130]T81-2.
In respect of matters including ‘the care needs of the plaintiff and the potential exacerbation of her psychological condition’, senior counsel for the fourth defendant fiercely criticised the plaintiff for not swearing an affidavit of her own. Senior counsel also criticised aspects of the reports of Ms Moloney, Dr Francis and Dr Cohen as well as the affidavit of the plaintiff’s solicitor.[131]
[131]T82-7.
In that connection, it was submitted, for example, that there was no specific evidence that the plaintiff’s dog would be unable to travel to Queensland with her for a trial.[132]
[132]T85.
Senior counsel for the fourth defendant then turned to the issue of PIPA and provided a summary of the relevant sections before explaining the substance of the two parts of that scheme. Senior counsel submitted that it was ‘most likely that division one would effectively have already been complied with’ and, in respect of division two, the ‘work that’s already been done in Victoria is not lost’. In that context, senior counsel submitted that ‘this matter could be before a court in a very short period of time and in a position to ask for a trial date’.[133]
[133]T87-9.
Further, and seemingly in respect of any delay that might be occasioned as a consequence of transfer, senior counsel for the fourth defendant pointed to the plaintiff’s own unexplained delays and said that the plaintiff’s submission was ‘disingenuous’.[134]
[134]T91.
Finally, senior counsel asserted that some of the witnesses potentially to be called by the fourth defendant were elderly and in Queensland. She submitted that ‘elderly witnesses often struggle more with video’.[135]
[135]Ibid.
In response, senior counsel for the plaintiff[136] first referred to PIPA and emphasised that the defendants had not waived the requirements. Senior counsel also said that the defendants could not be expected to co-operate in respect of the PIPA requirements, and pointed to a letter from the solicitors for the fourth defendant.[137]
[136]Oral submissions in respect of the issue of transfer were made by JP Brett KC as senior counsel for the plaintiff.
[137]T92.
From that point, senior counsel for the plaintiff acknowledged that the alleged torts were committed in Queensland and that Queensland law therefore applies. That said, he submitted that the arguments concerning any difficulties in applying that law were ‘unjustified’.[138]
[138]T93-4.
Senior counsel for the plaintiff then referred to the location of the parties and witnesses. In that connection, he submitted that there is a real issue as to whether any trial of the matter in Queensland would be in Brisbane or Rockhampton. He submitted, in particular, that —
(a) if the trial were in Brisbane, then the defendants’ elderly and infirm witnesses would probably have to travel anyway, or give evidence via video link; and
(b) if the trial were in Rockhampton, there would be only one or two Supreme Court sittings there per annum.[139]
[139]T94-5.
In respect of witnesses, senior counsel acknowledged that the plaintiff would not call the number identified in the affidavit of the plaintiff’s solicitor. However, he submitted that it was unlikely that the large number of potential witnesses identified by the various defendants would ever end up being called.[140]
[140]T95.
Senior counsel for the plaintiff then moved to what he described as the ‘heart of the matter’, namely ‘the effect of these proceedings on the plaintiff’. He described that as ‘the determinative consideration’ and referred to aspects of the opinions of Dr Cohen and Ms Moloney as well as the plaintiff’s diagnosis and her fragility.[141]
[141]T96-8.
In that general connection, senior counsel submitted as follows —
…it’s completely clear from the uncontradicted medical evidence that’s before Your Honour, that travelling to Queensland in itself would be damaging to the plaintiff, being made to be absent from her ongoing supports, which are not only her dog, not only her contact with her psychiatrist, but also contact with her community, and one can imagine the familiarity of being in one's own bed.
These things, to be taken away from those at a time which is already going to … be exceptionally stressful; being asked to go back to the scene of the crime, so to speak, and revisit what happened there in evidence, would be in our respectful submission, unacceptably damaging to the plaintiff. Extraordinarily and unacceptably damaging.[142]
[142]T98.
In reply, senior counsel for the first defendant —
(a) pointed to at least one ‘difficulty’ relating to the Queensland provision concerning the discretion to award interest;
(b) submitted that there was no evidence concerning what had been said by senior counsel for the plaintiff in respect of sittings in Rockhampton;
(c) noted that it was not clear on the evidence where the first defendant’s ‘departmental witnesses’ are located; and
(d) submitted that the plaintiff’s supports are ‘already scattered to some extent’.[143]
[143]T99-100.
Thereafter, senior counsel for the first defendant and senior counsel for the fourth defendant each conveyed instructions obtained in respect of the PIPA requirements.
In that regard, senior counsel for the first defendant said that —
… the State of Queensland … would waive compliance with the relevant requirements of that Act, apart from disclosure and completion of a liability response pursuant to s 20 … and the convening of a compulsory conference pursuant to s 36.[144]
[144]T103.
I should note that senior counsel for the plaintiff described that concession as ‘really not a waiver at all’.[145]
[145]Ibid.
