Stephen James Mitchell v Rodney Spillsbury No. SCGRG 94/425 Judgment No. 4795 Number of Pages 6 Jurisdiction, Practice and Procedure Cross-vesting

[1994] SASC 4795

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Jurisdiction, practice and procedure - cross-vesting - Action brought in the Supreme Court of South Australia by a plaintiff injured in a road accident which occurred in Tasmania in 1986 - plaintiff and defendant at all times residents of Tasmania - the vehicle in which the plaintiff was a passenger when the accident occurred insured in Tasmania - the plaintiff's medical treatment has taken place entirely in Tasmania - there are no witnesses either as to liability or as to the quantum of the claim who are likely to be called other than witnesses resident in that State - no factual connection whatsoever in any respect with the State of South Australia - the action statute barred in Tasmania - in the proceedings brought in South Australia the plaintiff sought an order under s.48 of the Limitation of Actions Act (SA) extending the time for the institution of the proceedings - if the action was to be transferred to Tasmania the defendant intended to plead the relevant limitation of action applicable in Tasmania with the result that the action was unlikely to be able to proceed further - the defendant's application pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 to transfer the proceedings to the Supreme Court of Tasmania granted - discussion of the relevant principles. Jurisdiction of Courts (Cross-Vesting) Act 1987s5. Challenor v Douglas (1983) 2 NSWLR 405; Pegasus Leasing Ltd v TIECO International (Aust) Pty Ltd and Ors (1993) 171 LSJS 292; Bankinvest AG v Seabrook (1988) 2 NSWLR 711; Jackson v John Fairfax and Sons Ltd (1988) 96 FLR
145 and Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531, considered.

HRNG ADELAIDE #DATE 7:10:1994

Counsel for plaintiff:     Mr A Martin

Solicitors for plaintiff:    M J Lutt

Counsel for defendant:     Mr S Ward

Solicitors for defendant:    Piper Alderman

ORDER
Application refused.

JUDGE1 PERRY J The plaintiff instituted proceedings in this Court by the issue of a summons on 24 March 1994.

2. In the statement of claim attached to the summons the plaintiff seeks damages against the defendant arising out of a road accident which occurred on 18 May 1986 when a vehicle driven by the defendant, in which it is alleged the plaintiff was a passenger, left the roadway and collided with a tree. It is alleged that the plaintiff, who was then aged 29 years, suffered severe injuries to the head and other injuries to the body.

3. The accident occurred on the Esk Highway near the Conora turnoff in the State of Tasmania.

4. In his statement of claim the plaintiff seeks an extension of time for the institution of the proceedings. Although the basis of the extension is not identified in the statement of claim, it must be taken to be the case that the extension is sought under s.48 of the Limitation of Actions Act.

5. The defendant, who resides in Tasmania, was served in that State with the summons and statement of claim. He filed an appearance on 14 July 1994. No defence has yet been filed.

6. On 29 August 1994 the defendant issued an application seeking an order that pursuant to s.5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 ("the Act") the action be transferred to the Supreme Court of Tasmania. That application was supported by two affidavits.

7. The first, an affidavit of Ian Nathaniel, a solicitor in the employ of the defendant solicitors, deposes to the fact that, on his instructions, at the time of the accident both the plaintiff and the defendant resided in Tasmania and have continued to reside there ever since. He states further that liability is in dispute and that the action will be defended on grounds which will include:
    "volenti non fit injuria, failure by the plaintiff to wear a
    seat belt which contributed to his injury; and travelling
    with the defendant in the knowledge of his insobriety and
    subsequent incapacity to drive the subject motor vehicle".

8. He goes on to depose to the fact that he has been instructed that all witnesses relevant to the issue of liability reside in Tasmania, and that "... all documentation relating to the investigation of the accident", and evidence of the blood alcohol levels of the respective parties, and the ownership of the vehicle is all located in that State.

9. He deposes to the fact that on his instructions, no known witnesses reside in or have any connection with the State of South Australia, and "nor are there any documents relevant to liability in South Australia".

10. He states that the plaintiff's medical treatment since the accident has been wholly confined to the State of Tasmania and that the treating medical advisers have resided and continue to reside in that State. He further states that the plaintiff's employment history both before and after the accident is confined to that State.

11. To the extent that the plaintiff alleges that he has received the voluntary assistance of relatives and friends and seeks damages with respect to that, his instructions are that all such friends and relatives at all material times have resided in Tasmania. Furthermore, the motor vehicle in which the plaintiff was travelling at the time of the accident was registered and insured in that State.

12. His affidavit then goes on to deal with a matter of law, namely, that the plaintiff's claim not having been instituted in the State of Tasmania within three years of the date of the accident, it is statute barred, although apparently under the relevant statutory provisions in Tasmania and in particular the Limitation Act 1974 (Tasmania), an extension of time for institution of proceedings might have been sought up to six years from the date upon which the cause of action arose. After six years no such extension may be obtained.

13. In his affidavit Mr Nathaniel asserts that the plaintiff has made no application within six years of the accident for an extension of time for the institution of the proceedings, and that accordingly there is no basis upon which such extension could now be granted in that State.

