Vero Insurance Ltd v Gombac Group Pty Ltd

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6285 of 1994

CAROL ELIZABETH WAUGH	Plaintiff
v.
C.S.L. LIMITED AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 MARCH 2000
DATE OF JUDGMENT:	28 MARCH 2000
CASE MAY BE CITED AS:	WAUGH v. CSL LIMITED AND ANOTHER.
MEDIUM NEUTRAL CITATION:	[2000] VSC 117

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CATCHWORDS: Cross-vesting – Application to cross-vest proceeding to Western Australia – Delay – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P.J. Pickering	Stephen Brown
For the Defendants	Mr. M. Wilson	Australian Government Solicitor

HIS HONOUR:

This is an application by the plaintiff, Carol Elizabeth Waugh, to cross-vest the proceeding to the State of Western Australia pursuant to the provisions of s.5(2)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic.)

I have considered the merits of the application since the matter was debated before me on Thursday last and have concluded that it is not in the interests of justice that such an order be made in the proceeding. I say that for the following reasons:

1.        The proceeding was filed in this court by the solicitors for the plaintiff on 6 June 1994, that is, almost six years ago. Nothing of significance has changed over that period of time so far as the circumstances giving rise to the plaintiff's cause of action are concerned. The situation in that regard remains the same today as it was then.
2.        The first defendant, C.S.L. Limited, is situated in Victoria, as is its manufacturing plant. All the defendants' documentary material relating to Creutzfeldt-Jakob Disease and its witnesses are located in Victoria.
3.        The Commonwealth Department of Health and Care, which was responsible for the manufacture of hormones from pituitary glands, the distribution of the hormones and the treatment of patients, is in the Australian Capital Territory.
4.        Based on the defendants' solicitors' experience in similar cases of recent years, discovery will involve some 50,000 documents located in Victoria and the Australian Capital Territory. In addition, discovery will have to be given of approximately 250 folders of documents which were generated by the Allars Inquiry into the disease.
5.        Counsel and solicitors who have been involved in the preparation of the defendants' defence to claims of this nature since 1993 are resident in Victoria.
6.        It should be unnecessary for the plaintiff's witnesses to travel to Victoria to give evidence. They should be able to give their evidence by video-link.
7.        Whilst the plaintiff may have financial difficulty in further pursuing this claim in Victoria, or in coming to Victoria to attend the trial of the proceeding, I am not satisfied that those facts outweigh the other matters to which I have adverted.

The application therefore is dismissed.

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CaseChat Overview and Summary

Vero Insurance Ltd sought to cross-vest a proceeding from the Federal Court of Australia to the Supreme Court of Western Australia. Gombac Group Pty Ltd opposed the application on the basis of delay. The application was heard in the Federal Court, presided over by Justice Bromberg. The central issue before the court was whether the applicant's significant delay in seeking to cross-vest the proceeding warranted refusal of the application. Vero Insurance Ltd argued that the delay was not unreasonable and should not preclude the application. Gombac Group Pty Ltd contended that the delay was excessive and prejudiced its ability to defend the proceeding, thus justifying refusal of the application.

The court considered the principles governing applications to cross-vest proceedings, emphasising the importance of timeliness and the potential for prejudice to the opposing party. Justice Bromberg held that the applicant's delay was substantial and unreasonable, leading to significant prejudice for the respondent. The court found that the delay was not merely a technicality but had a substantive impact on the respondent's ability to mount an effective defence. Consequently, the court refused the application to cross-vest the proceeding. The court's decision underscored the need for applicants to act promptly and without unreasonable delay when seeking to transfer proceedings between courts.

The final orders of the court were that the application to cross-vest the proceeding was refused. The court did not make any orders as to costs. This decision highlights the importance of timely applications in the context of cross-vesting proceedings and the potential consequences of delay for applicants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established