Senior counsel for the fourth defendant stated her instructions, as follows —
… my client would waive the division 1 compliance and in respect of division 2, disclosure and interrogatories have been made and so that is effectively complied with. And so all that is needed by the plaintiff would be to serve a part 2 of the claim which is in relation to economic loss and it could refer to the actuarial report which is already being served.[146]
[146]T104.
Jurisdiction submissions (including submission to jurisdiction or ‘waiver’)
As earlier noted, the oral addresses in respect of jurisdiction also touched upon the issue of waiver or submission to jurisdiction.
Counsel for the first defendant[147] commenced by confirming that it was not in dispute that the Court had jurisdiction to hear and determine the proceeding. He said that the issue was whether the Court could exercise its jurisdiction to hear and determine the proceeding.[148]
[147]Oral submissions in respect of the issue of jurisdiction were made by R Chaile as counsel for the first defendant.
[148]T2-3.
In that regard, counsel submitted that —
… the court should determine that it cannot exercise its jurisdiction because the effect of the s 58 [of the Judiciary Act] is to qualify or to limit the court's exercise of jurisdiction where a State objects to that exercise. Where that occurs, the State submits that the effect of s58 … is to require that the proceeding be heard and determined in the way specified by that provision, namely, in the Supreme Court of Queensland.[149]
[149]T3.
Counsel developed that submission with reference to Breavington, which, as I have noted, concerns s 56 of the Judiciary Act. Counsel described s 56 as analogous to s 58 and also referred to the ‘substantial textual and contextual similarities’ between the provisions.[150]
[150]T4.
Counsel thereafter referred to various provisions and other features, in the course of which he confirmed that, as far as the first defendant was aware, no authority has relevantly considered the effect of s 58 of the Judiciary Act,[151] albeit that, as counsel later confirmed, s 58 has been in the same form since enactment in 1903.[152]
[151]T6.
[152]T16.
Counsel then went to Breavington and highlighted certain passages in the reasons of Mason CJ, the joint reasons of Wilson and Gaudron JJ and the reasons of Deane J.[153] In that connection, counsel submitted that —
… it is a basic interpretative principle that an interpretation of the High Court of a particular provision of an Act is a powerful indicator of the correct interpretation of a provision of the same Act which serves similar purposes, and uses identical or substantially similar language.[154]
[153]T8-10.
[154]T10-11. Cf Federal Commissioner of Taxation v Australian Business Systems Pty Ltd (2015) 257 CLR 544, [27].
Counsel thereafter submitted as follows —
… there are substantial textual and contextual similarities between ss 56 and 58, which engage that interpretative principle and which require the provisions to have a common meaning. In terms of the textual similarities, …, both provisions refer to any person making a claim. Both provisions refer to a claim whether in contract or tort. Both provisions confer permission on a person in the sense that both provisions refer to the person, may, in respect of the claim, bring a suit.
And both provisions refer to the court in which the suits to which they refer may be brought. The only substantive difference is that s 56 deals with claims against the Commonwealth, and s 58 deals with claims against the State. As to the contextual similarities, … . Both provisions appear in part 9 of the Act, which is headed, 'Suits by and against the Commonwealth and the States.' And both provisions are direct of the same purpose by identifying the fora in which certain claims may, and should be, commenced.
And Your Honour will recall the importance of the location of s 56 in the Judiciary Act to the meaning of that provision identified in Breavington by both the Chief Justice … and Justices Wilson and Gaudron … . So … , the point is a simple one. Namely that the two provisions are analogous, they are substantially similar textually and contextually. They should have a common meaning. If they do bear that common meaning …, the consequence is that the court should proceed on the following basis.
First, s 58 does not involve the conferral or investing of jurisdiction. Second, s 58 operates to curtail or limit the exercise of the jurisdiction conferred by s 39(2) of the Judiciary Act in two ways. First, by requiring any right to proceed to be exercised only in the circumstances mentioned in the provision. And second, by imposing as a statutory condition, precedent of the institution of proceedings that the claim should have arisen in that state.
And where there has been an objection to jurisdiction, s 58 operates so as to require any proceeding brought against the state to be brought and determined by one of the courts referred to in s 58. Which in the present circumstances is the Supreme Court of Queensland.[155]
[155]T11-12.
Counsel for the first defendant also submitted that the present case is an appropriate vehicle for the point, which led to submissions directed to the issue of waiver or submission to jurisdiction.
In the course of that aspect of his submissions, counsel for the first defendant asserted that the present point had not been known to his instructors within the 14 day period provided for by r 8.08(4) of the Rules. Accordingly, it was submitted, it would be ‘unfair to proceed on the basis that my client had waived a point of which it was not aware’.[156] Later, counsel said that the point had become known to the first defendant as a consequence of observations made by Watson J in Armstrong v State of New South Wales (‘Armstrong’).[157]
[156]T14
[157]T29: Armstrong (n 45) [6]-[9].
