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Supreme Court of Victoria |
Last Updated: 6 October 2021
AT BENDIGO
COMMON LAW DIVISION
CIVIL CIRCUIT
LIST
S ECI 2021 00805
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AHRENS GROUP PTY LTD (ACN 114 260 230)
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Second Defendant
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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PRACTICE AND PROCEDURE – Application to cross-vest the proceeding
to the Supreme Court of New South Wales – Avoid multiplicity
of
proceedings – Supreme Court (General Civil Procedure) Rules 2015
(Vic) – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s
5(2) - Tasmanian Land Company v Van Dairy Group Pty Ltd [2018] VSC 618 -
Beston Parks Management Holding Pty Ltd & Ors v Sexton & Anor
[2008] VSC 95 - BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 -
South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 - Lloyd v
Riverland Regional Health Service Inc. [2010] VSC 350.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Mr M Fogarty
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Arnold Dallas McPherson
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For the First Defendant
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Ms Karvounaris, solicitor
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TurksLegal
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For the Second Defendant
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Mr B W Jellis
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Clyde & Co
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1 The second defendant applies to have
this proceeding transferred to the Supreme Court of New South Wales. The first
defendant supports
the application. The plaintiff opposes the application.
2 For reasons discussed below, I will dismiss the
cross-vesting application.
3 This proceeding commenced on 23 March
2021 by way of writ in the Civil Circuit List
(Bendigo).[1] The plaintiff makes a
personal injury claim against his former employer, the first defendant, and a
manufacturer, the second defendant.[2]
4 The plaintiff’s left leg was amputated below
the knee following a workplace
incident.[3] The plaintiff says this
incident occurred at the first defendant’s premises in Deniliquin, New
South Wales on or about 20
April
2018.[4] He says he was injured when
he was loading a truck with rice, which involved emptying a 35 tonne field bin
of rice into the bin
of his truck by operation of an
auger.[5] The plaintiff says he
entered the field bin after a blockage and was injured as he attempted to climb
out.[6] The plaintiff alleges that
the second defendant manufactured the field
bin.[7] The plaintiff alleges that
his injuries were caused by the negligence of both
defendants.[8]
5 The
second defendant made its application to transfer the proceeding to New South
Wales early in the proceeding.[9] No
substantive steps have been taken in the proceeding since. Both defendants have
filed conditional appearances.
(a) his affidavit sworn on 8 July 2021; and
(b) affidavit of his solicitor, Ms Elizabeth Margaret Davidson affirmed on 9 July 2021 (‘the Davidson affidavit’).
7 The second defendant relies on its solicitor’s affidavits, Mr Morgan Jensen Campbell affirmed 4 June 2021 (‘first Campbell affidavit’) and 20 July 2021 (‘second Campbell affidavit’).
Second defendant’s submissions
8 The second defendant filed written
submissions on 20 July 2021[10]
and its counsel made oral submissions. Key submissions are outlined
below.
9 The proceeding should be transferred for
the following reasons.
10 First, the proceeding
concerns an alleged workplace tort that occurred in New South Wales. The cause
of action arose in New South
Wales.[11] The underlying
proceeding is a personal injury claim involving a workplace accident at the
premises of the first defendant’s
farm in Deniliquin, New South Wales.
The law to be applied is the law of New South Wales. The co-incidence of the
law of the jurisdiction
in which the proceeding will be held, and the law of the
place where the tort was committed will avoid debates concerning substance
and
procedure.[12]
11 Whilst
there is a common law of Australia in the law of tort, this is mediated by a
number of statutes. Here, they include the
Civil Liability Act (NSW) and
New South Wales workers compensation legislation. The plaintiff commenced his
claim by making a workers compensation
claim under the Workers Compensation
Act 1987 (NSW) / Workplace Injury Management and Workers Compensation Act
1998 (NSW).[13] There are
different ways of calculating damages between Victoria and New South Wales, and
that is something that would need to be
navigated. There would be a question of
the applicable cap on economic damages. There could be difficulties regarding
the issues
between the defendants as to rights of indemnity and
contribution.[14] Apportionment
between tortfeasors is a matter of statute.
12 In
addition, the particulars of negligence are directed towards various SafeWork
codes that apply in New South Wales. For instance,
sub-para (m) of the
particulars of negligence against the second defendant in paragraph 13 of the
statement of claim refers to Management of the Risk of Plant, Workplace Code
of Practice 2014 WorkCover
(NSW)[15] and
sub‑para (o) refers to the Safety Aspects in the Design of Bulk
Goods Containers, WorkCover
(NSW).[16]
13 Secondly, the plaintiff resides in New South
Wales.[17] The plaintiff sustained
an injury requiring a prosthesis. Although he lives in New South Wales, the
Supreme Court of Victoria at
Bendigo is much closer than Sydney, which is where
the Supreme Court of New South Wales sits. The second defendant has offered to
pay any reasonable expenses for the plaintiff to attend a trial in
Sydney.[18] The plaintiff points
out the disruption of having to travel to Sydney in the event of a trial. The
plaintiff is back at work.
