Moley v Younger

This is an application for the transfer of proceedings commenced in the District Court of New South Wales to this Court, pursuant to s 140 of the Civil Procedure Act 2005 (NSW), and thereafter to the Supreme Court of Queensland, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (after that, it is envisaged that the proceedings would be transferred to the District Court of that State). It came before me in the Duty List yesterday morning, and in order to permit the matter to proceed expeditiously, I have regarded it as important that I deliver my judgment today.

The summons seeking transfer was filed on 27 July 2016 by the defendants, Mr Gerard Moley and Ms Orla Fox, with regard to a claim brought against them by the plaintiff, Mr Lee Younger. For ease of comprehension of the reader, I shall refer to the parties by way of their roles in the substantive dispute, rather than their roles in this application.

The background of the matter may be shortly stated. By way of a statement of claim filed at the Registry of the District Court at Lismore on 2 December 2015, the plaintiff claims that he was visiting friends at their home in Woolloongabba, an inner suburb of Brisbane. The friends were leasing those residential premises from the two defendants. The assertion of the plaintiff is that he lent on a railing, it collapsed, and he suffered serious injuries as a result. His claim is that the railing was improperly maintained by the defendants as lessors, and they are liable to him in negligence.

Certain pre-filing steps pursuant to the procedural law of Queensland were undertaken. Before me, the plaintiff submitted that they had been delayed as a result of the dilatoriness of the defendants; in contrast, their position was that any delay that occurred in Queensland should be very largely laid at the feet of the plaintiff. Eventually, as I have said, the plaintiff commenced proceedings in New South Wales at the end of last year.

The parties were agreed that, despite the somewhat convoluted (in my respectful opinion) drafting of the pertinent section, the question comes down to what is in the interests of justice. I was helpfully referred to what was said by the High Court in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14]-[16], namely:

The solicitor for the defendants submitted that a number of factors argue in favour of the proceedings being transferred.

First, the alleged tort occurred in Queensland, and prima facie it should be determined there.

Secondly, the substantive law that applies is the law of Queensland. Other things being equal, it is preferable that the Court applying the law of a State or Territory be a court of that State or Territory: see Reid (by his tutor Foster) v Wright [2012] NSWSC 1149 at [19]; BHP Billiton Ltd v Schultz at [248] (Callinan J).

Thirdly, the defendants are connected with Queensland, not New South Wales. Indeed, he submitted that the only real connection with New South Wales that the matter possesses is that the solicitors of the plaintiff have their office in Lismore.

Fourthly, it was accepted that, whether any hearing of the matter occurs in Brisbane or Lismore, the question of the convenience of witnesses is of no great moment to the resolution of the question. That is because it was accepted that expert witnesses could, in all likelihood, give evidence by way of audio-visual link; in any event, the distance between the two cities is no more than three hours by car.

In answer to a submission made by counsel for the plaintiff that a “return” of the matter to Queensland could lead to the matter being delayed, stayed, or possibly struck out, the solicitor for the defendants gave a written undertaking that, at least, the latter point would not be taken by his clients.

In short, it was said that, looking at the matter as a whole, the interests of justice call for the matter to be transferred.

In response, counsel for the plaintiff accepted that Queensland has its own statutory alteration of the common law of negligence, in the form of the Personal Injuries Proceedings Act 2002 (Qld). But he submitted that that statute is very similar to the Civil Liability Act 2002 (NSW); indeed, with regard to its central provisions, he submitted that it is identical. And he submitted that a District Court Judge sitting in Lismore would have little difficulty applying the civil law of Queensland: in fact, he submitted, that commonly happens.

Secondly, whatever be the complications of the pre-filing and pre-trial procedural regime of Queensland, that would not trouble such a judge, because it would be the substantive law of Queensland that would need to be applied in New South Wales, not its procedural framework.

Thirdly, he submitted that there is a further connection with New South Wales unremarked upon by the defendants in that, although the plaintiff is currently in Germany, after the incident he stayed in northern New South Wales for a period, and was treated there by at least one medical professional.

Fourthly, he maintained the position that delays already encountered were the fault of the defendants. And he submitted that, if his client were forced back to Queensland (as it were), those delays would surely continue.

Fifthly, he invited me to the decision of Davies J in RACQ Insurance Ltd v Roebuck [2013] NSWSC 2056, and noted that, in broadly similar circumstances, his Honour had declined to order an interstate transfer.

Sixthly and finally, he submitted that the evidence placed before me is that the matter will receive an earlier hearing date if it remains in the list of the District Court of New South Wales at Lismore, rather than the District Court of Queensland at Brisbane.

For all of those reasons, he submitted that the matter should not be transferred.

Turning to my determination, it is impossible, on the material placed before me in the midst of a busy Duty List, for me to determine the rights and wrongs of any delays encountered in the matter so far. As well as that, I am not familiar with the intricacies of pre-filing and pre-trial procedure in Queensland.

I simply proceed on the basis that I accept that there have been some delays in this matter, without being able to determine whether either or both parties are at fault.

Separately, to my mind, it is important that the alleged tort occurred in Queensland. Speaking very generally, I accept that the common sense “default position” should be that an alleged wrong is resolved where it is said to have occurred.

There are practical considerations as well. For example, if a view needed to be taken of the premises in question, it could more conveniently be done from Brisbane than Lismore. As well as that, if structural experts are to be retained, they can more conveniently inspect the premises if they are based in Brisbane, and experts based in that city will be familiar with the rules of evidence in that State, as opposed to the Evidence Act 1995 (NSW).

Secondly, whilst not cavilling with the general proposition that the various amendments to the common law of negligence made throughout Australia a decade or so ago are broadly similar, I do not accept that there are no shades of differentiation between those many statutes. Experience has shown me that analysis and application of the law of New South Wales with regard to negligence is not without its complications; I think that an important factor arguing in favour of the motion is that a Queensland judge should apply a Queensland statute elucidated by Queensland authorities in a Queensland courtroom.

Thirdly, again it is impossible for me to make any firm determination as to whether or not this matter would be more quickly resolved in New South Wales than in Queensland, although it does seem that the procedural regime leading up to resolution of such a claim in that State is perhaps more involved than it is in New South Wales. But to my mind the matter, in any event, is quite some distance for being ready to be listed for hearing in either jurisdiction, and the proposition that it could be dealt with before the end of this year, whether in Brisbane or Lismore, is, I respectfully consider, unrealistic.

Fourthly, I consider that the location of civilian witnesses, and treating medical practitioners, is of little moment, bearing in mind the closeness of the two cities and the availability of technological alternatives to evidence being given in person.

Fifthly, it was helpful to be provided with a copy of the judgment of Davies J in RACQ Insurance Ltd v Roebuck. As I have said, in that case, his Honour decided that the proceedings should not be transferred, in broadly similar circumstances. As I remarked to each lawyer during the hearing before me, however, the resolution of these applications calls for evaluative judgments that very much turn on their own facts.

Sixthly, I regard the written undertaking provided by the solicitor for the defendants as being a significant factor in my satisfaction that the plaintiff will suffer no substantive disadvantage from the matter being transferred. As well as that, a copy of this judgment will of course be available to each party, so that any judicial officer in Queensland can readily be taken to my quiet confidence that this matter will now be advanced expeditiously by both parties.

In short, I consider that a combination of factors means that the interests of justice call for this matter being transferred to Queensland, and I propose to make orders to that effect.

As for costs, neither party made written or oral submissions about them. I infer that each party was content for me to adopt the usual approach of costs following the event.

I make the following orders: