White v Motor Accident Insurance Board
[2011] VSC 290
•27 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
No. 886 of 2011
| DANIEL WHITE | Plaintiff |
| v | |
| MOTOR ACCIDENTS INSURANCE BOARD | Defendant |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2011 | |
DATE OF JUDGMENT: | 27 June 2011 | |
CASE MAY BE CITED AS: | White v Motor Accident Insurance Board | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 290 | |
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PRACTICE AND PROCEDURE – Application to transfer proceedings to Tasmania – Plaintiff injured in truck accident in Tasmania – Whether interests of justice to transfer – Plaintiff’s medico legal experts and treating doctors practicing in Melbourne – Plaintiff retained no win/no fee solicitor in Melbourne – Damages the substantive issue – Application refused – Section 5 Jurisdiction of Courts (Cross-vesting) Act 1997.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Gorton | Burt & Davies |
| For the Defendant | Dr S L Keeling | Monahan & Rowell |
INTRODUCTION AND SUMMARY
Daniel White was seriously injured in a motor vehicle accident in Tasmania. Mr White was a passenger in a truck driven by Mr Timothy Bennett on the Lyell Highway travelling between Hobart and Queenstown on the west coast of Tasmania. At about midnight on 11 January 2009, the vehicle left the road and rolled down an embankment. Mr Bennett died in the accident. The truck was not found until about 5.30am the next morning. Mr White was trapped and eventually extracted from the truck at about 10.30am. Under Tasmanian statutory law, Mr White is able to take proceedings against the Motor Accidents Insurance Board (MAIB) for Mr Bennett’s liability for the injuries and damages suffered by Mr White. Mr White has done so in the Supreme Court of Victoria alleging negligence on the part of Mr Bennett.[1]
[1]Writ dated 3 February 2011.
MAIB seeks an order under the Jurisdiction of Courts (Cross-Vesting) Act 1987[2] that the proceeding be transferred to the Supreme Court of Tasmania.[3] This court must do so if it appears to the court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of Tasmania.
[2]Section 5(2)(b)(iii).
[3]Summons dated 14 April 2011.
It does not appear to me that it is in the interests of justice that the Supreme Court of Tasmania determine this proceeding. The relevant connecting factors to determining the proceeding in the Supreme Court of Tasmania do not outweigh the connecting factors to determining the proceeding in the Supreme Court of Victoria.
I propose to order that the application be dismissed with costs.
MR WHITE’S INJURIES
Mr White is now 25 years of age. He lives at Richmond some 27 kilometres from Hobart. Mr White’s injuries included a spinal cord injury (central cord syndrome), a brachial plexus injury, injuries to his vertebrae and crushing injuries to his upper and lower right limbs requiring operative intervention. Mr White continues to suffer from the consequences of the orthopaedic and neurological injuries he suffered in the accident. He is now able to walk, but has an effectively useless right arm due to his brachial plexus injury and restrictions with the use of his right arm. He has not returned to paid employment. His injuries have continued to be a source of pain and a very significant disability up to the present time. The statement of claim alleges that Mr White had been a truck driver primarily employed by a business owned by his father. He alleges that as a result of his injuries it is unlikely that he will ever be able to return to work as a driver.
MAIB’S DEFENCE
MAIB denies Mr Bennett’s negligence. It also claims that if Mr Bennett was negligent then Mr White’s injuries were caused or contributed to by his own negligence. MAIB allege that Mr White failed to wear a seat belt. Further it alleges that Mr White travelled as a passenger in Mr Bennett’s truck when he knew or ought to have known that there was a risk of accident occurring owing to the prior consumption by Mr Bennett of ecstasy; and he failed to ask him to slow down or stop the truck so that he could get out.
WILL LIABILITY BE AN ISSUE?
Mr Webster, the Tasmanian solicitor for MAIB, deposes that some thirteen witnesses, all of whom are from Tasmania, will “need to be called at the trial of the action on the question of liability.” The accident and Mr Bennett’s death were investigated by Tasmania Police and the Coronial Division of the Magistrates’ Court of Tasmania.[4] The Coroner handed down his decision without holding a formal inquest. The Coroner concluded that drugs, excessive speed and the steep and winding nature of the roadway were causative factors in the accident.