He acknowledges that he would be away from home for
the trial and this would create difficulty in finding suitable arrangements for
the care of his children. The plaintiff also refers to the difficulty in
travelling to and from Sydney. This cannot be ignored
or put to one side. It
does not, however, rise to the level that there is significant inability to
participate. The plaintiff does
not rely on any medical evidence that would
suggest that he could not participate effectively if the matter was heard in New
South
Wales. There are no life expectancy or extreme mobility issues. Further,
if the trial is listed in Bendigo, that would still be
a 260 km drive from
the plaintiff’s residence.[19]
The plaintiff’s submissions do not address whether there is inconvenience
by him staying away from home for the proceeding
in Bendigo. Moreover, the
question of travelling is somewhat stale given that New South Wales now conducts
proceedings electronically.[20]
Victorian circuit proceedings are heard electronically in light of COVID-19.
This proceeding could be heard electronically in Victoria
or New South
Wales.
14 The plaintiff assumes a trial in Bendigo
will be more convenient than in New South Wales. That is speculative. Borders
between
New South Wales and Victoria can close at short notice in light of
COVID-19. To maintain this proceeding in a State where the alleged
tort did not
occur and where no party resides could give rise to an avoidable
risk.[21] Anything that involves
travelling across borders would be more disruptive than not. If the borders
remained closed, this is something
to which regard must be given. The
applicable test is not to be applied in a disembodied way. It is a nuts and
bolts approach,
taking into account realities. One of those realities is that
the Court can consider the technologies that are available and the
likelihood of
how this proceeding will be heard. This minimises the weight that might
otherwise be given to the physical location
and travel preferences of the
parties and witnesses.
15 Thirdly, the location of
the defendants is not in Victoria. The first defendant, the plaintiff’s
employer, is situated in
New South
Wales.[22] The second defendant is
based in South Australia. The plaintiff refers to the bin involved in the
incident being manufactured in
Victoria. However, where the bin was
manufactured is irrelevant to the pleaded issues in this
case.[23]
16 Fourthly, there are lay witnesses located in
rural New South Wales.
17 Fifthly, the defendants
have retained solicitors in New South Wales because the plaintiff commenced his
claim for workers compensation
in New South
Wales.[24] That claim was mediated
in the Workers Compensation Commission of New South Wales. It did not resolve
and this proceeding ensued.
The defendants’ insurers are located in New
South Wales.
18 Sixthly, the plaintiff’s
solicitor deposes that Prof Ted Dohrmann is retained as an expert witness
and that he is located
in Melbourne. Whether Prof Dohrmann has to either
drive to Bendigo or fly to Sydney does not affect how this case will actually
be
prosecuted.
19 Seventh, the Court is sometimes
interested to know whether the Court that is proposed to receive the transfer
has the ability to
hear the proceeding in a timely manner. Enquiries have been
made. A trial in the Supreme Court of New South Wales can be heard
in a timely
manner.[25]
20 Eighth, defences have not been filed and this
application is made at the earliest possible stage to allow the proceeding to be
transferred.
21 In summary, this is a New South
Wales tort on a New South Wales farm alleging breach of New South Wales law and
standards. The
circumstances of this case are not of such significance to
outweigh the fact that this is a New South Wales case and has no meaningful
connection to Victoria at all.
22 The first defendant relies on written
submissions dated 21 July 2021[26]
and their counsel made oral submissions. Key submissions are outlined
below.
23 The apportionment of liability will be
complicated by consideration of sub‑s 151Z(2) of the Workers
Compensation Act 1987 (NSW).[27]
South West Helicopters Pty Ltd v Stephenson (‘South West
Helicopters’)[28]
addresses sub‑s 151Z(2) of that Act and the employer’s right of
recovery against a joint tortfeasor. The events in question here occurred in
New South
Wales. The rules applicable to loss and damage, apportionment, and
liability are the rules of New South
Wales.[29] If the matter proceeds
in Victoria, this may impact on the recovery of workers compensation payments
under the New South Wales scheme.
