Yates v The State of New South Wales
[2021] ACTSC 193
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Yates v The State of New South Wales |
Citation: | [2021] ACTSC 193 |
Hearing Date: | 19 July 2021 |
DecisionDate: | 25 August 2021 |
Before: | McWilliam AsJ |
Decision: | See [61] |
Catchwords: | PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer to NSW Supreme Court in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – where there are connecting factors with NSW but where plaintiff’s mental health condition may be exacerbated by travelling to Sydney – whether transfer is in the interests of justice |
Legislation Cited: | Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 25 (now repealed) |
Cases Cited: | Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Bateman and Another v Fairfax Media Publications Pty Ltd & Ors [2013] ACTSC 72; 8 ACTLR 13 BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 Hayward v Barratt [2000] NSWSC 708 |
Parties: | Dylan Yates (Plaintiff) The State of New South Wales (Defendant) |
Representation: | Counsel J Sheller SC with J Tryon (Plaintiff) K Lindeman (Defendant) |
| Solicitors Nyman Gibson Miralis (Plaintiff) Makinson d’Apice Lawyers (Defendant) | |
File Number: | SC 31 of 2021 |
McWilliam AsJ:
The plaintiff in this proceeding, Mr Dylan Yates, is suing the State of New South Wales for various torts said to have been committed by officers of the New South Wales Police Force (NSW Police) on 23 November 2018. They include assault, battery and malicious prosecution.
The present application
By application in proceeding filed 30 April 2021, the defendant is seeking that the proceeding commenced in this Court be transferred to the Supreme Court of New South Wales (NSW Supreme Court). The plaintiff opposes the application.
The Court’s power
The application is brought pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT). The provision permits the Court to transfer the proceeding to the Supreme Court of another state or territory if it is otherwise in the interests of justice that the proceeding be determined by the Supreme Court of another state or territory.
Applicable principles
The parties were in agreement that the test for determining the present application is what the “interests of justice” require. The parties also agreed that the applicable principles on such an application were largely encapsulated in the judgment of the High Court of Australia in BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 (BHP v Schultz). They have been followed in this Court in cases such as Bateman and Another v Fairfax Media Publications Pty Ltd& Ors [2013] ACTSC 72; 8 ACTLR 13 (Bateman), and most recently by this Court as presently constituted in EBA v Commonwealth of Australia [2021] ACTSC 186 at [7]-[17]. Insofar as these principles apply to the circumstances of the present application, they are repeated here for ease of reading.
The legislation does not confer a discretion on the Court. If satisfied that it is in the interests of justice that the action be determined by another Supreme Court, this Court must order a transfer: BHP v Schultz at [63] per Gummow J.
While the commencement of the proceedings in a particular forum is indicative of the plaintiff’s choice, that choice does not of itself require any specific emphasis or weight: Bateman at [68(d)], citing BHP v Schultz at [25], [77], [170] and [258]. Nevertheless, the reasons why the choice was made may be relevant and should be considered: BHP v Schultz at [15] per the plurality (Gleeson CJ, McHugh and Heydon JJ).
It is not necessary that the first court (here the ACT Supreme Court) is clearly an inappropriate forum. Rather, it is both necessary and sufficient that, in the interests of justice, the second court (being the Supreme Court of NSW) is a more appropriate forum: Bateman at [68(e)], citing BHP v Schultz at [7]-[11], [77] and [161]-[168].
The approach the Court takes is a “nuts and bolts” case management decision: BHP v Schultz at [13] per the plurality, quoting Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 713-714 per Street CJ. The Court looks to “what would be the best order to make to facilitate the trial of the litigation”: Hayward v Barratt [2000] NSWSC 708 at [2], quoted in Bateman at [70(k)].
The interests of justice are not the same as the interests of the parties, although these should be considered and sometimes will coincide: BHP v Schultz at [15]. For example, containing costs and promoting efficiency are often common interests: Bateman at [68(f)].
Where the action is brought in tort, as is the case here, relevant connecting factors include the following non-exhaustive list:
(a)The location of the commission of the tort alleged;
(b)The place where the parties live;
(c)The convenience of the parties and witnesses;
(d)The law governing the proceedings;
(e)The experience of either court and its capacity to provide an efficient and speedy trial or where it has special expertise in the type of proceedings or particular evidentiary or other procedural rules that promote effective disposition of cases;
(f)The condition of the parties, including whether there is urgency arising; and
(g)Whether the assessment of any questions arising in the proceedings is dependent upon a degree of local knowledge.