[4]Affidavit of Robert Brian Webster of 28 April 2011, (Webster’s first affidavit), [17].
The Coroner’s file discloses that statements were obtained from 13 witnesses including Mr White. These were four police officers, two doctors (one of whom conducted the post mortem examination on Bennett) , a forensic chemist, a transport inspector and five lay witnesses including Mr White. Mr Webster says that “it is also likely that at the trial the Court would benefit from a view of the roadway leading to the collision and I suspect that counsel, whom I would ordinarily brief, would make the application to the Court for a view.”[5]
[5]Webster’s first affidavit, [20].
Mr Burt is Mr White’s solicitor. He is very experienced in personal injury law and in the last 20 years has practised almost exclusively in the field of transport accident law.[6]
[6]Affidavit of Peter Ralph Howard Burt of 9 May 2011, (Burt affidavit), [3].
Mr Burt disputes that the 13 witnesses will need to be called. He says that in his opinion there will be no factual dispute that is likely to require their attendance at the trial. He says that the accident was a single vehicle accident and Mr White was not driving but a passenger. Mr Burt says that he is unaware of any suggestion that the truck was unroadworthy and the material before the Coroner suggested the contrary. He says that he is unaware of any suggestion the road was defective and the material before the Coroner suggests the contrary. He says that Mr Bennett was affected by ecstasy at the time of the accident. The Coroner concluded:
“Mr Bennett was an experienced truck driver … It is apparent that he selfishly and deliberately took the illicit drug ecstasy and made the foolish decision to drive. It is my conclusion that drugs, excessive speed and the steep and winding nature of the roadway were causative factors in this crash and Mr Bennett’s subsequent death and the devastating injuries to Mr White.”[7]
[7]Burt affidavit, [9].
Mr Burt says has been informed by Mr White and believes that Mr White was not aware Mr Bennett had taken any drugs and had taken none himself. He says he is not aware of any evidence to the contrary including in Mr White’s medical records concerning the accident and Mr White’s treatment.
Mr White says that in his opinion a view would not be necessary. He says that the investigating officers reported finding tyre marks on the road referred to in the Coroner’s report. He says that there is no dispute as to their existence and they are unlikely to be visible some two years on.
DAMAGES
Mr Webster says that if Mr White qualifies for daily care under the Civil Liability Act 2002 of Tasmania, then in substance the court is not to include in the damages any amount of the daily care which that person requires as a result of the personal injury after the date of the judgment as that amount will be recoverable as medical benefits or disability benefits. MAIB is to continue to pay those benefits for so long as the person needs them after the date of judgment.
Mr Webster refers to Mr White’s claim for economic loss and says that this is likely to involve evidence from Mr White’s previous employers that he identifies as four freight businesses all of which are based in Tasmania in or close to Hobart.[8]
[8]Webster’s first affidavit, [27].
Mr Webster further says that Mr White has received medical treatment and or rehabilitation assistance which is ongoing from well over a dozen doctors and health care professionals all of whom are based in Tasmania. Mr Webster says that Mr White has been independently assessed by a rehabilitation medicine physician Dr David Burke, in Hobart. Mr Burt says that Mr Webster failed to mention that Dr Burke came from Melbourne to carry out the assessment.
Mr Webster says that he has been instructed by the MAIB to arrange assessments from a reconstructive and plastic surgeon; a psychiatrist; an orthopaedic surgeon and from a neurologist. He says these will be carried out in Hobart.
Mr Burt says that, apart from Mr White’s initial treatment at the Royal Hobart Hospital, the bulk of Mr White’s medical treatment has been provided by medical practitioners, specialists and hospital staff at the Austin Hospital and Royal Talbot Rehabilitation Hospital in Melbourne.
He says that Mr White was airlifted by ambulance helicopter to the Royal Hobart Hospital, where he was admitted at approximately 11.30am on 11 January 2009. Mr White underwent surgical treatment, and on 14 January 2009, he was transferred by air ambulance to the Austin Hospital in Heidelberg, Victoria.
Mr Burt says that Mr White then remained an outpatient at the Austin Hospital from 14 January 2009 until 9 February 2009. On 9 February 2009, Mr White was transferred by road ambulance to the Royal Talbot Rehabilitation Hospital in Kew, Victoria. Mr Burt says that Mr White remained there as an inpatient, undergoing specialised spinal rehabilitation, until 22 April 2009.