24 There is no
connection between the parties to Victoria. The location of the
plaintiff’s solicitor does not weigh as a factor
in keeping the
proceedings in Victoria: Beston Parks Management Holding Pty Ltd & Ors v
Sexton & Anor.[30] In that
case, the majority of the parties resided in South Australia and the proceeding
was transferred there. Here, the plaintiff
and his family reside in New South
Wales, the second defendant resides in New South Wales, and both insurers are in
New South Wales.
25 For completeness, the first
defendant’s solicitor has offices in Melbourne and Sydney. However, the
New South Wales lawyers
have better expertise and experience in defending
matters relating to the laws of New South Wales in the determination of
liability
and apportionment.[31]
26 The plaintiff filed written
submissions on 26 July 2021[32]
and his counsel made oral submissions. Key submissions are outlined
below.
27 The application is opposed on the
following grounds.
28 First, the geographic
advantage of Bendigo makes it a more appropriate location for the trial of this
matter. It is significantly
more convenient than Sydney. The second
defendant’s application is not just to have the matter transferred to the
Supreme
Court of New South Wales, but for it to be heard in Sydney. It is not
an application to have the proceeding heard in New South Wales
at a regional
location close to the plaintiff’s residence and the witnesses. This is an
important consideration when determining
the most appropriate court.
29 Bendigo is significantly closer than Sydney to
the location of the incident, the plaintiff’s residence, where the first
defendant
carries on business, where the plaintiff’s medical witnesses
practice, where the plaintiff’s expert engineer practices
and the
residence of witnesses living in Deniliquin and
Mathoura.[33] The plaintiff says
Bendigo is 132 km away from his residence in
Mathoura.[34] It is 166 km
from the first defendant’s residence. It is 239 km away from the
location of the manufacturer of the field bin.
30 The plaintiff’s general practitioner is
located in Deniliquin. He is the only medical witness located in New South
Wales.
There are five other witnesses and treaters who are located in Victoria.
For the purposes of whole person impairment assessment,
the plaintiff was
examined by a medico-legal specialist in Melbourne on behalf of EML [Employers
Mutual Limited]. Professor Dohrmann,
the expert engineer witness, is located in
Melbourne.
31 Travelling to Sydney would potentially
cause great inconvenience and increased cost for numerous witnesses for travel
and accommodation:
not just the plaintiff’s witnesses, but also the
defendants’ witnesses based in Deniliquin.
32 Secondly, the plaintiff’s solicitors are
based in Bendigo and they have offices in Shepparton and Echuca. The plaintiff
deposes that he chose those solicitors on the basis of their expertise and
proximity of their offices to his home. Unlike the solicitors
for both
defendants, the plaintiff’s solicitors do not have offices in New South
Wales.[35] This is a connecting
factor to be taken into account. On the other hand, the first defendant’s
solicitors, TurkLegal, are
based in Melbourne and
Sydney.
33 Thirdly, the field bin, which is a
subject of the proceeding, was manufactured by the second defendant at a
premises operated in
Tarranyurk,
Victoria.[36] This is another
connecting factor. Whether anything ultimately turns on the design and
manufacture of the bin cannot be decided
at this point. There is little
connecting the second defendant, as an entity, to New South Wales. Its head
office is in South Australia.
34 Fourthly,
transferring the proceeding to Sydney would cause the plaintiff significant
hardship irrespective of the second defendant’s
offer to pay the
reasonable costs for him and his family to attend a hearing in
Sydney.[37] The plaintiff’s
leg has been amputated below the knee and he is suffering from a resultant
mental injury. He is a 33-year-old
man with two children, aged 5 and 12 years
old, who are at school. The plaintiff would need to make arrangements for the
care of
the children during the trial as he would need his partner to be with
him to support him. This would have a dislocating effect on
the plaintiff and
his family. The transfer of the proceeding to Sydney would cause physical
hardship. Whilst the second defendant
has offered to pay the costs, it is not
clear what that actually represents at this stage.
35 Fifthly, there is presently no evidence before
the Court that the defendants would suffer any prejudice if the proceeding
remained
in Bendigo.[38]
36 Sixthly, and in reply to the defendants: the
COVID-19 situation creates uncertainty regardless of where the matter is to be
heard.
The question of delay is a neutral factor in the circumstances here.
There have been two civil circuits in Bendigo in the last
12 months. One has
been held remotely and one in person. The potential of border closure has been
raised. There are border bubbles
in place between certain government shires
from New South Wales to Bendigo. As things currently stand, with proof of
residence,
travel from the plaintiff’s home town to Bendigo would be
permitted. It is not known what the situation will be when the matter
comes on
for trial.[39]
37 Seventh, and in reply to the defendants:
apportionment is a minor factor which should be taken account in this
proceeding. The
apportionment between defendants will be governed by
s 151Z(2) of the Workers Compensation Act 1987 (NSW). In terms of
the New South Wales law being applied, the Supreme Court of Victoria is more
than capable of dealing with any
complexities in this proceeding. The law to be
applied is a minor factor to be considered in comparison to all the other
factors.