The above factors are among a more detailed list contained in Bateman at [70(o)] (and see the authorities there-cited). In relation to the first two of those connecting factors, the comments of Spigelman CJ in James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357 (James Hardie v Barry) at [7] are of further guidance:
7 To determine which court is, in the interests of justice, the appropriate court, it is necessary to inquire, in the case of a tort, as to what is the place of the tort. Indeed, in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross Vesting) Act, where the place of the tort and the residence of the parties coincide, this will generally be determinative of the issue of ‘appropriate court', although other factors may need to be assessed in the process of determining where the interests of justice lie.
In relation to the third of those connecting factors, and absent some particular feature of a party or witness, the general convenience of the parties and witnesses by reference to where they reside or work may not now carry as much significance, due to the greater mobility of witnesses at modest costs, but more significantly, the ability for evidence to be taken by audio-visual link: BHP v Schultz at [85], cited in Bateman at [70(o)].
Do the interests of justice favour transfer in the circumstances of this case?
It is important to first understand the nature of the plaintiff’s claim, as it will explain one of the key arguments as to why the plaintiff resists the cross-vesting of the matter to the NSW Supreme Court.
The plaintiff’s claim
The Originating Claim and accompanying Statement of Claim were filed on 4 February 2021. At the time of filing, the plaintiff was a resident of the Australian Capital Territory (ACT).
The plaintiff claims that on 23 November 2018, he was driving a tow truck in the course of his employment. He was licensed to drive the tow truck. At the time, it was towing a Ford GT vehicle from Shepparton to Canberra.
He stopped at a Shell Service Station at Gundagai, NSW. While there, it is alleged that Senior Constable Andrew Murphy and Constable Michael Smith, officers of the NSW Police, pulled up behind the tow truck at the service station. The plaintiff alleges that Senior Constable Murphy approached the tow truck and asked the plaintiff if the car being towed was stolen or whether it was being towed legitimately.
By reference to the work log on his iPad that he showed to NSW Police at the time, the plaintiff alleges there was nothing to suggest the car was stolen.
According to the pleading, Senior Constable Murphy then made a comment which implied the plaintiff was a member of a motorcycle gang. The plaintiff says he has never been a member of any motorcycle gang.
The claim alleges the same police officer then asked if the plaintiff had any “13’s” tattooed on him and demanded to see any tattoos. Senior Constable Murphy then grabbed the plaintiff, pushed him to the rear of the tow truck and conducted a body search. In the course of this body search, the plaintiff alleges that Senior Constable Murphy twisted both of the plaintiff’s arms behind his back and directed him to remove his shoes.
The pleading goes on to allege that Senior Constable Murphy then informed the plaintiff that the two police officers were going to search the tow truck for guns and drugs. It is further pleaded that Senior Constable Murphy knew there was no lawful basis for that search.
There is then an altercation pleaded, during which Senior Constable Murphy is alleged to have pushed the plaintiff with force onto the road, removed the plaintiff’s bum bag from the tow truck and emptied out his belongings. The plaintiff further alleges that the bum bag contained $5000 in cash, which he found to be missing later in the day after he left the service station.
The next allegation in the pleading is that Senior Constable Murphy informed the plaintiff that the truck would be defected due to the condition of the driver’s seat, seatbelt and due to a leaking engine. However, an inspection of the vehicle four days later at Fyshwick Diesel Service on 27 November 2018 revealed no defect with the seat or seatbelt, and the engine was not leaking.
It is then pleaded that the plaintiff rang his employer while he was at the service station. The employer asked to speak with the officers. Senior Constable Murphy is then alleged to have taken the mobile phone from the plaintiff and terminated the call without speaking to the employer. The plaintiff’s employer rang back, and again the call was terminated at the direction of Senior Constable Murphy.
The claim then alleges that a defect notice was provided to the plaintiff and the plaintiff was told he had two hours to travel back to the ACT before it took effect.
The plaintiff’s employer then called once more and told the plaintiff to ask the officers of NSW Police for their names, badge numbers and station details. The officers told the plaintiff their names but did not give the plaintiff badge numbers or station details.