Mr Burt says that whilst Mr White was an inpatient at the Austin Hospital and Royal Talbot Rehabilitation Hospital, he was under the overall care of Dr Steven Hill, rehabilitation specialist of the Victorian Spinal Cord Service, as well as numerous other medical practitioners, occupational therapists, physiotherapists and other allied health personnel.
Mr Burt says that Mr White was then transferred to St John’s Campus of the Calvary Hospital in South Hobart, where he remained for about 3½ weeks, during which time arrangements were put in place for his discharge. Mr Burt says that Mr White was finally discharged to his grandmother’s home, where he remained for several months until he moved into his own home in Richmond, Tasmania, where he has remained to the present time.
Mr Burt says that Mr White has since returned to Victoria for continuing treatment provided by two specialist plastic and reconstructive surgeons. Mr White underwent complex reconstructive surgery at the Mercy Hospital in Melbourne on 15 September 2010 and then again at the Royal Melbourne Hospital on 24 September 2010. Mr Burt says that the surgery was performed by Mr Scott Ferris and Ms Natasha van Zyl, plastic and reconstructive surgeons of Melbourne.
Mr Burt says that Mr White has also been assessed by a number of medico-legal specialists in Melbourne, including Dr Michael Epstein, psychiatrist, on 21 July 2010, Mr Peter Moran, orthopaedic surgeon, on 21 July 2010, Associate Professor Richard Stark, neurologist, on 22 July 2010 and Mr John Anstee, plastic and reconstructive surgeon, on 22 July 2010. Mr Burt says that each of these specialists has provided him with a report concerning Mr White’s injuries. Mr Burt says that copies of these reports have been provided to MAIB’s Solicitors, Messrs Dobson, Mitchell and Allport.
Mr Burt says that Mr White has been treated by a rehabilitation specialist in Hobart, Dr Slatyer, and also by his own family general practitioner, Dr Braithwaite. Mr Burt says that Mr White instructs him that Mr White has not seen Dr Slatyer for in excess of six months, and only sees his general practitioner on an “as needs” basis, mainly to obtain certificates of incapacity to enable him to continue receiving income support benefits from MAIB.
Mr Burt states that in his opinion, and based on his experience, it would not be necessary to call the ambulance officers or the doctors who treated Mr White at the Royal Hobart Hospital to give oral evidence. Mr Burt says that he is not aware of anything contentious in their reports. Mr Burt says that their reports could be, and would typically be, tendered (or read). He says that, typically, he would expect that in a case such as this, Mr White would call to give oral evidence his more recent treating specialists, who would then explain and expand upon the reports, clinical records, clinical findings and treatment initially given to Mr White in Hobart as part of their evidence.
Mr Burt says that he is not aware of any reason why MAIB would seek to call oral evidence from any of the medical personnel mentioned in Mr Webster’s first affidavit.
Mr Burt says that it seems to him likely that Mr White would probably wish to call evidence at the trial from the following Melbourne-based doctors:
(a) Dr Steven Hill;
(b) Mr Scott Ferris and/or Ms Natasha van Zyl;
(c) Dr Michael Epstein;
(d) Mr Peter Moran;
(e) Associate Professor Richard Stark;
(f) Mr John Anstee.
Mr Burt says that Mr White would probably also wish to call evidence at the trial from Dr Braithwaite and Dr Slatyer, who are doctors based in Tasmania. Mr Burt expresses the opinion that the evidence of these two Tasmanian-based doctors is likely to be of much less significance to the case than the evidence of the Melbourne-based doctors. He says that as such, the Tasmanian doctors’ evidence would, in his opinion, be much more amenable to being called by video-link, if need be.
Mr Burt says that Dr Bourke, who examined Mr White in Hobart on behalf of MAIB, is a Victorian-based specialist who travelled to Tasmania to examine Mr White.
Mr Burt says that in a case of this dimension, he does not dispute that it is entirely appropriate for MAIB to arrange examinations by a plastic surgeon, a psychiatrist, an orthopaedic surgeon and a neurologist, as Mr Webster says. Mr Burt says, however, that it is premature to determine whether these doctors will have to give oral evidence until such time as their reports are received, as he says their opinions may not differ in substance from the medical opinions expressed by Mr White’s doctors.