38 In conclusion, it is not in dispute
that the plaintiff’s cause of action arose in New South Wales, the law to
be applied
is the law of New South Wales, the plaintiff lives in New South Wales
and the first defendant is based there. However, this combination
of factors is
not necessarily determinative of the issue of the appropriate
Court.[40] There are other factors
to be considered. As discussed above, the personal circumstances of the
plaintiff should be taken into
account. Transferring the proceeding to Sydney
would cause the plaintiff undue hardship.
39 On the
basis of all evidence before the Court, it is not in the interests of justice to
have the proceeding transferred. Bendigo
is the more appropriate forum.
40 The applicable principles are
agreed.
41 Section 5(2) of the Jurisdiction
of Courts (Cross-vesting) Act 1987 (Vic) follows:
(2) Where–
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and
(b) it appears to the first court that–
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;
(ii) having regard to–
(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;
(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C) the interests of justice–
it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court.
42 In Tasmanian Land Company v Van Dairy Group Pty Ltd,[41] Kennedy J set out the authorities as follows:
In the High Court case of BHP Billiton Ltd v Schultz (Schultz), the Court highlighted that the cross-vesting legislation requires a court to ensure that cases are heard in the forum dictated by the interests of justice. No question of discretion arises. Rather, the court is required to consider which forum is the ‘natural forum’ on the basis of a consideration of relevant ‘connecting factors’, which do not include the plaintiff’s choice of forum.
In Irwin v State of Queensland (Irwin), a decision of Robson J of the Supreme Court of Victoria, his Honour considered the decision of Schultz as well as a decision of Gillard J in Ewins v BHP Billiton Ltd. His Honour then helpfully set out the relevant principles, which include:
(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.
(b) It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.
(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.
(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.
(e) The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.
(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. 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 rather than the court of where the proceeding has been issued. 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.
(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.
(h) The appropriate court is the natural forum as determined by connecting factors to that forum.
(i) Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.
(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.
...
(o) The plaintiff’s choice of forum by itself is not a relevant connecting factor.
(p) Each case depends on its own particular facts.[42]
...
43 There are a number of authorities
which the parties addressed and it is necessary to briefly address some of those
authorities.
44 The proceeding in Beston
Parks had commenced in the Commercial List of this Court. It concerned an
agreement between plaintiff companies and the defendants (two
of the
plaintiffs’ former executives). In Beston Parks, the first
plaintiff was incorporated in Victoria. The second and third plaintiffs were
incorporated in South Australia. All plaintiffs
had their registered offices
and principal place of business in South Australia. The plaintiffs’
directors resided in the
Australian Capital Territory and New South Wales. The
defendants lived in Adelaide. The parties submitted the location of their
solicitors was relevant. The plaintiffs had retained a national law firm, but
it did not have an Adelaide office, and the solicitor
with the file worked in
the firm’s Melbourne office. Accordingly, if the proceeding were
transferred to South Australia, Adelaide
agents would need to be engaged. The
defendants had retained a South Australian law firm and it had engaged Victorian
agents. Hollingworth
J held that the location of the individual solicitors
acting in the proceeding was a “neutral
factor”.[43] Her Honour held
that each side would continue to use their current solicitors and one side would
need to retain a local agent.
Neither had led evidence that it “would
cause serious inconvenience or prevent them from properly conducting the
proceeding”.[44] Moreover,
interstate travel was less costly and difficult than it once
was.[45] (This proceeding was prior
to the COVID-19 pandemic.) Hollingworth J
held:[46]
I am satisfied that South Australia is the more appropriate forum, for a number of reasons. The parties are essentially South Australian parties. The events in question largely occurred in Adelaide. The proceeding is based on a contract, under which the parties have agreed to submit to the jurisdiction of the South Australian courts. There is little to connect the proceeding with Victoria. The proceeding is at a very early stage and the defendants have not delayed in making the application. There is no reason to believe the Supreme Court of South Australia would not be able to manage and determine this proceeding with reasonable expedition.