After being served with the defect notice, the plaintiff left the service station in the tow truck. He says he observed the NSW Police vehicle with the two officers in it travelling behind him. He thought the two officers were following him, so he turned off the road and drove back into the service station as he did not feel safe. The NSW Police vehicle followed the tow truck back into the service station. Senior Constable Murphy then got out and approached the plaintiff for a second time, demanding that he provide him with his driver’s licence and requesting that the plaintiff exit the vehicle. This time, the plaintiff refused. The police officers eventually left the service station.
The plaintiff pleads first, that as a result of the conduct of Senior Constable Murphy, the plaintiff feared the imminent apprehension of physical violence, constituting assault. Second, the police officer’s direct and intentional application of force to the plaintiff was a battery. Third, in relation to the events of 23 November 2018, the plaintiff was charged by the same police officer on 7 December 2018 with the offence of failing or refusing to comply with a requirement to submit to a search, contrary to the now repealed s 25(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The plaintiff entered a plea of not guilty and alleges there was no reasonable or probable cause for the laying of the charge. On 28 October 2019, the matter came before the Goulburn Local Court for hearing. After the hearing commenced, the charge for the offence was withdrawn by the prosecutor. The plaintiff pleads that this was malicious prosecution.
As a result of these matters, the plaintiff alleges he has suffered psychiatric injury resulting in post-traumatic stress disorder, anxiety, depression, major depressive disorder, hurt, humiliation and distress. He claims this has reduced his earning capacity, decreased the quality and enjoyment of life, and has resulted in him having difficulties with attention and concentration and other associated issues.
The place of the tort
The events giving rise to the alleged torts of assault and battery and malicious prosecution occurred respectively at Gundagai and Goulburn in NSW. The law of those torts is that of NSW. That factor favours NSW as being the more appropriate jurisdiction, and as a general rule should be given significant weight where both the plaintiff and defendant are also currently located in NSW, consistent with what was said in James Hardie v Barry set out above at [11] and Bateman at [70(p)].
However, the plaintiff’s current location is a result of a recent change in circumstances, as explained below. Further, the application of NSW law to the proceeding if it remains in this Court was not said to pose any difficulty. As the plaintiff submitted, there is one common law in Australia and the torts for which the plaintiff sues have not been modified by the NSW legislature. The questions of whether the causes of action are made out are essentially questions of fact which would be determined in the same way in any Australian jurisdiction.
The defendant submitted that transferring the proceedings to the NSW Supreme Court would avoid debate concerning substantive and procedural law. It was unclear to me what debate was contemplated on the facts of the present case. I am not persuaded that argument takes the matter any further than what has already been accepted, following James Hardie v Barry and Bateman.
The location and convenience of the parties and witnesses
Between the parties and witnesses, there are various connections across both the ACT and NSW.
The plaintiff resided in Calwell, ACT until as recently as early June 2021, when his health deteriorated to the point where he was unable to work. Whether this is temporary or permanent is not yet certain. He has moved to the home of his parents in Brocklesby, NSW to receive full time care from his mother. Again, the evidence did not suggest that was a permanent move. It was submitted the relocation may change depending on the plaintiff’s state of health.
The plaintiff submitted that a large number of potential witnesses for the plaintiff live either in the ACT or just over the NSW border. The affidavit evidence of the solicitor with the daily carriage of the matter for the plaintiff deposes to a number of treating doctors and specialists, all of whom are based in the ACT, with the exception of Dr David Yates whose surgery is in Jerrabomberra, a suburb falling on the NSW side of the ACT/NSW border.
Relevant personnel at the plaintiff’s former employer are also likely witnesses. The business previously operated out of the ACT but is now based just over the ACT/NSW border, in Queanbeyan, NSW.
The solicitor with carriage of the criminal proceeding dealt with in Goulburn local Court is a potential intended witness for the plaintiff on the malicious prosecution allegation. He is based in the ACT.
The plaintiff’s parents will also be likely witnesses. They live in Brocklesby, which is located in southern NSW. The evidence before the Court was that the ACT Supreme Court is considerably closer to where the plaintiff currently lives with his parents than the NSW Supreme Court.
The plaintiff’s expert clinical psychologist, Mr Sam Borenstein, is based in Kogarah in NSW. Mr Borenstein also gave evidence on this application in relation to the plaintiff’s condition. It is discussed separately below.