Mr Burt says that, based on his experience in these cases, there is a very real prospect, if not a likelihood, that their reports will not differ in substance from those obtained by Mr White, as this case does not have the sorts of complications that, in his experience, often give rise to disputes between medical practitioners. In this respect, Mr Burt says that:
(a) the injuries were traumatic in origin;
(b) the injuries were clearly apparent and distinct;
(c) the injuries sustained were consistent with the mechanism that caused them;
(d) there does not appear to be an issue about whether Mr White had any relevant pre-existing or degenerative condition;
(e) so far as Mr Burt is aware, there is no suggestion that Mr White has developed “functional”-type problems that complicate an assessment of his physical injuries; and
(f) in any event, Mr Burt says that Mr White’s medical expenses have all been paid by MAIB. Mr Burt says that these medical appointments have not yet been arranged, or, if they have, he has not been advised of them. Mr Burt says that if the proceeding remains in Victoria, MAIB will be able to arrange medical appointments with Melbourne-based doctors in all of the specialities referred to in Mr Webster’s first affidavit.[9]
[9]Burt affidavit, [23]-[25].
THE SUPREME COURT OF TASMANIA
Mr Webster deposes that if the proceedings are transferred to the Supreme Court of Tasmania, the proceedings are likely to be sent to mediation. He also says that once certified as ready for trial, the matter will be listed for trial some two to four months later. Mr Burt takes no issue with Mr Webster’s evidence about the likely progress of the proceeding if it is transferred to the Supreme Court of Tasmania.
THE FINANCIAL POSITION OF MR WHITE
Mr Burt says that he is advised by Mr White and believes that Mr White’s financial position is precarious. He says that Mr White has informed him and he believes that he receives loss of income payments from MAIB in the sum of approximately $640.00 net per week, from which he is paying off a mortgage at the rate of $450.00 per week and is also paying off a motor car at the rate of $115.00 per week. Mr Burt says that Mr White has informed him and he believes that, but for his injuries, Mr White would still be working as a heavy transport driver earning in excess of $1,000.00 net per week.
Mr Burt is acting on a no win/no fee basis and has agreed to personally carry the cost of the out-of-pocket expenses of the proceeding as Mr White clearly does not have the capacity to cover those costs. Mr Burt says that Mr White has told him that if it were not for these arrangements, he would be unable to pursue his claim for damages.
Mr Burt says that if the proceeding were transferred to Tasmania, the costs of the prosecution would increase. He says that on top of the additional costs of trial, he is not admitted to practice in the State of Tasmania and so Mr White would have to find new solicitors to represent him, or he would have to retain a Tasmanian firm to act as his agent.[10]
[10]Burt affidavit, [28].
MR WHITE’S RETENTION OF MR BURT
I was informed from the bar table and accept that Mr White retained Mr Burt’s services while he was in Melbourne receiving medical treatment. There is no suggestion that he was engaged in any forum shopping.
LEGAL PRINCIPLES
The Jurisdiction of Courts (Cross-vesting) Act 1987 forms part of a common scheme adopted by the Commonwealth, and all the states and territories.
The preamble to the Act relevantly provides:
Whereas inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable - …. if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceedings will be transferred to the appropriate court.
Section 5 is headed “Transfer of proceedings.” That section deals with various circumstances where proceedings may be transferred from one court to another. In several instances the court is directed to transfer the proceeding where it appears that it is more appropriate that the proceeding be determined by the other court.
The High Court of Australia held that provisions of the federal cross vesting statute were invalid that authorised the Federal Court to exercise jurisdiction (whether original or appellate) conferred on it by State law relating to cross-vesting of jurisdiction. This did not affect the validity of the scheme for cross-vesting between the Supreme Courts of the States.[11]
[11]Re Wakim; Ex parte McNally (1999) 198 CLR 511. See discussion by Gummow J in Schultz at [47].
The provision relevant to this application to transfer this proceeding from the Supreme Court of Victoria to the Supreme Court of Tasmania is in section 5(2)(b)(iii) of the Act. That relevantly provides -
(2) Where -
(a) A proceeding (in this sub-section referred to as the `relevant proceeding') is pending in the Supreme Court (in this sub-section referred to as the `first court'); and
(b) It appears to the first court that -
(i) . . .
