Carnie, Re; Re Richmond & Ors [1994] QSC 287

IN THE SUPREME COURT OF QUEENSLAND O.S. NO. 249 OF 1994 IN THE MATTER of Section 83 of the District Court Act 1967 - and - IN THE MATTER of a certain action pending in the District Court of Queensland, Southport Registry between GREGORY JOHN CARNIE as Plaintiff and JOHN FRANCIS RICHMOND and DAPHNE CLAIRE RICHMOND as Defendants, K & U FORMWORK PTY LTD as First Third Party and SWAN & KAVANAUGH PTY LTD as Second Third Party - and- IN THE MATTER of an Application by GREGORY JOHN CARNIE to transfer this action to the Supreme Court of Queensland JUDGMENT - WHITE J Judgment delivered: 3 November 1994 CATCHWORDS: District Courts Act 1967 - S.83 - Jurisdiction of Courts (Cross-vesting) Act - S.5(2) - Proceedings in Queensland and New South Wales - Queensland Limitation of Actions Act 1974. Counsel: Mr. K. Wilson for applicant/plaintiff Mr. K. Howe for respondent/defendants Mr. D. Savage for respondent/first third party No appearance for second third party Solicitors: Baker Johnson as town agents for Price and Roobottom for applicant/plaintiff Thompson King and Partners as town agents for Keith J. Hunter for the respondent/defendants McKays for the respondent/first third party Hearing date: 8 April 1994 -- 1 of 13 -- IN THE SUPREME COURT OF QUEENSLAND O.S. NO. 249 OF 1994 IN THE MATTER of Section 83 of the District Court Act 1967 - and - IN THE MATTER of a certain action pending in the District Court of Queensland, Southport Registry between GREGORY JOHN CARNIE as Plaintiff and JOHN FRANCIS RICHMOND and DAPHNE CLAIRE RICHMOND as Defendants, K & U FORMWORK PTY LTD as First Third Party and SWAN & KAVANAUGH PTY LTD as Second Third Party - and- IN THE MATTER of an Application by GREGORY JOHN CARNIE to transfer this action to the Supreme Court of Queensland JUDGMENT - WHITE J. Judgment delivered: 3 November 1994. The applicant seeks orders that the action pending in the District Court at Southport in which he is plaintiff and the respondents are defendants and first third party respectively be transferred to the Supreme Court pursuant to s.83 of the District Courts Act 1967. If that order is made the applicant then seeks an order that the action be transferred to the Supreme Court of New South Wales pursuant to s.5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987. The respondents do not oppose an order transferring the action out of the District Court and into the Supreme Court but they do oppose the transfer of that transferred action to the Supreme Court of New South Wales. It is anticipated that if transferred to the Supreme Court of New South Wales the action would be likely to be ordered to be consolidated with an action already commenced in that court in 1993 by the plaintiff against all the respondents as defendants. -- 2 of 13 -- 2 The applicant's action is one for damages for personal injury sustained in a work related accident which occurred on or about 4 April 1987 on land owned by the respondents/defendants located near Southport. It will be convenient to refer to the parties by reference to their description in the District Court proceeding. The defendants engaged the plaintiff to perform roofing work on a building which was being constructed for them on their land. In the course of carrying out this work the plaintiff was positioned on the steel roof framing fixing a purlin to a structural steel bracket which the plaintiff understood to be securely fastened to the face of the building. It came free and collapsed causing the plaintiff to fall some twenty feet to the ground and sustain quite serious injury which included fractures to both elbows, fracture and injuries to his spine and concussion. The plaintiff underwent a spinal fusion operation in early 1989 which has left him with residual disability in his spine. As a further consequence of his injuries and their sequelae the plaintiff has suffered depression and alcohol abuse. The plaintiff is now aged 38 years and has been largely self-employed as a roofing contractor throughout his working life. He is seriously hampered in that work by his condition subsequent to the fall both physically and psychologically. The plaintiff has obtained treatment in hospitals and from specialists in Brisbane, the Gold Coast and at Tweed Heads. In about December 1990 he moved to Kingscliff in northern New South Wales and has resided there since. KPMG Peat Marwick have prepared a report based upon the plaintiff's pre-accident earnings in which, inter alia, his past economic loss is estimated at approximately $76,000 and his future economic loss at about $280,000. Without any other items