Whitelum v The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland

1. [1]

   Before the Court is an application to transfer the proceedings in this matter from the Supreme Court of New South Wales (“NSW”) to the Supreme Court of Queensland (“Queensland Court”), pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (“the Act”).

2. [2]

   By way of brief background, the Statement of Claim filed on behalf of the plaintiff, Shirley Anne Whitelum, on 18 October 2016, seeks damages in negligence for alleged physical and sexual abuse perpetrated whilst Ms Whitelum was a resident at the St Vincent’s Residential Care Facility (“St Vincent’s”) in Nudgee, Queensland, between about 11 March 1955 and 6 February 1965. Ms Whitelum was born in July 1951. The Statement of Claim seeks damages under the principles of vicarious liability. The defendant is the owner and operator of St Vincent’s. The physical and sexual abuse is alleged to have been perpetrated principally by Sister Gregory, by other Sisters, and other residents at the facility.

3. [3]

   The Motion currently before the Court was filed by the applicant/defendant (hereinafter referred to as the defendant) on 24 January 2017, seeking the proceedings to be transferred to the Queensland Court. Ms Whitelum opposes the application.

Evidence and Submissions

1. [4]

   The defendant relies on three Affidavits sworn by Laurence Matthew Rogencamp as evidence for the application. The Affidavit of Mr Rogencamp sworn 19 January 2017 provides that Mr Rogencamp is principal of the law firm acting as legal counsel for the defendant and that his firm has, since 1998, responded to, and settled, approximately 130 similar claims relating to St Vincent’s Orphanage, Nudgee for the period between 1940 to 1975, the bulk of which relate to the 1950s and 1960s. The same firm, at the time of swearing the Affidavit, was responding to 51 active proceedings in relation to St Vincent’s Orphanage, Nudgee. Mr Rogencamp attests to the fact that the business location of the defendant, and the location of the records of the defendant, is Brisbane, and that the trustees of the defendant all live and work in Brisbane.

2. [5]

   Mr Rogencamp indicates that his law firm, having conducted enquiries into the persons named in the statement of claim, had been, at the time of swearing the Affidavit, unable to locate any living witnesses either employed by the defendant during the relevant period, or with personal experiences of the events that are the subject of the allegations.

3. [6]

   A further Affidavit of Mr Rogencamp is relied on by the defendant, sworn 20 March 2017 and filed 22 March 2017. The Affidavit refers to the letter at Annexure G to the Jason Parkinson Affidavit and states that from the date of that letter, the position of the defendant in relation to potential negotiations was that further information, including additional evidence, particulars or submissions with respect to available evidence, was required before meaningful negotiations might be entered into.

4. [7]

   Mr Rogencamp provides that if the proceedings are transferred to the Queensland Court, the defendant undertakes not to raise any procedural points under the Personal Injury Proceedings Act 2002 (Qld) (“PIPA”) and further, to pay for the reasonable expenses of the plaintiff and her legal representatives to attend negotiation discussions.

5. [8]

   The defendant, at hearing, outlined the common ground, or agreement, between the two parties, being that Ms Whitelum resides in NSW; that the alleged conduct occurred in Queensland; that the substantive law that is to be applied is that of Queensland; and that the defendant, at the stage of the hearing, had been unable to locate any living witnesses employed by the defendant at that time.

6. [9]

   There remain a number of issues of contention between the parties. The defendant maintains that the matter is not well advanced within the NSW court system, and, despite agreement that the correct entity has been sued, the defendant maintains that in relation to the conduct (which is said to have occurred in another orphanage) that orphanage is a distinct legal entity. The defendant also does not agree that the defendant ever operated outside of Queensland.

7. [10]

   The defendant does not agree with the characterisation made by the plaintiff that the letter of 9 May, which was sent by Mr Rogencamp to Porters Lawyers (Annexure G to the Affidavit of Jason Dean Parkinson affirmed 9 February 2017), implies that the matter will need to be litigated. The defendant submitted that the letter states that the matter “may” need to be litigated and that the defendant is open to the usual mediation as the matter doesn’t necessarily need to be litigated to completion.

8. [11]

   The defendant submitted that, in relation to mediation, the provisions in PIPA are an important factor for the Court to consider. The defendant further submitted that the point raised by the plaintiff that the matter is likely to be litigated in relation to the possible issues of credibility, has been “over-aired”.

9. [12]

   The letter itself refers to the fact that this claim is the only claim of female to female sexual abuse and that there is no one alive who can verify the claims. It goes on to say that:

10. [13]

    Although the defendant does not have any medical evidence or a defence yet prepared, it is submitted that the defendant has not yet attended to this because it is still not clear where the proceedings are to be held.