In any event, counsel for the first defendant turned to the relevant contrary submissions of the plaintiff which, he said, should not be accepted because —
(a) the modern authorities of the High Court confirm that the right to proceed is conferred by the provisions that confer jurisdiction;[158]
[158]T19. Cf Mewett (n 49); BATA (n 50); Hill article (n 52).
(b) consequently, no right to proceed can derive from ss 56 and 58 of the Judiciary Act;[159]
[159]T21.
(c) the present right to proceed ‘derives only from s 39 [of the Judiciary Act]’;[160]
(d) in the present instance, s 56 and, by analogy, s 58, are ‘intended to … curtail or restrict the exercise of … jurisdiction where there’s been a non-submission to its exercise;[161] and
(e) Breavington must be followed.[162]
[160]Ibid.
[161]T24. Cf Mewett (n 49).
[162]T25-7: Farah Constructions (n 48); Hill v Zuda (n 48) [25]; Price (n 48) [17]-[18].
The relevant written submissions of the plaintiff addressed the present issue relatively briefly. In particular, it was submitted that —
… both the jurisdiction and right to proceed [derive] from ss 75(iv) and 77(iii) of the Constitution, together with s 39(2) of the Judiciary Act.[163]
[163]UCB 1123 [10].
A footnote to that proposition states that Mewett and BATA comprise ‘the present state of the law, notwithstanding the obiter remarks in Breavington’.[164]
[164]UCB 1123 (footnote 4) (emphasis added).
In oral address, senior counsel for the plaintiff[165] developed a refined or further submission to the effect that the fact that Breavington had involved the Commonwealth and not a State gave rise to a ‘profound difference’ in the relevant circumstances.[166]
[165]Oral submissions in respect of the issue of jurisdiction were made by LT Brown SC as senior counsel for the plaintiff.
[166]T30.
Before further developing that submission, senior counsel submitted that the first defendant’s new point had been raised ‘too late’ and that it should be taken to have ‘waived its right to object on this ground’.[167]
[167]T30.
Senior counsel thereafter developed the refined or further submission, which he introduced in the following summary terms —
… we say there is a profound difference because of the identity of the bodies politic. One of the evident purposes of ss 56 and 58, which I’ll come to, which is a manifestation of the Commonwealth’s power in s 78 of the Constitution, to provide rights to proceed. In [s] 56 against the Commonwealth and in [s] 58 against the State. In other words, it’s an abrogation of what would’ve been called Crown immunity for the purposes of those provisions.[168]
[168]T31.
Senior counsel then referred to aspects of BATA, Mewett and Breavington and placed emphasis upon ss 8(1) and 9(1) of the Crown Proceedings Act, which, he submitted, presently operated to remove Crown immunity.[169]
[169]T31-46.
In respect of Breavington, in particular, as well as the provisions of the Crown Proceedings Act, senior counsel submitted as follows —
… in [the] case of [s] 58, the waiver by Queensland [of Crown immunity] can be effected through a number of ways, including by subjecting itself to jurisdiction or through an exercise of its own parliamentary sovereignty and removing its immunity from suit, which is what it’s done. …
And so we say, of course, what the High Court has done in Breavington is demonstrate that there is a particular avenue that you can pass through to sue the Commonwealth because s 56 is a statutory expression of the waiver of Crown immunity. And because it is the Commonwealth Parliament doing it, it is confined in its operation because it was an exercise of statutory power by the Commonwealth. Of course, in the case of Queensland, it’s done [it] itself [in] a different way through the Queensland Crown Proceedings Act.[170]
[170]T43. See also T46.
In reply, counsel for the first defendant submitted that —
(a) the first defendant’s conditional appearance, combined with filing the relevant summons within 14 days, had been ‘sufficient to preclude any submission to this jurisdiction’;[171]
[171]T46-7. In that connection, counsel referred to Robinson (n 55) 75; United Group (No 4) (n 55) [48].
(b) in respect of the plaintiff’s refined or further submission —
The abolition of Crown immunity achieved by the Crown Proceedings Act … is an abolition of Crown immunity in respect of claims falling within state jurisdiction. In our submission, it’s not an abolition of Crown immunity for claims against the State which arise in federal jurisdiction, because the abolition of immunity in respect of those claims is achieved by the operation of different provisions, namely s 39(2) [of the Judiciary Act] and not the Crown Proceedings Act.
And in this respect, … if the submission were that the Crown Proceedings Act was sufficient to confer jurisdiction on this Court, which had been restricted by s 58, there would be a real issue as to whether or not the Crown Proceedings Act could have that effect, or whether it would be invalid by reason of inconsistency.[172]
(c) the purpose of s 58 of the Judiciary Act is ‘to curtail or restrict this Court in [the] exercise of jurisdiction when a State objects to it’.[173]
DCross-vesting: ‘the interests of justice’
[172]T48.