of damage being considered this document reveals that the plaintiff may well recover more than $200,000, the jurisdictional limit of the District Court. The first third party has offered to consent to the District Court having jurisdiction to give judgment above that limit, s.73 of the District Court Act. The plaintiff has not accepted that offer and the defendants have not made such an offer. -- 3 of 13 -- 3 In my view the order should be made transferring the action to the Supreme Court. Of much greater difficulty is the application to transfer the action to the Supreme Court of New South Wales. In order to consider this part of the summons it is necessary to set out a chronology of relevant events. 1. Supreme Court Writ No. 4514 of 1987 was issued on 9 December 1987 in which the applicant is plaintiff and the first respondents are the named defendants. 2. On 15 June 1990 the plaintiff delivered a statement of claim. 3. By third party notices filed on 28 June 1990 the defendants joined the first and second third parties to this action. They are respectively K & U Formwork Pty. Ltd. which had erected the structural steel roof framing and was responsible for bolting the brackets to the face of the building, and Swan & Kavanaugh Pty. Ltd. which had prepared plans and specifications for the erection of the framing. The second third party has subsequently been deregistered and prior thereto its insurer had withdrawn its cover. It was not represented at this hearing. There was no intimation that any party proposed to seek to revive it for the purposes of the litigation. 4. There then followed exchanges of pleadings between all the parties through the remainder of 1990. 5. On 22 November 1990 a consent order was made in the Supreme Court of Brisbane remitting the action to the District Court at Southport. This occurred without the knowledge or consent of the plaintiff. 6. On 12 June 1992 the plaintiff applied unsuccessfully to join the first and second third parties as defendants in the action it then being more than three years since the cause of action arose. 7. On 17 August 1992 the plaintiff issued a writ against his former solicitors for damages -- 4 of 13 -- 4 for professional negligence in failing to join the first and second third parties as defendants to the action within the period of limitation, namely, by the 3 April 1990. 8. A defence to that action was delivered on 12 February 1993 in which the former solicitors pleaded, inter alia, by way of defence that the plaintiff had suffered no loss or damage as up until 3 April 1993 he could bring an action in New South Wales against the present defendant and the first and second third parties as defendants. Alternatively, by reason of the failure to commence and maintain an action against the defendants and first and second third parties as defendants in New South Wales he had unreasonably failed to mitigate his damage. 9. Proceedings were commenced on 19 March 1993 against the defendants and the first and second third parties as defendants in the Supreme Court of New South Wales issued out of the Northern Rivers Registry. The statement of claim was served in November 1993. The second defendant (the first third party herein) delivered its defence on 25 February 1994. It alleges that the plaintiff's cause of action by operation of the Queensland statute of limitations ceased or, alternatively, was statute barred at the time when the New South Wales proceedings were instituted. It is further alleged that the plaintiff's cause of action will merge with the judgment in the Queensland action and the New South Wales proceedings will be estopped on principles to be found in Port of Melbourne Authority v. Anschun (1981) 147 C.L.R. 589. In the further alternative it is alleged that the New South Wales proceedings are an abuse of process whilst the Queensland action is on foot. The following matters are mentioned by either or both of the defendants and first third party as pointing to the inappropriateness of transferring the action to the Supreme Court of New South Wales:- -- 5 of 13 -- 5 . The current Queensland action is close to being ready for trial. The plaintiff has delivered a signed Certificate of Readiness. A trial could be obtained within six months in the District Court. (There is no estimate for the Supreme Court, but my own knowledge of the state of the civil list would suggest about 18 months absent an order for a speedy trial.) . The Queensland action has proceeded very slowly to date. The defendants have brought an application in the past to strike out for want of prosecution and although unsuccessful the plaintiff