11. [14]

    The following undertakings or concessions were made by the defendant, should the matter be transferred to the Queensland Court. The defendant undertook that it will not raise any procedural points under PIPA, which would prevent Ms Whitelum in maintaining the proceedings, and that the defendant will pay all reasonable costs of the plaintiff and her legal representatives to attend Queensland for the compulsory pre-litigation proceedings under PIPA if the matter is transferred. Further, the defendant submitted that the Court should strongly consider that compulsory pre-litigation proceedings would occur under PIPA, noting the importance of attempting the resolve the proceedings on this basis rather than litigate, especially given the psychiatric injury to Ms Whitelum.

12. [15]

    The defendant conceded that although Ms Whitelum has claimed and received benefits under the redress scheme operating for victims of sexual abuse, this does not impact on her rights in respect of these proceedings. Yet, the defendant says, it is a factor that the Court can take into account.

13. [16]

    In consideration of the relevant factors, the defendant submitted that the proceedings should be transferred, because the alleged conduct occurred in Queensland, and no other state, and the Court will be required to apply the law of Queensland. The defendant submitted that the proceedings are not at an advanced stage in the Supreme Court of NSW and that both the defendant’s business and records are carried out and located in Queensland.

14. [17]

    Further, if any witnesses are able to be located, the defendant submitted that it is likely that they will be residing in Queensland. The defendant submitted that it is not known where the sister of Ms Whitelum, a likely witness, currently lives, and that there is nothing to say that Dr Phillips (a NSW resident and author of a medical report relied on by the plaintiff) will give evidence.

15. [18]

    It was also submitted that the only connection that the matter has with NSW is that Ms Whitelum resides there (Central Coast), and that she is reluctant to go back to Queensland. The place of residence of the defendant is Queensland.

16. [19]

    The Court raised doubts regarding the strength of this latter factor, given that the defendant is a business and whether it would be any more difficult for it, were the matter heard in NSW. The defendant also submitted that the fact that Ms Whitelum resides in NSW and has a reluctance to travel to Queensland can be overcome with technology, such as video links, if necessary.

17. [20]

    The defendant submitted that the impact of the hearing on Ms Whitelum, in her capacity as a carer for Ms Stevens, would be the same whether the hearing is in NSW or Queensland.

18. [21]

    A relevant consideration for the Court to consider, the defendant submitted, is the fact that the matter is a personal injury matter, in which the plaintiff has suffered psychiatric injury, and that the matter should be resolved as quickly as possible, despite the fact that the condition is not life threatening. The defendant submitted, however, that if Ms Whitelum’s mental health is to be impacted by attending the hearing in Queensland, this factor would need to be supported by medical evidence.

19. [22]

    In submitting that the “most appropriate forum” for the matter to be heard is the Queensland Court, the defendant made reference to the medical evidence so far provided by the plaintiff, being the report of Dr Jonathon Phillips, having been prepared in accordance with the rules of Uniform Civil Procedure Rules 1999 (Qld).

20. [23]

    The plaintiff relies on an Affidavit of Shirley Anne Whitelum affirmed on 3 February 2017 and filed on 13 February 2017, outlining the background of abuse that is claimed in the proceedings and the ongoing impact she suffers in her life, including in her employment and mental health. Ms Whitelum’s Affidavit annexes an ‘Application for payment under the Redress Scheme for former residents of Queensland’s children’s institutions’ which was received by the Department of Communities on 20 December 2007, as well as a report of Psychiatrist Jonathan Phillips dated 30 November 2016, having assessed Ms Whitelum on 28 June 2016. It is unnecessary to go into any great detail about the abuse alleged by Ms Whitelum, except to say that there is no doubt that the alleged circumstance of abuse identified by Ms Whitelum and the ongoing impact described are horrific.

21. [24]

    The plaintiff also relies on an Affidavit of Jason Dean Parkinson, affirmed on 9 February 2017 and filed on 13 February 2017, which, amongst other things, refers to several other claims for which the plaintiff’s firm has received instructions against the defendant for alleged abuse at St Vincent’s from 1955 to 1965.

22. [25]

    A report has been prepared by Dr Phillips and provides detail of the ongoing impact of the alleged conduct, such as:

23. [26]

    Dr Phillips found that Ms Whitelum is suffering from a number of conditions as a result of the reported abuse at St Vincent’s:

24. [27]

    Dr Phillips continues to say:

25. [28]

    Ms Whitelum, in her Affidavit, outlines her concern in returning to Queensland if the matter were to be transferred:

26. [29]

    It is submitted by the plaintiff that the moving party bears at least a persuasive onus of demonstrating that it is more appropriate that the matter is heard in the other Court: Lend Lease Property Management and Construction Pty Ltd [2011] NSWSC 739 at [11] and [14] per Einstein J. The plaintiff also relied on the decision of British American Tobacco Australia Ltd v Pete Gorgon [2007] NSWCA 230 per Brereton J at [44] in relation to the relevant factors to be taken into account, including cost and efficiency of proceedings and what have been described as “connecting factors” including convenience and expense, which consists of availability of witnesses and where the parties carry on their business. In relation to the location of documents, the plaintiff submitted that this has no real bearing on the matter, given that documents, or copies thereof, are readily transportable in the present-day.