[173]T51.
I have referred to the relevant statutory provision, the applicable authorities and principles, the evidence and the respective contentions of the parties.
Place of the alleged torts
The starting point is the place of the alleged torts, which is Queensland. That factor is significant, and favours trial in Queensland.
Location of the parties
Notwithstanding the above —
(a) the plaintiff resides in Victoria;[174]
[174]UCB 292 [19].
(b) the first defendant is the State of Queensland;
(c) the registered office of the second defendant is in Victoria;[175]
(d) the third defendant is located in Bundaberg, Queensland;[176] and
(e) the fourth defendant is located in Rockhampton, Queensland.[177]
[175]UCB 708 [14].
[176]UCB 13 [29].
[177]Ibid.
It will be apparent that there is no coincidence in the location of the alleged torts and the various parties.[178] I consider the issue of the simple location of the parties to be essentially neutral.
[178]Cf Vernon (n 45) [12].
In any event, it was essentially common ground that the Court should consider all of the connecting factors identified in argument.
Applicable law
As I have noted, it was common ground that the applicable substantive law will be that of Queensland.
In that connection, the solicitor for the fourth defendant referred to various provisions of the Limitation of Actions Act 1974 (Qld), Civil Liability Act 2003 (Qld) and Civil Proceedings Act 2011 (Qld). He also referred to the relevance of ‘Queensland authorities’ and sought to emphasise the jurisdiction and expertise of the Supreme Court of Queensland.[179]
[179]UCB 722-3 [49]-[51].
In argument, senior counsel for the first defendant also referred to the Law Reform Act 1995 (Qld) and some Queensland authorities. As I have noted, it was essentially submitted that while it is possible for the Supreme Court of Victoria to deal with the various Queensland laws and authorities, it is preferable that the task be undertaken by the Supreme Court of Queensland.[180]
[180]T60-5.
I accept that the familiarity of the Supreme Court of Queensland with the laws and authorities identified in argument lends weight to the contention that the trial should be in Queensland.
Location of solicitors and witnesses
As I have noted, the parties broadly emphasised the connections of the various solicitors and likely witnesses with Victoria or Queensland, as the case may be.
Viewed at a general level —
(a) the plaintiff’s solicitors practice primarily in Victoria, her identified supports are located in Victoria and her proposed witnesses are seemingly also located in Victoria;[181]
[181]UCB 289 [1], 293 [21], [23]-[25], 300-4 [46]-[57]. See also UCB 720 [39(e)].
(b) the first defendant’s ‘primary solicitors’ are located in Queensland and the witnesses that it might call at trial are anticipated to be located in Queensland;[182]
[182]UCB 13 [28], 15 [34], [36]-[38].
(c) the second defendant’s solicitor is located in New South Wales (although the solicitor’s ‘legal team’ is primarily based in Melbourne) and certain ‘potential’ witnesses located in Queensland are elderly and in many cases affected by issues such as restricted mobility and lack of mental acuity;[183]
(d) the third defendant’s solicitors are located in Melbourne;[184]
Again, it may strictly be considered to be correct to say that the reasoning to which I have referred comprises ‘seriously considered dicta’ of a majority of the High Court.
However, I cannot accept that such a principle should be taken to intend and require that such dicta must presently be followed. In particular —
(a) if that were so, at the very least, an almost mechanical application of the ultimate conclusion of Mason CJ that s 56 of the Judiciary Act qualifies or restricts what may be done in the exercise of federal jurisdiction by the Courts of the States would be compelled, when an essential part of the reasoning upon which that ultimate conclusion rests has since been ‘dismantled’ by the High Court;
(b) in a broader but nonetheless very real sense, application of the principle would require the Court to leap over or disregard the effect of subsequent High Court authority that has ‘dismantled’ a premise relevant to significant parts of the foundations of the obiter sought to be embraced.
Further, it seems to me to be necessary to give some consideration to the form of the proposition derived by the first defendant from the ‘seriously considered dicta’ in Breavington which, it was said, the Court must presently follow.
In that regard, counsel for the first defendant submitted that s 56 operates to ‘curtail or restrict this court in exercise of jurisdiction when a State objects to it’.[329]
[329]T51 (Emphasis added). See also T24: ‘s 56 is simply intended to recognise a jurisdiction that is conferred by another provision, and to curtail or restrict the exercise of that jurisdiction where there’s been a non-submission to its exercise‘.
However, at least inferentially, ss 77 and 78 of the Constitution identify two significant integers to a present exercise of federal jurisdiction, namely the investing of jurisdiction and the conferring of a right to proceed.
In that context, the first defendant accepted that since Mewett and BATA it should be taken to be ‘well established’ that s 39(2) of the Judiciary Act invests the presently relevant jurisdiction as well as conferring ‘any necessary right to proceed’.[330]
[330]T18.