45 In BHP Billiton Limited v Schultz (‘Schultz’)[47] the High Court referred to its earlier decision in John Pfeiffer Pty Limited v Rogerson[48] noting it:
... involved an action brought in the Supreme Court of the Australian Capital Territory, against a company which had its principal place of business in the territory, for damages for personal injury arising out of a work-related accident in New South Wales. No one suggested that the Australian Capital Territory was an in appropriate forum. The decision of this Court established that the law governing the quantum of damages, which was treated as a matter of substance, was the lex loci delicti, the law of New South Wales.[49]
46 In Schultz, the High Court observed that there was nothing unusual about actions between residents of different Australian law areas. Reference was made to earlier English authority concerning consideration of connecting factors as “legion” and the difficulty of finding “clear guidance as to how they are to be weighted” in a particular case:[50]
...Thus, New South Wales might well be the “natural forum” for an action for damages brought by a passenger in a motor vehicle against the driver if they were both residents of New South Wales, even though the injury resulted from a collision that occurred on the other side of the Queensland or Victorian border.
In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.[51]
...The question is where the interests of justice lie. If, in a particular respect, the first respondent’s assumed advantage and the appellant’s assumed disadvantage are commensurate, the one simply being the converse of the other, then that does not advance the matter. The scales are inappropriately weighted in favour of a plaintiff if a possibility of what might ultimately turn out to be a higher total award of damages is treated as a consideration of justice which argues against transfer and if, in addition, the plaintiff's choice of venue is treated as a matter not lightly to be overridden.[52]
48 In Schultz, the High Court referred to Broken Hill Proprietary Company Ltd v Zunic & Ors (‘Zunic’).[53] It described the circumstances in Zunic, being an elderly plaintiff with a short life expectancy.[54] Sully J dismissed a cross-vesting application finding, amongst other things, that the proceeding should remain in the Dust Diseases Tribunal of New South Wales where there would be a more expeditious hearing. The High Court noted it was:
... entirely appropriate ... to take into account the plaintiff’s short life expectancy, and the prospect of expedition in the Tribunal. There are cases in which justice may dictate that the interest of one party be given weight. ... [55]
49 In Lloyd, Emerton J (as her Honour then was) dismissed an application for a medical negligence claim to be transferred to South Australia. The proceeding was initiated in this Court at Mildura. The place of the alleged tort was South Australia, and the defendant contended that it was fundamental to determining where it ought to be heard. The plaintiff, who lived in Renmark at the time, and had planned to move shortly to southern New South Wales, submitted that one of the reasons the proceeding should remain in Victoria was because of the geographic advantage of Mildura. The circumstances were as follows:
... Mildura is the closest Supreme Court to the place where the plaintiff’s injuries occurred, to where the defendant carries on its business, to where the plaintiff will be living at the time of the trial and to where many, if not most, of the witnesses live and work.[56]
The fact that South Australian law will apply at trial is plainly an important consideration.
However, the answer must lie in the overall justice of the situation and each case must be considered on its merits. The evidence before me was that after some difficulty, the plaintiff has succeeded in finding a solicitor in a regional centre near to where she lives and near to where the tort was committed who is prepared to assist her on a no win-no fee basis. This solicitor is doing his best to ensure that she has the benefit of funds to pay for disbursements through the Law Aid scheme and to have the matter listed for hearing in the next civil circuit in 2011. This is an important factor, because it has enabled the plaintiff to bring her cause of action. Having regard to this factor does not involve any presumption in favour of the plaintiff’s choice of forum; 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.
It is true that the only direct connection to Victoria is the plaintiff’s solicitor. However, it plainly makes geographical sense for the trial to take place in Mildura. ...
Although I have no doubt that the Supreme Court of South Australia would be able to hear the plaintiff’s case expeditiously and efficiently, and the plaintiff may be able to obtain financial assistance from the relevant South Australian scheme to assist her with the litigation, the requirement to transfer the proceedings to Adelaide introduces a real element of uncertainty for the plaintiff. It is uncertain whether her solicitor would be prepared to act for her in Adelaide; her prospects of obtaining financial assistance for litigation in South Australia are equally uncertain. She may well be discouraged from prosecuting her cause of action if she has to start afresh to secure the assistance that she needs.
The fact that the relevant laws are the laws of South Australia should be no barrier to the proper administration of justice in this case. Judges of the Supreme Court of Victoria are practised in applying the laws of other jurisdictions, including South Australia.[57]
51 South West Helicopters
concerned appeals from workers compensation and contribution proceedings
following the death of three men in a helicopter crash.
The helicopter crashed
after striking a powerline owned by Essential Energy. The three men were aboard
the helicopter because South
West Helicopters Pty Ltd (‘South West’)
had been engaged by Parkes Shire Council (‘Council’) to conduct an
aerial survey. Two men, Ian Stephenson and Malcolm Buerckner, were Council
employees and they were to conduct the aerial survey.