27. [30]

    It is submitted that although the defendant makes reference to the number of claims responded to by his firm concerning allegations against St Vincent’s and many other current claims, Mr Rogencamp has been unable to locate anyone who could potentially be a witness for the defendant in the proceedings brought by Ms Whitelum. Further, the plaintiff asked the Court to note that the undertaking made by the defendant, in relation to meeting the reasonable expenses of Ms Whitelum and her legal representatives, is limited to “the purposes of attending compulsory pre-litigation procedures”.

28. [31]

    The plaintiff also relies on the Affidavit of Ms Whitelum, which provides details of some of the abuse to which she was subjected, such as:

29. [32]

    The plaintiff provides details of Ms Whitelum’s current living arrangements, noting that she lives in the premises of, and is the sole carer for, Ms Stevens on the NSW Central Coast, there being no other family able to care for Ms Stevens. Ms Whitelum receives medical, including psychological, support and treatment. It is submitted that given the circumstances, it would be most difficult for Ms Whitelum to travel to Queensland, and for such time, Ms Stevens would not have someone to care for her. It is submitted that Ms Whitelum also does not have the means to fund her travel and accommodation and is effectively penniless: see Western Australia v Duncan [2011] NSWSC 1320 at [10]-[16] and Kellow v Irish Murphy’s Pty Ltd [2010] VSC 239 at [20]. It is also submitted that additional expenses are expected should the matter be transferred to the Queensland Court.

30. [33]

    At the time of hearing the notice of motion, the defendant had not filed a defence, nor requested particulars. Nor had they required Ms Whitelum to be medically assessed. The plaintiff submitted that, if the matter were to be transferred to Queensland, further delay would occur whilst PIPA requirements are satisfied and that the timely disposition of any matter is something central to the interests of justice. It is further submitted that requests have been made to the defendant for any documentation in relation to the allegations and no such documentation has been produced.

31. [34]

    It is submitted on the basis of Dr Phillips’ report that Ms Whitelum’s mental health will be materially and adversely affected should she be required to travel to Queensland, particularly for the hearing of this matter, given the subject material and her memories of Queensland. The plaintiff submitted that this is a powerful feature that should be given significant weight in the application and that it would not be in the interests of justice to make an order that would likely or probably have an adverse impact on a party’s health.

32. [35]

    Notably, the plaintiff makes reference to the concern and fear that Ms Whitelum has in returning to Queensland:

33. [36]

    The plaintiff referred to the case of O’Donnell v Nage Holdings Pty Ltd [2013] VSC 115 within which Lloyd v Riverland Regional Health Service Inc [2010] VSC 350 was cited:

34. [37]

    The plaintiff submitted that despite the substantive law of Queensland being applied, it is similar law to the law applied in NSW. Further, there is nothing peculiar about Queensland law that is to be applied.

35. [38]

    In relation to the convenience of witnesses, the plaintiff submitted that there are (or were, at the time of the hearing), no Queensland residents identified as witnesses to give evidence and a number of NSW based witnesses that are likely to be called, such as the plaintiff, Dr Phillips and Ms Whitelum’s sister. The plaintiff further submitted that it is likely to be a contested hearing and issues of credibility generally, may arise, meaning that most witnesses would need to give evidence in person.

36. [39]

    The plaintiff submitted that this Court has the power to order the parties to mediation, rather than relying on transferring the matter to Queensland for that purpose.

37. [40]

    In relation to costs, there is a risk of non-recoverable costs, if the matter were to go to the Queensland Court and Ms Whitelum may be unable to meet the expenses of travelling to Queensland to continue the claim. There is also the aspect of the arrangement with her current legal representative, which, at this juncture, is not available in Queensland.

Principles to be applied

1. [41]

   Section 5(2)(b)(iii) of the Act reads as follows:

2. [42]

   I dealt with the issue of cross-vesting in Skandar (aka Makari) v BSM Group Pty Ltd (as trustee for the BSM Discretionary Trust) [2017] NSWSC 610, within which I set out the following:

3. [43]

   The defendant provided the Court with the relevant principles to be applied as identified by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, from which the defendant outlined the relevant factors as:

   1. (1)

      The place of the tort;

   2. (2)

      The residence of the parties, or in the case of a corporation, where it carries on its business;

   3. (3)

      The convenience of the parties or witnesses;

   4. (4)

      The law governing the proceedings;

   5. (5)

      The experience of a court to provide an efficient and speedy trial; and

   6. (6)

      The condition of the parties in personal injury cases such as if the parties’ life expectancy requires speedy resolution. (Defendant’s written submissions, par 9).