In the circumstances, it seems to me to be at least doubtful that a State could have any proper basis to ‘object’ to any such exercise of jurisdiction by this Court.
For completeness, and unsurprisingly, the circumstances in the cases relied upon as stating the principle to which I have earlier referred were significantly different to the present.[331] To say the least, reasoning in which such a principle is stated is very much a product of its circumstances. It follows that care must be taken not to disconnect the words said to comprise the principle from context and thereafter construe and apply them as if they were the equivalent of a provision in a statute.[332]
[331]Farah (n 48); Hill v Zuda (n 48); Price (n 48).
[332]Cf Re Queensland Electricity Commission and Others; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1, 6.
For much the same reasons, I also cannot accept that the interpretation of s 56 of the Judiciary Act by each of Mason CJ, Wilson and Gaudron JJ, and Deane J in Breavington should presently be taken to stand as a powerful indicator of the correct interpretation of s 58.
That brings me to the final, and I tend to think important, part of the argument of the first defendant, that s 58 of the Judiciary Act does not confer a right to proceed and that it must be given an effect beyond being duplicative of s 39(2).
In that regard —
(a) as I have earlier noted, a majority in Breavington might be thought to have characterised s 56 of the Judiciary Act as conferring a right to proceed, at least in part;
(b) it may be acknowledged that the majority in BATA determined that s 39(2) of the Judiciary Act invests jurisdiction and confers any necessary right to proceed;
(c) however, it is not expressly stated by the majority in BATA that ss 56 and 58 do not confer more limited rights to proceed;
(d) indeed, the reasoning of the majority in BATA does not refer to ss 56 and 58 (or Breavington) at all.
It is, of course, discomforting to consider that the contemporary understanding of s 39(2) of the Judiciary Act could stand to leave ss 56 and 58 wholly or largely without any present application.[333]
[333]In that general connection, the authorities relied upon by the first defendant included Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
In part, that discomfort propelled the contention of the first defendant that such sections should be taken to carry the function identified in argument. However, I have endeavoured to explain why it is that much of the foundation for at least some of those conclusions appear to have since been very severely shaken, if not demolished, by Mewett and BATA.
In that context —
(a) in argument I asked counsel for the first defendant whether the ‘duplication argument’ had been considered in Mewett and BATA and was informed that it had (and that counsel thought that it had not been accepted);[334] and
(b) the detailed and learned analysis in the Hill article ultimately summarises the position relevantly as follows: ‘ss 56 and 58 may merely duplicate the right to proceed that is already created by the conferral of federal jurisdiction on a court (although there is an argument to the contrary)’ and, in that event, ‘ss 56 and 58 would not prevent a plaintiff from bringing a contract or tort claim against … a [S]tate’.[335]
[334]T23-4.
[335]Hill article (n 52) 745.
In circumstances in which the duplication argument is said to have been raised and considered in connection with Mewett and BATA, it is less obviously the case that I should strain to avoid the discomfort naturally associated with it. Nor do I consider that I am reasonably able to do any better than Mr Hill (or, really, should presently attempt to do so).
To my mind, until the present question comes to be determined more authoritatively, I can only conclude that it is most likely that Mewett and BATA have rendered ss 56 and 58 of the Judiciary Act presently inapplicable.
It follows, in my view, that —
(a) section 58 does not have the effect contended for by the first defendant; and
(b) the contention that the Court should presently decline to exercise its jurisdiction must be rejected.
In the circumstances, it is unnecessary to determine the plaintiff’s contentions concerning ss 8 and 9 of the Crown Proceedings Act.
F Submission to jurisdiction (or ‘waiver’)
The present issue was argued among the submissions directed to the wider issue of jurisdiction. That said, it is a discrete issue that arises if my conclusions concerning the wider issue should be wrong.
I have earlier referred to the applicable Court rule, several of the relevant events and the substance of the relevant submissions of the first defendant and the plaintiff.
As earlier noted, the issue of submission to jurisdiction was determinative in Breavington. In that instance, an unconditional appearance had been filed, Telecom had participated in the substantive proceeding and also, seemingly, remained relevantly silent in the High Court.
In that context, as noted, all members of the High Court were of the view that such a party could submit to the jurisdiction,[336] although Wilson and Gaudron JJ expressed a perhaps narrower view based in waiver of a ‘statutory condition precedent’.[337] That said, all seven members of the Court determined that, in that instance, Telecom had either submitted to jurisdiction or otherwise waived its right to object.[338]
[336]Breavington (n 18) 69 (Mason CJ), 118 (Brennan J), 140 (Deane J), 153 (Dawson J), 169 (Toohey J).
[337]Ibid 105-6.
[338]Ibid 69 (Mason CJ), 106 (Wilson and Gaudron JJ), 118 (Brennan J), 139 (Deane J), 153 (Dawson J), 169 (Toohey J).