(ii) . . .
or
(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.
A court may transfer a proceeding on its own motion as well as on the application of a party or on the application of the Attorney-General of the Commonwealth or of a State of Territory.[12] An appeal does not lie from a decision of a court in relation to the transfer of a proceeding.[13]
[12]Section 5(7).
[13]Section 13. As Gillard J points out in Ewins v BHP Billiton Limited [2005] VSC 4 (Ewins) at [10] there is a right of appeal from a single judge to the High Court pursuant to s 73(ii) of the Constitution subject to leave.
The High Court of Australia has considered the application of the Act in BHP Billiton Limited v Schultz.[14] Since that decision, several decisions in this court have considered the relevant principles that should be applied.[15] Many of these principles are set out in the decision of Gillard J’s in Ewins as has been recognised in subsequent decisions of this Court.[16]
[14](2004) 221 CLR 400 (Schultz).
[15]Ewins; Hall v Australian Finance Direct Limited [2005] VSC 306 per Hollingworth J (Hall); Slater & Gordon Pty Ltd v Porteus [2005] VSC 398 per Whelan J (Slater & Gordon); McLeod v Munro [2005] VSC 375 per Dodds-Streeton J (McLeod) Simpson v Francke [2006] VSC 200 per King J (Simpson); Holt v Rorehan [2006] VSC 148 per Harper J (Holt);; Eden v Amaca Pty Ltd [2007] VSC 374 per Kaye J (Eden); Kellow v Irish Murphy’s Pty Ltd [2010] VSC 239 per Warren CJ (Kellow); Lloyd v Riverland Regional Health Services Inc [2010] VSC 350 per Emerton J (Lloyd).
[16]Ibid.
The relevant principles may be summarised as:
(a) The Act requires that the [first] court should exercise the power of transfer whenever “it appears” that it is in the interests of justice that it should be exercised.[17]
[17]Schultz at [14] per Gleeson CJ, McHugh and Heydon JJ and at [17] per Gummow J (with whom Hayne J agreed) ; and Ewins [16].
(b) It is not necessary that it should appear that the first court is a “clearly inappropriate” forum.[18] It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate than the first court.[19]
[18]The reference to a “clearly inappropriate” forum is the test adopted by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 that should be applied in an application to stay a proceedings on the grounds of forum non conveniens. In Schultz at [7]-[11] Gleeson CJ, McHugh and Heydon JJ distinguish between the test to be applied in such an application and the test that should be applied in an application under the Jurisdiction of Courts (Cross-vesting) Act 1987.
[19]Ibid.
(c) The court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.[20]
[20]Schultz at [14] per Gleeson CJ, McHugh and Heydon JJ when distinguishing between an application for a stay on the ground of forum non conveniens and an application under the Act.
(d) The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.[21]
[21]Schultz at [15] per Gleeson CJ, McHugh and Heydon JJ.
(e) The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.[22]
[22]Schultz at [62]-[63] per Gummow J (with whom Hayne J agreed); Ewins at [17].
(f) It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.[23] Rather the jurisdiction must be exercised when “it appears” to the court that “it is in the interests of justice” that the proceeding be determined in the Supreme Court of another State or Territory.[24] Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.
[23]Schultz at [71] per Gummow J (with whom Hayne J agreed).
[24]Schultz at [71] per Gummow J (with whom Hayne J agreed); Bankinvest AG v Seabrook (1988) 14 NSWLR 711 per Rogers AJA at 727 (Bankinvest). In Ewins at [23] Gillard J held that although persuasive it was not adopted by the majority of the High Court. He said he was not prepared to accept that it represents the law.
(g) The court should adopt what has been described as a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.[25]
[25]Bankinvest at 714 per Street CJ; approved in Schultz at [13] per Gleeson CJ, McHugh and Heydon JJ
(h) The appropriate court is the natural forum as determined by connecting factors to that forum.[26]
[26]Schultz at [10] per Gleeson CJ, McHugh and Heydon JJ; Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 the House of Lords (Spiliada); Ewins at [31].
(i) Relevant connecting factors include matters of convenience and expense[27] such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.[28]
[27]Preamble to the Act “Whereas inconvenience and expense have..”.
[28]Schultz at [18]-[19] per Gleeson CJ, McHugh and Heydon JJ.
