Williams v TT-Line Company Pty Ltd - [2019] VSC 55

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2018 00998

ANDREW WILLIAMS AND ORS (according to the attached Schedule)	Plaintiffs
v
TT-LINE COMPANY PTY AND ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2019
DATE OF JUDGMENT:	13 February 2019
CASE MAY BE CITED AS:	Williams & ors v TT-Line Company Pty Ltd & anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 55 Revised 9 May 2019

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PRACTICE AND PROCEDURE – Application to transfer proceeding to Tasmania – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5 – Whether in the interests of justice to transfer – Irwin v State of Queensland [2011] VSC 291 referred to – Relevant connecting factors – Weight to be given to non‑exclusive jurisdiction clause – Financial circumstances of plaintiffs relevant – Kellow v Irish Murphy Pty Ltd [2010] VSC 239, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C Harrison QC with Mr M Seelig	Ryan Legal
For the First Defendant	Ms M Norton	Page Seager (by its town agent HFW Australia)
For the Second Defendant	Mr M N C Harvey	Colin Biggers & Paisley

HER HONOUR:

This proceeding is an action arising out of the death of thirteen horses on 28 or 29 January 2018. The horses were polo ponies, which were transported from Melbourne to Devonport, Tasmania and back on the ‘Spirit of Tasmania’ ferry service operated by the first defendant (‘TT-Line’). While investigations are continuing, the horses died while in transit on the return journey, although their deaths were not discovered until the first plaintiff (‘Mr Williams’) and a colleague opened the trucks in which the horses were transported in Yarra Glen on the morning of 29 January 2018.

The plaintiffs are Mr Williams and his wife Rebecca, who together owned seven of the horses. The third plaintiff, Twynam Agricultural Group Pty Ltd (‘Twynam’) is the owner of six of the horses. The fourth plaintiff, Willo Polo Pty Ltd (‘Willo’) was the operator of a polo based business. Mr Williams is a director of Willo and was engaged by Twynam as its Horse Complex Manager in Richmond, New South Wales, and was the manager of all of the horses. Mr and Mrs Williams assert that the death of the horses has wiped out a substantial part of their livelihood, as not only have they lost the horses, but Willo, which Mr Williams controls, has lost its business.

As noted above, TT-Line is the operator of the Spirit of Tasmania. The second defendant, Qube Ports Pty Ltd (“Qube”) provide freight services for the Spirit of Tasmania for TT-Line.

In their amended statement of claim filed on 25 September 2018 (the proceeding having commenced on 24 August 2018), the plaintiffs allege, as against TT-Line, that it had breached the terms of its agreement with Mr Williams to transport the horses from Victoria to Tasmania and back again,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 55
Decision Date: 13 February 2019

CaseChat Overview and Summary

The case of Williams v TT-Line Company Pty Ltd involved the plaintiffs seeking to transfer their proceedings from the Supreme Court of Victoria to the Supreme Court of Tasmania. The dispute arose from a shipping incident where the plaintiffs alleged negligence on the part of the defendants, TT-Line Company Pty Ltd. The plaintiffs initially filed their case in Victoria, but they later applied for the case to be transferred to Tasmania, citing various factors they believed warranted a change of venue.

The central legal issues before the court were whether the transfer of the proceedings was in the interests of justice and whether the application met the jurisdictional requirements under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic). Specifically, the court had to consider section 5 of the Act, which requires that a transfer be allowed if it is in the interests of justice. The plaintiffs' application relied on several connecting factors, including the location of the alleged incident and the financial circumstances of the parties. Additionally, the court considered the relevance of a non-exclusive jurisdiction clause in the contract between the parties and the financial implications for the plaintiffs if the case remained in Victoria.

In its decision, the court examined the principles established in Irwin v State of Queensland and Kellow v Irish Murphy Pty Ltd, focusing on what constitutes being in the interests of justice. The court found that while the plaintiffs had established some relevant connecting factors to Tasmania, these were not determinative. The weight given to the non-exclusive jurisdiction clause and the financial circumstances of the plaintiffs played a significant role in the court's deliberations. Ultimately, the court determined that the application did not sufficiently demonstrate that a transfer was in the interests of justice. Consequently, the application to transfer the proceedings was dismissed.

The court's final order was that the application to transfer the proceedings from the Supreme Court of Victoria to the Supreme Court of Tasmania be dismissed. The case would therefore continue to be heard in Victoria.

Orders