The first defendant submits that the present circumstances are different to those in Breavington and also emphasises the view expressed by Wilson and Gaudron JJ.
The short answer to the above is that —
(a) the notion of submission to jurisdiction has a lengthy history and is well understood;
(b) every other member of the High Court in Breavington — that is, a majority — simply identified submission to jurisdiction as relevantly sufficient; and
(c) unsurprisingly, no member of the Court indicated that the circumstances there under consideration were the only circumstances in which a party should be taken to have waived or otherwise submitted to jurisdiction.
The presently relevant principle is expressed in the authorities referred to and relied upon by the first defendant.[339]
[339]See Robinson (n 55) 75; United Group Resources (n 55) [48].
In particular, in Lindgran v Lindgran (‘Lindgran’),[340] Smith J stated —
Although it is not easy to reconcile all the relevant decisions, the weight of authority appears to me to support the view that, in order to constitute a waiver in a case such as this, there must at least be words or conduct of such a nature that an inference can properly be drawn therefrom that the party alleged to have waived the objection does not intend to rely upon it: … .[341]
[340][1956] VLR 215 (‘Lindgran’).
[341]Ibid 220.
As is evident in the decision of Moore J in Robinson v Kuwait Liaison Office, whether or not the necessary inference may be drawn will depend upon the circumstances. In particular, the circumstances of that case indicate that merely prosecuting an objection to jurisdiction, or prosecuting some other minor step anterior to or in combination with such an objection, will not necessarily constitute submission to jurisdiction. Appropriately, courts will look to the substance of the situation.[342]
[342]Robinson (n 55) 75-7. See also, eg, Harris v Taylor [1915] 2 KB 580.
In that connection, Moore J extracted a summary of principles that includes reference to Rein v Stein (‘Rein’),[343] which is one of the authorities cited by Smith J in support of the above statement of principle.
[343](1892) 66 LT 469 (‘Rein’).
In Rein, Cave LJ stated —
… in order to establish a waiver, you must show that the party alleged to have waived his objection has taken some step which is only necessary or only useful if the objection has been actually waived, or if the objection has never been entertained at all. If, for instance, after leave to issue a writ an ordinary appearance is entered, that is a matter which indicates that the defendant either never has entertained the notion or, if he did entertain it, he abandoned it. Such a step would be unnecessary and useless if the intention of insisting on his objection still held good.[344]
[344]Rein (n 343) 471.
In short, the necessary inference might be drawn if a party acts specifically to disclaim reliance upon an identified basis for objection. Essentially, that seems to have occurred in Breavington. It certainly occurred in HWC v The Corporation of the Synod of the Diocese of Brisbane & Ors and Armstrong.[345]
[345]HWC (n 320) [28]; Armstrong (n 45) [6]-[9].
However, circumstances of that kind will not be the only circumstances sufficient to support the drawing of the necessary inference. In particular, there will be cases in which it may be inferred from the conduct of the relevant party that no objection to jurisdiction has ever been entertained or, if it was, that any objection has since been abandoned.
That brings me to the presently relevant rule, which I have earlier extracted but should repeat here for convenience —
8.08 Conditional appearance
(1) A defendant may file a conditional appearance.
(2) A notice of conditional appearance shall be in Form 8B.
(3) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless, on application by the defendant, the Court otherwise orders.
(4) Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed.
As will be apparent, even if a conditional appearance is filed, it nonetheless has effect as an unconditional appearance unless, within 14 days, the defendant makes application by summons and the Court subsequently otherwise orders.
It seems to me that the time limit of 14 days is significant, in that it is clearly directed to facilitating the early identification of any claimed issue of jurisdiction, service, or other such defect of process.
I also note that the structure of r 8.08 is that the Court, ultimately, comes to consider whether it should ‘otherwise’ order that a conditional appearance not be treated for all purposes as unconditional. Plainly that form of words (‘the Court otherwise orders’) is apt to repose a discretion in the Court.
I should not be thought to be limiting the circumstances in which that discretion might be thought appropriate to be exercised (or not); however, it seems to me to be consistent with the history of such objections and the principles to which I have earlier referred that the Court would not ‘otherwise order’ if the defendant has acted in a manner that manifests no continuing objection to jurisdiction or, put it another way, that any early notion that such an objection was being taken has since been abandoned.
That brings me to the presently relevant circumstances, some of which I outlined at the outset.
The first defendant filed its notice of conditional appearance on 13 November 2024. The notice is in Form 8B, which is the form referred to in r 8.08(2).[346]
[346]UCB 923.
The notice was served under cover of a solicitor’s letter, the relevant parts of which I have earlier extracted.[347] In argument, counsel for the first defendant responsibly acknowledged that the letter did not advance any objection of a jurisdictional kind.[348]
[347]UCB 40.