(j) In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.[29]
[29]Schultz at [19] per Gleeson CJ, McHugh and Heydon JJ.
(k) If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.[30]
[30]Ibid.
(l) Factors which may be relevant to a tortious action are:[31]
[31]Ewins at [29].
(i) The place where the wrong occurred.
(ii) Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.
(iii) The convenience of the parties and witnesses. However in this day and age this factor may not carry substantial weight because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because the provision of evidence by audio visual link.
(iv) The law governing the proceeding.
(v) The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with a particular evidentiary and procedural rules hearing particular types of cases.
(vi) The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.[32]
[32]Ewins at [29].
(m) 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.[33] Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.[34]
[33]Ewins at[33].
[34]James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 557 (James Hardie) at 361 per Spigelman CJ.
(n) A relevant factor is whether the coincidence of the lex fori[35] and the lex loci delicti[36] will avoid debates concerning substantive and procedural law.[37]
[35]Law of the forum.
[36]Law of the place of the wrong.
[37]Schultz at 262 per Gummow J (with whom Hayne J agreed).
(o) The plaintiff’s choice of forum by itself is not a relevant connecting factor.[38]
[38]Schultz; Ewins at [12]. Gummow J said at [77] in Schultz “The phrase “otherwise in the interests of justice” in sub para (iii) of s 5(2)(b) of the Cross-vesting Act requires the Supreme Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff.”
(p) Each case depends on its own particular facts.[39]
(q) The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.[40]
[39]Eden at [10].
[40]Ewins at [38].
APPLYING THE PRINCIPLES TO THE FACTS OF THIS CASE
Applying those principles in this matter, the connecting factors to Tasmania are that both the plaintiff and the defendant are residents of Tasmania. The tort occurred in Tasmania. Although the law of negligence is common to both Victoria and Tasmania, Tasmania does have some particulars laws dealing with the assessment of damages.
Importantly, I accept that liability is unlikely to be the main issue, although it may be an issue. MAIB have raised issues of contributory negligence that may involve Tasmanian witnesses.
I accept, however, that the main issue will be an assessment of damage. The injuries to Mr White and his prognosis will be the substantive issues. The main treating and medico legal witnesses are likely to be in Melbourne, whether called for Mr White or MAIB. I accept that video link evidence can be given although it is not ideal. In my opinion, the convenience of hearing the evidence of the Victorian medico legal consultants and the treating medical practitioners in Victoria is a strong connecting factor to the Victorian forum. Nevertheless, they are mitigated by the availability of video link evidence.
No evidence was led before me that the matter would take longer to get on in Tasmania than it would in Victoria. I can take judicial notice of the short time it takes for personal injury matters to be listed for hearing in this Court. Mr Webster says that the matter should be listed within 2-4 months of it being certified as ready for trial. Mr White has not suggested that he would be materially prejudiced on this ground. The Supreme Court of Victoria has a personal injuries list and the proceeding is in this list.
Mr White’s solicitor says he is acting on a no win/no fee basis. Mr Burt is bearing the preliminary expenses. I accept that Mr White does not have the capacity to cover those costs. Mr Burt says, and I accept, that he has done this on the assumption that the proceeding and trial will be conducted in Victoria. Mr Burt says that Mr White has instructed him that if it were not for these arrangements he would be unable to pursue his claim for damages. Mr White says that if the proceedings were transferred to Tasmania the costs of its prosecution would increase.
MAIB responds that no win/no fee solicitors are available in Hobart. That evidence does not establish that they would in fact be prepared to take Mr White’s case and particularly whether they would pay the preliminary expenses.
Neither party referred me to s 5(8) of the Act that allows Mr Burt to continue to act for Mr White in the proceeding if it is transferred to the Supreme Court of Tasmanian. Nevertheless, I accept that the costs of prosecuting the proceeding would increase if it were transferred to the Supreme Court of Tasmania.