The fact that the defendant is the State of NSW obviously connects the defendant to that state. The officers were employed by NSW Police, who may be (but not necessarily will be) witnesses in the defendant’s case, are also said to reside in NSW, although their exact location was not specified.
The solicitor with carriage of the matter for the defendant deposes to the expert medical witnesses for the defendant not yet being briefed, but the “usual practice” is to engage someone based in NSW. I have inferred from that an intention to do the same in this proceeding.
There are a number of parties and witnesses living or based in NSW. However, there are equally witnesses who are based in the ACT or in the ACT area, being in close proximity to the ACT border. In those circumstances, to find that the NSW Supreme Court was the more appropriate court would be to ignore the practical reality that there are many witnesses for whom attendance at the ACT Supreme Court would be far more convenient, even though they reside in, or are based, in NSW.
The defendant placed reliance on a distinction in the plaintiff’s evidence between witnesses who were likely to be called, and witnesses for the plaintiff who were classed as potential witnesses. That distinction has not transpired to be material in terms of any emphasis or weight. The critical witness in terms of proof of the plaintiff’s case will be the plaintiff himself. Until very recently, he resided in the ACT and he may return by the time the matter is brought on for hearing. He has undertaken the majority of his medical treatment in the ACT or at a medical centre on the ACT/NSW border. Even accepting the uncertainty surrounding the period for which the plaintiff will remain in Brocklesby, the overall circumstances maintain a real and tangible connection to the ACT. As a consequence, I do not accept that this factor favours the NSW Supreme Court as the more appropriate forum.
The defendant initially sought to deal with the convenience of the plaintiff and certain witnesses by submitting that if the matter were transferred to the NSW Supreme Court, it would then apply to have the proceeding remitted to the District Court of NSW, and at that point, the matter could be heard in Queanbeyan. However, the plaintiff argued that the value of the claim far exceeded that of the District Court in NSW and the defendant has ultimately accepted that position for the purposes of this application.
Legal representatives of the parties
The lawyers for the parties are all based in NSW. The defendant’s legal representative submitted that a proceeding in this Court would put the defendant to additional expense, as it would be necessary for the defendant’s legal representatives to travel to the ACT for the ultimate trial and any interlocutory hearings and case management. That submission did not sit comfortably with the defendant’s earlier submission that it would apply to have the proceedings transferred to the NSW District Court and then physically heard in Queanbeyan. There can hardly be any cost saving in travelling to Queanbeyan rather than Canberra.
In any event, as stated above, given the frequency with which parties and their legal representatives now appear in court via telephone or audio-visual means, the location of legal representatives is not in any way determinative on this application. In what is a relatively straightforward claim that does not have any particular requirement for legal representatives to attend in person (such as involving matters of national security), I am not persuaded the defence of the proceedings will cost the defendant more if it continues in this Court. Even if I am wrong about that, it is not something which would overcome other factors, and in particular, the concern about the plaintiff’s condition, discussed below.
The experience of either court and its capacity to provide an efficient trial in a timely manner
It was not submitted by either party that there was any material difference between the experience of either Supreme Court in determining the issues raised by the plaintiff’s claim.
In relation to either court providing an efficient trial in a timely manner, the plaintiff submitted that the ability of this Court to hear the matter earlier was a relevant factor, deposing to the known listing arrangements of this Court and the current listing arrangements in the NSW Supreme Court. The defendant contended that because disclosure processes have not taken place, and neither party has yet served lay or expert evidence, it was not possible that a hearing in 2021 could be achieved in either court.
In my view, the ability of each court to provide an efficient trial in a timely manner is a neutral factor. Evidence about listing dates in various courts is useful, but it is also somewhat variable. Court listings change on a frequent basis for various reasons, including matters settling and changing conditions. In this Court, additional central civil listing blocks may be added or the Court may otherwise have the ability to hear more civil trials if criminal jury trials are unable to proceed for reasons related to addressing the COVID-19 pandemic. Suffice to say that if the matter is ready for hearing in 2021, it may be listed in 2021, including on dates other than those deposed to by the solicitor for the plaintiff.
However, there is no particular urgency about the matter, and there is no suggestion that the resources of either the NSW Supreme Court or this Court are what is presently delaying the hearing of the proceeding. As it currently stands, the matter is not yet ready to take a date. As a result, this consideration is not one that warrants any significant weight in terms of any procedural advantage that might exist in either this Court or the NSW Supreme Court.