The third man, Shane
Thrupp, the pilot, was an employee of South West. Following their deaths, there
were workers compensation
claims made by dependents and other legal proceedings.
Mr Stephenson’s wife, son, and daughter brought proceedings against
South West and the Council for nervous shock. Essential Energy was joined in
each proceeding. Relevantly for the defendants’
submissions here, the
Council brought legal proceedings against South West, seeking to recover workers
compensation payments made
to the families of Mr Stephenson and Mr Buerckner.
South West then made cross-claims against the Council and Essential Energy.
Essential Energy then made a cross-claim against the Council. There were also
other proceedings regarding damages for the loss of
the helicopter.
52 Pausing there, the circumstances are entirely
different to here. The report of the appeal proceeding indicates the trial
occurred
over a period of three weeks and resulted in four judgments. The
appeal proceeding involved consideration of both New South Wales
and federal
law, including aviation law. The appeal also involved consideration of
s 151Z of the Workers Compensation Act 1987 (NSW). The Court of
Appeal held:
There are two provisions in the Workers Compensation Act which were potentially relevant to recovery by Parkes Shire Council. They must be considered separately. The first is s 151Z(1)(d) which, in its statutory context, reads as follows:
151Z Recovery against both employer and stranger
(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:
(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,
...
(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),
...
The claim could not succeed under this provision as the equivalent of this provision in the Workers Compensation Act 1926 (NSW), namely s 64(1)(b), has long since been held by the High Court not to confer a right of indemnity in circumstances where the employer is a tortfeasor, but only in circumstances where the third party is the only relevant tortfeasor.
The second reason why the trial judge considered that the constraint in s 151Z(1) did not apply was that an employer which was itself a tortfeasor was now able to recover compensation payments under s 151Z(1)(d) pursuant to s 151Z(2)(e). That conclusion was correct; however, the entitlement arose under, and only under the terms of the latter provision; it was wrong to treat the later provision as amending the earlier provision. Accordingly, if the Shire Council were to recover its compensation payments, on the assumption that it was a tortfeasor, it had to bring its claim within the terms of s 151Z(2)(e). The precise requirements of that provision were not addressed.
Section 151Z(2)(e), in its statutory context, provides as follows:
151Z Recovery against both employer and stranger
...
(2) If, in respect of an injury to a worker for which compensation is payable under this Act:
(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,
...
(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:
(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and
(ii) if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.
In order for Parkes Shire Council, as a tortfeasor, to obtain the indemnity provided under subs (1)(d), the preconditions to the operation of par (2)(e) must be satisfied. As Mrs Stephenson did take proceedings against the Council, the first limb was not satisfied; as she has also obtained satisfaction of the judgment against the Council, the second limb was not satisfied. Accordingly, Parkes Shire Council is not entitled to recover payments of compensation from another tortfeasor.
... the purpose is not obscure; it is that an employer which is also a tortfeasor is not able to recover compensation from another tortfeasor where it has made a payment of damages to the worker. Where the worker does not take proceedings or does not accept satisfaction of a judgment obtained in such proceedings, no payment will have been made. Where the worker sues his or her employer, the proceedings will either succeed or fail. If they fail, that will be because the employer is not liable and s 151Z(1)(d) will apply. If they succeed, the worker will be awarded damages. The reason why the drafter may have thought it appropriate to exclude recovery from the third party tortfeasor in such circumstances is that the employer which is liable to pay damages will deduct the amount of compensation already paid from the award of damages, pursuant to s 151A. In fact, as the orders in the present case demonstrate, that is precisely what happened. Further, the worker who recovers damages will cease to be entitled to any further compensation, again pursuant to s 151A.[58]
53 There are factors connecting the
proceeding both to Victoria, and New South Wales, and, to a much lesser extent
South Australia.
There is not a preponderance of factors in favour of New South
Wales. There are significant factors connecting the proceeding to
Victoria. It
is the more appropriate forum. Taking a ‘nuts and bolts’ approach,
the interests of justice dictate that
the proceeding should remain in Victoria
for the following reasons.
54 First, I accept the
plaintiff’s evidence about his difficulties travelling long distances or
for long periods alone.[59] There
is no contradictory evidence. I accept his evidence that it would cause him
physical and family hardship if the proceeding
were transferred to Sydney. He
would need to either drive to Sydney (745 km away) or drive to Bendigo or
Melbourne to then fly to
Sydney. I accept his evidence that due to his injury
he is now only able to drive for up to two hours and then he needs a break,
and
that he avoids travelling long distances or long periods alone. I accept his
evidence about the difficult impact on family arrangements
if the trial was in
Sydney. I reject the defendants’ submissions that something more is
required from the plaintiff, that
is, some proof that he could not participate
in a trial in Sydney. The interests of justice do not impose such a threshold.