As indicated above, each case must be decided on its own circumstances. Financial circumstances are relevant. Warren CJ in Kellow acknowledged the relevance of the financial circumstances of the plaintiff.[41] There the plaintiff had injured herself slipping in the defendant’s premises in Hobart. She took proceedings in the Supreme Court of Victoria. The defendant applied to transfer the proceedings to the Supreme Court of Tasmania. The witnesses as to the event were in Tasmania. Her medical witnesses were in Melbourne and Albury. The plaintiff lived at Wodonga in Victoria. The Chief Justice concluded the plaintiff would face undue hardship in all the circumstances if required to continue her proceedings in the State of Tasmania. For that and other reasons, the Chief Justice found there was no sound basis to require the plaintiff to have her proceedings relocated to Tasmania.
[41]Kellow at [9] and[20].
Emerton J in Lloyd placed considerable emphasis on the personal circumstances of the plaintiff. The plaintiff alleged that she sustained injuries as the result of an operation she underwent at the defendant’s hospital in Berri, South Australia. The plaintiff issued proceedings in the Supreme Court of Victoria. The proceeding was to be heard in Mildura. The plaintiff lived in South Australia but by the time of the trial would be living in Griffith in New South Wales. Emerton J took into account the witnesses and the proximity of Berri to Mildura. Importantly, Emerton J took into account that the plaintiff had secured a solicitor in Mildura after unsuccessfully trying to obtain one in Renmark where she lived. The solicitor acted on a no win/no fee basis. Emerton J said it was uncertain whether the plaintiff’s solicitor would act for her in Adelaide. Emerton J said that the plaintiff may well be discouraged from prosecuting her cause of action if she was to start afresh to secure the assistance she needs. Emerton J refused the application of the Hospital to transfer the proceeding to the Supreme Court of South Australia.
In Lloyd[42] Emerton J said that having regard to the plaintiff’s selection of her solicitor did not involve any presumption in favour of the plaintiff’s choice of forum. Her Honour said that “it simply recognises that the particular circumstances in which the plaintiff finds herself in this case are relevant to determining where the interests of justice lie.”[43]
[42]Lloyd at [24].
[43]Ibid.
I believe that there is a risk that Mr White may not retain his solicitor Mr Burt if the proceedings were moved to the Supreme Court of Tasmania with the extra expense that would involve for Mr Burt. MAIB is well resourced. Mr White has virtually no resources.
Importantly, if the proceeding continues in the Supreme Court of Victoria, Mr White has an established relationship with an experienced personal injuries solicitor who is bearing the preliminary expenses. If the matter is transferred to the Supreme Court of Tasmania, the repercussions on him are uncertain. He is only a young man who has been badly injured with no financial resources. I see the interests of justice being served by retaining the status quo rather than placing his proceeding in a state of uncertainty by transferring it to the Supreme Court of Tasmania. The advantages to MAIB of transferring the proceeding to the Supreme Court of Tasmania are minor. It has the experience, expertise and resources to adequately conduct its defence in the Supreme Court of Victoria.
In saying this, I am not implying in any fashion that the Supreme Court of Tasmania would not deal with the proceeding expeditiously and efficiently.
Further, a primary consideration in the interests of justice must be to avoid taking any step that might impede Mr White pursing his claim. Mr White’s chances of taking his case to court may well depend on retaining his current solicitor. I do not consider it in the interests of justice to take the risk that his opportunity to pursue the claim may be compromised by transferring the proceedings.
For all these reasons, I am not satisfied that it appears to me that it is in the interests of justice that the proceeding be determined by the Supreme Court of Tasmania rather than the Supreme Court of Victoria.
Accordingly, I order the application be dismissed with costs.
Dodds-Streeton J in McLeod v Munro [2005] VSC 375 at [37] disagreed with the view that the applicant may bear some burden. Dodds-Street J found the observations of Gummow J in Schultz to be “highly persuasive.” So to did Whelan J in Slater & Gordon at [21] and Harper J in Holt at [14]. Accordingly, in the absence of binding authority to the contrary, I should follow the observations of Gummow J with whom Hayne J agreed.
Harper J accepted In Holt at [14] that he agreed with Gummow J that it is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. He held, however, that an applicant bore some burden as unless the court decides it is in the interests of justice that the proceedings be determined elsewhere, the proceeding will stay where it is.
In Eden Kaye J observed that by reason of theses cases the law in Victoria on the onus of proof or onus of persuasion is unsettled. He pointed out that it is the applicant who seeks to persuade the court that it is otherwise in the interests of justice that the second court determine the case. He said “to that extent an “onus” of persuasion falls on the applicant. (Eden at [12]).
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