Wyllie v Australian City Properties Pty Ltd

[2000] VSC 437

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6373 of 2000

THELMA CLARE WYLLIE	Plaintiff
v.
AUSTRALIAN CITY PROPERTIES PTY. LTD.	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 OCTOBER 2000
DATE OF JUDGMENT:	20 OCTOBER 2000
CASE MAY BE CITED AS:	WYLLIE v. AUSTRALIANCITY PROPERTIES
MEDIUM NEUTRAL CITATION:	[2000] VSC 437

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CATCHWORDS:      Cross-vesting application – Accident in Western Australia – Plaintiff resided in New South Wales – Proceeding instituted in Victoria – In interest of justice that it be transferred to Western Australia.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. T.P. Tobin	B. Lester Oldham
For the Defendant	Mr. P. Nugent	Minter Ellison

HIS HONOUR:

1. This is an application by the defendant Australian City Properties Pty Ltd to cross-vest the proceeding to the Supreme Court of Western Australia pursuant to the provisions of s.5 of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Victoria); alternatively, pursuant to the provisions of s.5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Commonwealth).

1. The plaintiff Thelma Clare Wyllie is a resident of the State of New South Wales.  In February 1998 she and her husband made a trip to Broome in Western Australia, one assumes for a vacation, and stayed at the Cable Beach Resort on the outskirts of Broome.

1. On 4 February 1998 (although in para. 5 of the plaintiff's statement of claim the date is given as 4 February 1995) the plaintiff was getting into a shower and fell when the handrail that she was holding separated from the wall.  She received initial medical treatment for the injuries she received in Broome and subsequently returned with her husband to New South Wales.

1. On 8 August 2000 the plaintiff instituted proceedings against the defendant in this court seeking to recover damages in respect of the injuries she sustained as a result of her fall.  I think it would be fair to say that the litigation has little or no connection with this court.

1. The basis upon which the defendant makes its application to transfer the proceeding to Western Australia is, firstly, that the accident occurred in Western Australia; secondly, that the defendant is incorporated in Western Australia and carries on business in that state; and thirdly, that five witnesses it proposes to call at the trial in respect of liability are all resident in Western Australia.

1. In further support of its application, it is said that any trial conducted in Western Australia will be conducted just as expeditiously in either the Supreme Court or District Court of that State and indeed, having regard to the time limits imposed by the Rules of Court of that State in respect of the conduct of litigation, probably more so.  Further, as the District Court of Western Australia has unlimited jurisdiction in personal injury cases the case could very easily be transferred from the Supreme Court to that court and, if the parties so desired, the trial could be heard by the District Court sitting at Broome.

1. During the course of submissions there was made reference to the fact that the plaintiff has been treated by, I think, some six medical practitioners in New South Wales since her return to her home and that it would be more inconvenient for those witnesses to give evidence in Western Australia than it would be for them to give evidence in Victoria.  I am not persuaded that that would be the case.  I see no difference between witnesses resident in New South Wales giving evidence via video link whether to Victoria on the one hand or Western Australia on the other.

1. Whilst it is true that a plaintiff is entitled to have a proceeding instituted in a jurisdiction of his or her choice, the fact of the matter is that this proceeding has really no connection whatsoever with the State of Victoria.  In that situation, and for the reasons advanced by counsel for the defendant, it is my opinion that it is in the interests of justice that it be transferred to the Supreme Court of Western Australia.

1. I order, therefore, that pursuant to the provisions of s.5 of the Jurisdiction of Courts Cross-Vesting Act 1987 (Victoria) this proceeding be transferred to the Supreme Court of Western Australia.

1. In the circumstances, I order that the parties costs of the application be their costs in the cause.

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