Degree of local knowledge required
A related question to “the experience of either court” is whether any local knowledge is relevant to determining the more appropriate jurisdiction. This factor is not material to the present case. No party submitted that there was any degree of local knowledge required, or that any view of the service station would be necessary.
The condition of the plaintiff
What has been determinative is the effect of any transfer on the plaintiff’s present condition. In many cases, a transfer in forum will not have any real impact on a plaintiff’s medical condition. That is not this case.
The summary of the facts pleaded in the claim provide some useful context for understanding the detailed medical evidence adduced in the form of two expert reports from the plaintiff’s independent expert, Mr Borenstein, clinical psychologist, who was then cross-examined.
The medical evidence, which I accept, is that the plaintiff is at risk of harm if he has to travel to the NSW Supreme Court in Sydney for a hearing. Part of Mr Borenstein’s evidence was:
[The plaintiff’s] inability to come to Sydney is the result of severe avoidance symptoms, consistent with those who suffer with chronic and severe PTSD, making it impossible for [the plaintiff] to travel to, and or remain, in Sydney, which would preclude [the plaintiff’s] ability to follow Court proceedings due to an exacerbation of PTSD symptomatology.
Mr Borenstein’s view is that that the treatment of a person with post-traumatic stress disorder requires considerable awareness of what can trigger an exacerbation of symptoms. Sometimes those triggers may be quite broad. The plaintiff is residing in a safe place (as perceived by him psychologically), namely his parents’ home. If he travels to the ACT, that is another safe place for this plaintiff. The risk of a psychological trigger is much reduced. Mr Borenstein’s opinion was that while the plaintiff could travel to NSW, he would be very distressed and would not be in a right state of mind to instruct his legal counsel. That opinion was based on his medical experience with PTSD but also with his first-hand observation of the plaintiff on the one occasion that the plaintiff travelled to Mr Borenstein’s rooms in Sydney.
The consequences of a trigger in the present case are serious. The plaintiff has already been hospitalised recently on two separate occasions, indicating the vulnerability of the plaintiff’s condition and that it has worsened rather than stabilised.
I am mindful that the existence of courtroom technology may mean that the plaintiff does not need to travel to Sydney at all. However, after exploring possibilities with the parties, including the defendant offering to confirm that it would not seek to bring the plaintiff to Sydney for cross-examination if the matter proceeded to a contested hearing, the future conduct of the proceedings is not something that can be mapped out now to a sufficient degree of certainty as to confidently ameliorate the risk of the plaintiff’s psychological state deteriorating due to a change in litigation forum.
Moreover, Senior Counsel for the plaintiff submitted that if there was an opportunity for a face-to-face hearing in the ACT, that would very much be favoured by the plaintiff. The legal representatives for the plaintiff see benefit in the Court having the chance to observe the plaintiff in person, to see the full degree of debility. It was submitted that the full extent of the plaintiff’s condition may not manifest itself through a video screen.
I am mindful that the plaintiff is entitled (if he chooses) to be present in the courtroom for the duration of the proceedings, including to give any immediate instructions required. The defendant’s current estimate of the trial is four to five days, depending on the witnesses and issues ultimately contested. Whether it is realistic that he be there for the duration of the hearing is another matter, but he should at least have the best opportunity to participate.
The plaintiff’s current condition is such that even the prospect of the plaintiff travelling to Sydney to conduct his proceeding in NSW may cause a deterioration in his psychological health. In my view, the state of the plaintiff is determinative in favour of the ACT Supreme Court remaining the more appropriate court. In the particular set of facts and medical circumstances of this case, the order that would “best facilitate the trial of the litigation” is the one that is least likely to trigger an exacerbation of the plaintiff’s symptoms, as that in itself may impact upon the progress of the matter to final hearing.
Conclusion and orders
For the above reasons, I am not satisfied that the NSW Supreme Court is the more appropriate jurisdiction. The state of the plaintiff’s medical condition, combined with the greater convenience for a number of witnesses in the proceedings in hearing the matter in this Court, leads to the conclusion that it is in the interests of justice that the proceedings remain in the forum in which they were commenced.
Accordingly, the Court orders as follows:
(1) The application is dismissed.
(2) The defendant is to pay the plaintiff’s costs of the application, with such costs not to be recovered until the conclusion of the proceeding.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Dominic Page Date: 25 August 2021 |
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