Practical
realities can and should be taken into
account.
55 Secondly, the defendants seek to move
the proceeding to Sydney in circumstances where it makes geographical sense for
the proceeding
to remain in the Supreme Court at Bendigo. It is the closest
Supreme Court to the plaintiff, lay witnesses, and the place of the
alleged
tort. Transferring the proceeding to Sydney is likely to cause inconvenience
and increased costs for most witnesses.
56 All but
one of the plaintiff’s medical witnesses are in Victoria. Although the
incident occurred in New South Wales, immediately
afterwards, the plaintiff was
given emergency treatment in Deniliquin Hospital (New South Wales) but was then
transferred by air
ambulance to The Royal Melbourne Hospital. It was at The
Royal Melbourne Hospital that he underwent surgery. He was then transferred
to
the Epworth (Melbourne) for rehabilitation. Since then, the plaintiff has been
required to attend The Royal Melbourne Hospital
for review of his injury.
57 For the purpose of preparing the
plaintiff’s case, he has been examined for medico‑legal purposes by
five medical specialists
based in Melbourne: a rehabilitation surgeon, a
psychiatrist, a plastic surgeon, an occupational physician, and an orthopaedic
surgeon.[60] For the purposes of
his permanent impairment claim made pursuant to the Workers Compensation Act
1987 (NSW), he was examined by medico‑legal specialists in
Melbourne.[61]
58 All
of the plaintiff’s treating health practitioners are in regional Victoria,
save for his general practitioner, Dr Magee,
in Deniliquin. His treating
practitioners include Mr Fleming a prosthetist who he consults at Echuca or
Bendigo, Mr Rengasamy, an
orthopaedic surgeon in Shepparton, and Ms McCann,
a psychologist in Echuca.
59 Additionally, the
plaintiff’s expert engineer witness resides in Victoria
(Melbourne).
60 As discussed above, although the
plaintiff resides in New South Wales, he resides far from Sydney, as do any lay
witnesses residing
in his home town, Mathoura, or Deniliquin. Mathoura is
approximately 132 km from Bendigo. Deniliquin is approximately 166 km north
of
Bendigo.[62] Accordingly, Bendigo
is much closer than Sydney for the plaintiff and the lay witnesses. There is
likely to be greater expense
incurred by requiring the witnesses travel to
Sydney rather than Bendigo. Given the proximity of Bendigo, it is more likely
to be
a day trip in comparison to the trip to Sydney which will require either
driving and staying overnight, or otherwise flying. (The
defendants’
offer to reimburse the plaintiff does not extend to reimbursement of travel
costs of witnesses.) There is no evidence
of any witnesses residing in Sydney.
61 The defendants are corporate entities. The
second defendant is not based in New South Wales, but in South
Australia.[63] The first defendant
is based in Deniliquin, New South Wales. There is no evidence that they would
be inconvenienced by the proceeding
remaining in Bendigo.
62 It has not been submitted that a view of the
site of incident (Deniliquin, New South Wales), or the place where the bin was
manufactured
(Tarranyurk, Victoria) is required. However, if that were the
case, it would be a day trip from
Bendigo.
63 Thirdly, the plaintiff’s
solicitors are in Victoria, and he has attended appointments at their offices in
Bendigo and Echuca.
They do not have an office in Sydney. On the other hand,
although the defendants’ solicitors and insurers are based in Sydney,
they
have offices in Melbourne.
64 Fourthly, and
importantly, the incident occurred at Deniliquin, New South Wales. This is a
common law claim and “there is
a single common law of
Australia”.[64] The Supreme
Courts of Victoria and New South Wales both have significant expertise and
experience in determining common law claims.
65 The plaintiff made a workers compensation claim
in New South Wales. However, it has not been suggested that there is any
statutory
impediment to him bringing a common law proceeding
now.
66 The defendants placed great emphasis on
substantive New South Wales law applying, including the Civil Liability Act
2002 (NSW), Work Health and Safety Act 2001 (NSW), Work Health and
Safety Regulation 2017 (NSW), and workers compensation legislation, in
particular s 151Z of the Workers Compensation Act 1987 (NSW). These
are substantive laws. There was no detailed submission as to the application of
the Civil Liability Act 2002 (NSW). As to the application of s 151Z of
the Workers Compensation Act 1987 (NSW), there was no evidence from the
defendants of instructions to commence indemnity or contribution proceedings.