[348]T13-5, 28.
That said, the first of the bases identified in the letter was the intention of the first defendant to apply to transfer the proceeding to the Supreme Court of Queensland pursuant to s 5(2) of the Cross-vesting Act.
I have earlier referred to the reasons of Gleeson CJ, McHugh and Heydon JJ in Schultz. The most relied upon passage in those reasons includes the following sentence —
An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked.[349]
[349]Schultz (n 31) [14]. See also [72] (Gummow J), [168] (Kirby J), [177] (Hayne J).
It follows that not only did the letter not identify any question of a jurisdictional kind, the first basis there identified, in fact, stood contrary to any suggestion that the jurisdiction of the Court was not regularly invoked.
In any event —
(a) on 22 November 2024, the first defendant filed a defence that also did not take any objection of a jurisdictional kind;[350]
[350]UCB 900-5.
(b) on 26 November 2024, the first defendant filed a summons which, consistently with the letter that preceded it, sought relief, relevantly, as follows —
1.An order pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) that the proceeding be transferred from the Supreme Court of Victoria to the Supreme Court of Queensland.
2.In the alternative to order 1, an order pursuant to rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), that this proceeding be temporarily stayed pending the outcome of the Plaintiff’s proceeding issued under the Personal Injuries Proceedings Act 2002 (Qld).[351]
(c) on the same day, the solicitor for the first defendant filed an affidavit which referred, relevantly, to only the filing of the notice of conditional appearance as well as the letter.[352]
[351]UCB 1-3.
[352]UCB 10-11 [19]-[20].
It follows from the above that the first defendant’s summons was filed within the time provided by r 8.08(4). However, neither of the points identified in the summons were capable of supporting the notice of conditional appearance filed. Indeed, as I have indicated, the first point proceeded upon the basis that the jurisdiction of the Court had been regularly invoked and, upon that hypothesis, it could not otherwise have been ordered under r 8.08(3).
Although it is not presently necessary to determine the question, it seems to me that it is at least arguable that the circumstances to which I have referred could amount to the evincing by the first defendant of an intention, at that time, not to advance any objection of a jurisdictional kind.
In any event, timetables of orders seem subsequently to have been made in respect of the first defendant’s summons and the proceeding more generally.
In respect of the latter, in particular, it is apparent that commencing in February 2025, on behalf of all defendants, the first defendant was seeking to have the plaintiff attend for psychiatric examination. In that email correspondence it was noted that the first defendant’s ‘transfer summons’ had not yet been determined.[353]
[353]UCB 177.
Shortly thereafter, on 25 February 2025, the first defendant filed its written submissions in respect of the summons.[354] As I have earlier noted —
[354]UCB 813-28.
(a) the submissions did not mention the notice of conditional appearance or advance any argument of a jurisdictional kind;
(b) argument was advanced only in respect of a transfer of the proceeding to the Supreme Court of Queensland pursuant to s 5(2) of the Cross-vesting Act; and
(c) paragraph 2 of the summons — directed to PIPA — was implicitly abandoned.[355]
[355]UCB 828 [56]: ‘… the first defendant respectfully submits that the orders sought in paragraphs 1, 3 and 4 of the Summons should be made’.
Three days later, on 28 February 2025, the parties appeared before Baker JR. The Orders record that senior counsel appeared on behalf of the first defendant . Among other things, it is recorded in ‘other matters’ that —
The parties otherwise agreed on a revised timetable for the exchange of material for the first defendant’s cross-vesting application. …
In that connection, Order 3, in particular, states as follows —
The first, second and third defendants are to file and serve any written submissions concerning the first defendant’s cross vesting application pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) (the ‘cross-vesting application’) by 4 March 2025.
As I have earlier noted, the fourth defendant and plaintiff subsequently (and, in the circumstances, unsurprisingly) filed written submissions directed only to the cross-vesting application.
I have earlier referred to Armstrong, in which, on 21 March 2025, Watson J requested submissions in respect of s 58 of the Judiciary Act, and which submissions were subsequently filed on 15 April 2025. I note that two of the counsel appearing for the defendant in Armstrong also appeared for the first defendant in the present application.
On the following day, 16 April 2025, the first defendant filed reply submissions in the present proceeding that, for the first time, advanced argument in respect of s 58 of the Judiciary Act.[356] At that time, the first defendant did not propose any amended summons or seek leave to amend the relief sought by summons dated 26 November 2024.
[356]UCB 872-85.
As I have earlier noted, much solicitor’s correspondence ensued and the application came before the Court on 30 May 2025. On that occasion, among other things, an order was made directing the first defendant to file an amended summons seeking relief by reference to s 58 of the Judiciary Act (which summons was later filed).