Consideration/application of the principles

1. [44]

   It is the task of the Court to determine where the interest of justice lies in relation to this application. Cases considering the provisions are instructive, but depend on the individual facts and circumstances of each case. It is the principles and factors already outlined, which must be considered in order to determine the most appropriate place according to the interests of justice.

2. [45]

   In relation to the matter of the convenience of witnesses and the like, the Court is of the view that the plaintiff would be a witness whose credibility may be questioned and therefore the giving of evidence via audio-visual means may not suffice: see Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 at [21]. The Court is of the view that this may make location of witnesses, despite modern technology, a matter which comes into consideration. Further, the plaintiff, as the moving party and an individual, ought to have the unfettered ability to observe the proceedings she has brought.

3. [46]

   The Court is of the view that were the matter heard in NSW, it may be heard in Gosford, and that even if it were heard in Sydney, Ms Whitelum would have the ability to travel to and from Court each day of the hearing, meaning that alternative care arrangements for Ms Stevens would only need to be made during the day. The same cannot be said if the matter were in Queensland.

4. [47]

   In relation to the contention that medical evidence would be required to support the submission that Ms Whitelum’s mental health would be impacted by attending the hearing in Queensland, the Court takes into account the finding of Dr Phillips that it is likely that Ms Whitelum suffers post-traumatic stress disorder, although also noting the qualification that Dr Phillips was unable to verify the diagnosis due to what he described as a “guarded history”. It is a well-established sequela of PTSD to fear return to the scene or similar surroundings (see DSM-5 at 271).

5. [48]

   Further, the defendant is able to be represented in NSW, and is currently represented in NSW through alternate legal counsel to those located in Queensland: see Hughes v Whittens Group, supra at [22].

6. [49]

   In Hughes v Whittens Group, supra, Button J dismissed the motion seeking to transfer personal injury proceedings from NSW to WA in circumstances where his Honour considered that the fragility of, and risk of endangering, the mental health of the plaintiff outweighed the disadvantage of a judge of this Court determining the laws of another state and therefore found that the interests of justice lay with the matter remaining in NSW: Hughes v Whittens Group, supra at [31].

7. [50]

   The mental health of the plaintiff as reported by Dr Phillips and affirmed in Ms Whitelum’s Affidavit provide insight into the state of her mental health concerns. The Court notes, and takes into account, the concerns submitted on behalf of the plaintiff, particularly in terms of her express aversion for travelling to Queensland for any purpose.

8. [51]

   Another aspect of the matter is that the laws that are to be applied, and the location of the alleged abuse, are Queensland. These factors weigh heavily on the determination at which the Court must arrive. The Court, in Wallaby Grip Limited v Maclean [2017] NSWSC 246, considered that the starting point at which a determination under section 5(2)(b)(iii) must begin, is that the jurisdiction within which the alleged tort occurred is the jurisdiction in which the matter ought be determined: at [20]. In those reasons, Button J noted that all other things being equal, rather than a NSW judge applying the law of another jurisdiction, the preference would be for a Queensland judge to apply the law of Queensland, as it was in Wallaby Grip Limited v Maclean, supra, to apply Queensland law: at [25].

9. [52]

   I respectfully agree with the judgment of Button J in Wallaby Grip Limited v Maclean, supra. It is important that, in the effective management of litigation, the matter is heard in the forum in which it is most likely to be resolved in light of the overriding consideration, being to facilitate the just, quick and cheap resolution of the real issues between the parties: s 56 Civil Procedure Act 2005.

10. [53]

    The Court takes into account the reported harm suffered by the plaintiff and the circumstances in which she is currently employed and housed. The Court considers that the combination of the mental health of the plaintiff and the potential risk, based on the aversion of which there is evidence that the plaintiff may discontinue proceedings should the matter be referred to the Queensland Court, outweighs the benefit of the matter being heard in the jurisdiction in which the tort is said to have occurred and in which the law is to be applied. It is therefore in the interests of justice that the motion to transfer the proceedings be dismissed and the matter be relisted before the list judge to set a timetable for proceedings to ensure the just, quick and cheap resolution of the matter for both parties.

Decision/orders

1. [54]

   For the foregoing reasons, the Court makes the following orders:

   1. (1)

      Motion dismissed;

   2. (2)

      The defendant pay the plaintiff’s costs of and incidental to the motion;

   3. (3)

      The matter be listed before Garling J for further directions at 9.30am on 16 February 2018.