However, for
present purposes, I accept that such proceedings are on the
cards. It was not suggested that there will be any forensic or juridical
advantage of one defendant over another by the proceeding remaining in Victoria.
Nor could that be so, given this Court would apply
any applicable New South
Wales law to the assessment of damages. This is not a case where there is a
question of whether Victorian
or New South Wales law would apply. It is a
matter of substance, not procedure. The highest that the defendants’
submission
reached was that the Supreme Court of New South Wales will have more
expertise and experience in applying such provisions. I accept
that. However,
I do not consider that to be determinative of this application. The same
analysis applies to the extent that the
Civil Liability Act 2002 (NSW) is
applicable. Finally, in respect of Work Health & Safety Act 2011
(NSW) and the Work Health & Safety Regulations 2017 (NSW): there is
no claim for statutory breach. The reference to the legislation is made in the
particulars of negligence. (No separate
claim for statutory breach is
made.)
67 Finally, both parties made submissions
regarding the COVID-19 pandemic and the effect of health directives on the
restriction of
movement. This situation is fluid. Both superior courts have
facilities for electronic hearing if needs be. I assess it neutrally.
I do note however that the Court (Common Law Division) will sit in Bendigo
on 18 October 2021, 15 March 2022 and 3 October 2022.
68 The second defendant’s application will be dismissed. This proceeding will be listed for directions hearing and for trial in Bendigo. I will give parties the opportunity to confer and make submissions as to the orders consequential to this application.
[1] Generally indorsed writ filed on 23 March 2021.
[2] Statement of claim filed on 8 April 2021.
[3] Ibid.
[4] Ibid [4].
[5] Ibid.
[6] Ibid [5].
[7] Ibid [6].
[8] Ibid [13].
[9] Summons filed on 24 June 2021.
[10] Outline of written submissions filed on behalf of the second defendant on 20 July 2021.
[11] Ibid [19].
[12] Ibid [22].
[13] Ibid [21(a)].
[14] Reference was made to the first defendant’s submissions, [8], and authorities therein. Discussed further below.
[15] The Court presumes this is a reference to Managing the Risks of Plant in the Workplace, Workplace Code of Practice 2014 WorkCover (NSW).
[16] The Court presumes this is a reference to Safety Aspects in the Design of Bulk Goods Containers Including Silos, Field Bins and Chaser Bins, Code of Practice, WorkCover (NSW).
[17] Outline of written submissions filed on behalf of the second defendant on 20 July 2021 [20].
[18] Ibid [25].
[19] Ibid [24].
[20] Ibid [26].
[21] Ibid [27].
[22] Ibid [15].
[23] Ibid [16].
[24] Ibid [21].
[25] Exhibit ‘MJC-6’ to the second Campbell affidavit.
[26] Outline of written submissions filed on behalf of the second defendant on 29 July 2021.
[27] Ibid [8].
[29] Ibid [4].
[30] [2008] VSC 95 (per Hollingworth J) (‘Beston Parks’).
[31] Outline of written submissions filed on behalf of the second defendant on 29 July 2021 [7].
[32] Outline of written submissions filed on behalf of the plaintiff on 26 July 2021.
[33] Ibid [7(i)].
[34] Davidson affidavit [15].
[35] Outline of written submissions filed on behalf of the plaintiff on 26 July 2021 [7(ii)].
[36] Ibid [7(iii)].
[37] Affidavit of Jethro James Baker affirmed 8 July 2021 (‘Plaintiff affidavit’) [13]-[14].
[38] Outline of written submissions filed on behalf of the plaintiff on 26 July 2021 [7(vii)].
[39] Ibid [7(ix)].
[40] Lloyd v Riverland Regional Health Service Inc. [2010] VSC 350 (‘Lloyd’) per Emerton J.
[42] Ibid [36]–[37] (citations omitted).
[43] Ibid [34].
[44] Ibid [32].
[45] Ibid [33].
[46] Beston Parks [54].
[47] [2004] HCA 61; (2004) 221 CLR 400.
[48] [2000] HCA 36; (2000) 203 CLR 503.
[49] Schultz [17].
[50] Ibid [18].
[51] Ibid [18]-[19].
[52] Ibid [26].
[54] Schultz [23].
[55] Ibid [27].
[56] Lloyd [16].
[57] Ibid [23]-[25], [27]-[28].
[58] South West Helicopters [169]-[170], [173]-[174], [177], [182] (citations omitted).
[59] Plaintiff affidavit [10].
[60] Davidson affidavit [8].
[61] Davidson affidavit [10].
[62] Davidson affidavit [5].
[63] Davidson affidavit [6].
[64] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; [2000] 203 CLR 503 at 518.
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