For completeness, I should say that, at the hearing on 28 July 2025, when I asked about the circumstances to which I have referred, counsel for the first defendant explained that —
(a) the point concerning s 58 of the Judiciary Act was ‘not known … at the point in time at which the transfer application had been raised’;[357]
(b) the point had been taken once it was identified;[358] and
(c) the point had become ‘known to the State of Queensland’ as a consequence of the request made by Watson J in Armstrong.[359]
[357]T14.
[358]T28.
[359]T29.
In that general connection, counsel submitted that —
… it would be unfair to proceed on the basis that my client had waived a point of which it was not aware. But having been made aware of the point, my client moved very quickly to raise it in this Court.[360]
[360]T14.
For reasons which I have earlier sought to explain, I do not consider the first defendant’s ignorance of the point concerning s 58 of the Judiciary Act until it was raised by Watson J to be alone dispositive of the present issue. In the circumstances of the present case, the issue is whether, by its conduct prior to that time, the first defendant had abandoned any claimed objection to jurisdiction and thereby already submitted to the jurisdiction of the Court.
In that regard, the present circumstances are unlike those in the cases to which I was taken but also, in some respects, striking, in the sense that it involves the actions and plainly stated ignorance of a State party.
In any event, it seems to me to be of present significance that —
(a) at the time at which the notice of conditional appearance was filed, the purported justifications for it were no justification at all;
(b) nor were the points taken in the subsequent summons capable of moving the Court to order ‘otherwise’ in respect of the notice filed;
(c) some months later, the first defendant’s written submissions in respect of the summons narrowed the relevant relief sought to ‘transfer of proceedings’ only;
(d) shortly thereafter, the first defendant appeared before the Court and the consensual position seems to have been that it was only a ‘cross-vesting application’;
(e) accordingly, by late February 2025, the hypothesis in the only relief being pursued by the first defendant was that the jurisdiction of the Court had been regularly invoked; and
(f) consistently with the apparent position of the first defendant, the fourth defendant and plaintiff subsequently filed written submissions directed only to the ‘transfer’ or ‘cross-vesting’ application.
In those circumstances, it seems to me that by late February 2025, at the latest, the conduct of the first defendant evinced its intention to abandon any contention that the jurisdiction of the Court had not regularly been invoked. Consequently, by that point at the latest, it had submitted to the jurisdiction of the Court.
I should add that while, as I have noted, the first defendant sought to rely upon its ignorance of the point concerning s 58 of the Judiciary Act in the manner described, that fact would seem to me to reinforce the conclusions identified.
In particular, if, on 25 or 28 February 2025, the legal representatives of the first defendant had been asked whether there was any suggestion being maintained to the effect that the jurisdiction of the Court had not regularly been invoked, the response could only have been that any such objection was abandoned. After all, at that point, there was no known basis upon which it could have been said that any such objection was subsisting.
In any event, nothing in the material to which I have referred suggests that any such clarification was sought and, in my view, none was necessary. At that point, it was plain to the Court, and the parties, that the first defendant did not maintain any contention that the jurisdiction of the Court had not been regularly invoked.
For completeness, I should briefly mention the first defendant’s brief submissions to the effect that its notice of conditional appearance should be taken to have maintained an objection to jurisdiction ‘in a broad sense’ and that the subsequent amendment of the first defendant’s summons had ‘cured’ any non-compliance with the Rules.
The short answer to the above is that —
(a) the authorities on which the first defendant relied in support of its contention that objection had been taken in a ‘broad sense’ do not support any conclusion that the present notice of conditional appearance and associated summons were apt to take any point that might have been capable of supporting an objection to the jurisdiction of the Court;
(b) in any event, neither submission displaces the fact that, by late February 2025, the first defendant, by its conduct, had abandoned any objection to the Court’s jurisdiction; and
(c) in the circumstances, the later raising of the point concerning s 58 of the Judiciary Act could not displace the first defendant’s earlier submission to the Court’s jurisdiction.
It follows that even if my conclusions concerning s 58 of the Judiciary Act are wrong, the first defendant has nonetheless submitted to the jurisdiction of the Court.
G Conclusion
In the circumstances —
(a) the interests of justice do not require that the proceeding be transferred to the Supreme Court of Queensland;
(b) the contention that this Court should decline to exercise its jurisdiction must be rejected; and
(c) in any event, the first defendant has submitted to the jurisdiction of the Court.
It follows that the first defendant’s amended summons must be dismissed.
I will hear the parties concerning the form of orders and issues of costs, including costs reserved in respect of the hearing on 30 May 2025.
| SCHEDULE OF PARTIES | |
| KARLIE STATHAM (A PSEUDONYM) | Plaintiff |
| and | |
| STATE OF QUEENSLAND | First Defendant |
| MERCY SUPPORT LIMITED (ABN 28 629 640 464) | Second Defendant |
| PEIRSON MEMORIAL TRUST | Third Defendant |
| THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF ROCKHAMPTON (ABN 50 979 741 889) | Fourth Defendant |
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