14. The other affidavit filed by the defendant in support of the application is that of Ashton John Denehey, a Tasmanian solicitor. He identifies his client as the compulsory third party motor vehicle accident insurer in the State of Tasmania, namely, the Motor Accidents Insurance Board of Tasmania. In his affidavit he confirms that the vehicle in question was the subject of a third party policy of insurance issued in Tasmania at the relevant time. He confirms the other matters insofar as they are within his knowledge and belief referred to in the affidavit of Mr Nathaniel.

15. No answering affidavit has been filed by the plaintiff and there has been no application for an opportunity for him to do so. On the contrary, the application has proceeded on the basis of a concession by counsel for the plaintiff, Mr Martin, that the plaintiff does not challenge the facts and matters set out in the affidavits to which I have referred. It follows, as he conceded, that there is no connection in any way between the plaintiff and any fact or matter to do with his alleged cause of action or the proof of it, and the State of South Australia.

16. I should say that I also infer from the affidavits filed by the defendant that if the plaintiff instituted proceedings in the State of Tasmania rather than in the State of South Australia, the defendant would plead by way of defence that the action was statute barred in that State.

17. I accept the argument of Mr Martin that the question whether or not the proceedings should be transferred to the State of Tasmania falls to be determined by an exercise of the discretion which finds expression in s.5(2)(b)(iii) of the Act. I agree that sub-s.5(2)(b)(ii) is not of application as this could not be said to be a case in which the proceedings, had it not been for the Act, would have been incapable of being instituted in the Supreme Court of South Australia. Since the passing of Rule 18.03 no nexus needs to be demonstrated with the State of South Australia in order for valid service of proceedings to be effected in any other part of Australia pursuant to that rule. Jurisdiction runs with service.

18. It follows then that the fate of the application is to be determined by a reference to the question whether it is "otherwise in the interests of justice" that these proceedings be determined by the Supreme Court of Tasmania rather than by this Court (s.5(2)(b)(iii)).

19. The case raises the question whether or not it is relevant to the exercise of the discretion, and in particular whether it is a matter to be taken into account in determining the interests of justice that the plaintiff would, on the face of it, be unable to pursue his claim in the jurisdiction to which the defendant has sought that the proceedings be transferred.

20. In my opinion, that is a factor which must be considered and which must be taken into account in the exercise of the discretion. It is an important consideration and it is right that in some cases much weight should be placed upon it: see, for example, Challenor v Douglas (1983) 2 NSWLR 405.

21. However, neither counsel has been able to refer to any case either concerning an application for a stay on forum non-conveniens grounds, or concerning an application for a transfer of the proceedings to another Court pursuant to the Act in which there has been a complete absence of any relevant connection with the forum in which the proceedings have been instituted.

22. For example, in Challenor v Douglas (supra) the plaintiff resided in New South Wales, and it was suggested that part at least of the damage which he had suffered had been suffered in that State. One way of characterising the present proceedings is that they are nothing more than an exercise in forum shopping. That view of the proceedings is not determinative of the present application, but it is something to which regard must be had.

23. I accept and adopt the observations of my brother Debelle J in Pegasus Leasing Ltd v TIECO International (Aust) Pty Ltd and Ors (1993) 171 LSJS 292 at 297 when he said:
    "It is well settled that the legislative scheme is not
    intended to be used as a means of forum shopping. Litigation
    should proceed in the Court which having regard to the broad
    interests of justice is the most appropriate: Bankinvest AG
v Seabrook (1988) 2 NSWLR 711, 725; Jackson v John Fairfax
and Sons Ltd (1988) 96 FLR 145; Mullins Investments Pty Ltd
v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531".

24. I must say that the element in the case which has caused me most concern is the fact that if the present application is granted, it is almost certain that the plaintiff will be unable to pursue his claim against the defendant. But it seems to me that, as I have said, that consideration cannot be regarded as determinative of the application.

25. I have to have regard to the factors which are localised in Tasmania which bear on the question where it is that in the interests of justice the action might best proceed.

26. It appears to me that even allowing full weight for the fact that the plaintiff will be unable to proceed with his action in Tasmania, the balance of factors which operate towards the conclusion that it is in the interests of justice that the action proceed in that State is such that this application should be granted.

27. In reaching that view I have allowed for all of the matters put to me in his very helpful argument by Mr Martin of counsel for the plaintiff. Amongst those arguments he advanced the proposition that if the action was allowed to remain in court, the plaintiff must nonetheless show that it is just to extend the time within which the proceedings may be instituted. That is certainly a matter to be taken into account, and I have done so.

28. Mr Martin has put everything which could reasonably be put in defence of the application, but I remain of the view which I have indicated.

29. There will be an order in terms of paragraph 1 of the application, that is, that the action be transferred to the Supreme Court of Tasmania. The plaintiff will pay the costs of the defendant of and incidental to the application and order. Mr Martin applies for a stay, but in my opinion there are no circumstances which would justify that.

30. The application is refused.