Stanford v Insurance Commission of Western Australia

1. [1]

   The defendant, the Insurance Commission of Western Australia seeks an order by amended notice of motion filed on 17 November 2023 that the proceedings be transferred to the Supreme Court of Western Australia.

2. [2]

   The order is not opposed by the plaintiff and an accommodation has been reached as to each party bearing its own costs of the motion should the Court decide to make the order.

3. [3]

   The plaintiff commenced proceedings by statement of claim filed on 25 September 2023 alleging that he sustained injuries in a motorcycle accident caused by an unidentified driver or motor vehicle owner on 26 September 2020.

4. [4]

   The defendant relies upon an affidavit of John Cooper sworn 1 November 2023 which deposes to the following matters relevant to the application. First, the plaintiff lives in Western Australia, the witness to the accident lives in Swan View Western Australia, treatment was received at Armadale Hospital Western Australia, the treating GP practices in Forrestdale in Western Australia and the plaintiff’s treating surgeon practices at Murdoch, Western Australia. Self- evidently, the defendant, Insurance Commission is also located in Western Australia.

5. [5]

   Transfer under s 8(1)(a) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (“the Act”) depends upon whether it is in the interests of justice within the meaning of s 5(2)(b)(ii) of the Act that the proceedings be determined, in this case, by the Supreme Court of Western Australia.

6. [6]

   In British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83, Harrison J (as the CJ at CL then was) collected the relevant principles:

7. [7]

   Written submissions provided by the solicitor for the defendant succinctly and accurately stated the relevant considerations and their application here:

8. [8]

   As the solicitor for the defendant submitted, the accident and the negligence alleged occurred in Western Australia, the plaintiff resides in Western Australia, the defendant is the Insurance Commission of Western Australia, the identified lay witness resides in Western Australia, the health professionals identified as having provided treatment to the plaintiff reside in Western Australia, the plaintiff in his Statement of Claim has identified and conceded that the governing law for this matter will be that of Western Australia, and there would be no prejudice derived from transferring these proceedings to Western Australia.

9. [9]

   Although there is no information presently available as to the plaintiff’s current medical condition, it would be reasonable to infer that it would be more convenient for him to have his case determined in Western Australia rather than undertaking travel to New South Wales.

10. [10]

    Given that the accident occurred in Western Australia and that the plaintiff and all currently known witnesses reside in Western Australia, the inconvenience and expense that would be involved in having all parties and witnesses travel to New South Wales for a hearing is impractical and unjustified.

11. [11]

    The Supreme Court of Western Australia is both the more appropriate and natural forum for the proceedings and so it is in the interests of justice for the transfer to occur.

Orders

1. [12]

   I make the following orders:

   1. (1)

      Pursuant to s 8(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), the proceedings are transferred to the Supreme Court of Western Australia.

   2. (2)

      Each party is to bear its own costs of the notice of motion filed 17 November 2023.