was ordered to pay the costs of the application. . There is a possibility of a view of the accident site. (This seems most unlikely.) . Witnesses . The accident was investigated by a senior inspector of Construction Safety in Southport and he resides at the Gold Coast. . Witnesses as to the circumstances of the fall are resident in Queensland. . The plaintiff has received treatment at Queensland hospitals. . Numerous Queensland medical specialists have either treated the plaintiff or prepared reports in relation to his condition and some if not all will be required at a trial. They include Dr. Robert Cooke, orthopaedic surgeon, Dr. Graham Gartrell, psychiatrist, Dr. Ivan Yaksich, neurosurgeon, Dr. Tony Blue, orthopaedic surgeon, Dr. Andrew Eklund, orthopaedic specialist, Dr. B. Geissmann, general -- 6 of 13 -- 6 practitioner, Ms. Helen Craig, occupational therapist. . In addition there are a number of medical practitioners from whom the plaintiff has received treatment at Tweed Heads including Dr. G. Hunter, Dr. Gregory Freeman, orthopaedic surgeon and Ms. Libby Gibson, occupational therapist. . The plaintiff has undergone a rehabilitation program through the Commonwealth Rehabilitation Service at Tweed Heads and the Tweed Heads District Hospital. . There is a backlog of about 100 civil cases ready and awaiting trial in the Northern Rivers Registry of the Supreme Court of New South Wales with limited availability of sitting days. It presently is estimated to take about three to four years from first appearance on the callover list of civil matters in that registry to the date of trial. . In the Sydney registry the period from first appearance on the callover list of civil matters to trial can be as high as six years. . The cost of airfares from Brisbane or Southport to Lismore together with the available times of flights and the fees of the medical witnesses together with the approximate time that they would be engaged should the matter be heard in Lismore are set forth in the affidavit of Mr. McCormick, solicitor for the first third party. He has estimated that on a conservative basis that these matters would involve an extra $12,000 to $14,000 to the cost of the litigation if the proceedings are head in Lismore. This would be about double for these items than that which could be expected were the trial to be held in Southport or in Brisbane. -- 7 of 13 -- 7 . The solicitors for all parties are Queensland solicitors and there would be further expense involved in retaining New South Wales solicitors to act. The Jurisdiction of Courts (Cross-vesting) Act 1987 provides in s.5(2) relevantly:- "Where - (a) a proceeding (the "relevant proceeding") is pending in the Supreme Court (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 of a Territory and 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... the first court shall transfer the relevant proceeding to that other Supreme Court." The New South Wales proceedings against all the defendants has been commenced in time pursuant to that State's limitation statute. It is not submitted that that court does not have jurisdiction, McKain v R.W. Miller & Co (S.A.) Pty. Ltd. (1991) 174 C.L.R. 1. The plaintiff submits that it is not an abuse of process to have the two actions on foot because they are different. This is said to be because the issues raised in the plaintiff's case in New South Wales include allegations of negligence against the formwork and structural steel contractors and structural and construction engineers as well as against the owners who contracted with him to carry out the work. The plaintiff submits that because of the matters of defence pleaded by the first third party in New South Wales to which I have referred and the refusal of that party to consent to be joined as defendant in Queensland and waive the limitation defence justice requires that the Queensland action be cross-vested to New South Wales and that consolidation occur. In order for the plaintiff to succeed in his purposes of proceeding against the first third party as defendant and rendering nugatory the first third party's defences based on estoppel and -- 8 of 13 -- 8 merger the Queensland action must be subsumed by the New South Wales proceedings. Street CJ in Bankinvest A.G. v. Seabrook (1988) 14 NSWLR 711 observed of the process of transfer pursuant to the cross-vesting legislation at p.714 as follows:- "Viewed from this standpoint it can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. Consideration of textured principle and deep learning - in particular principles of international law such as forum non conveniens - have no place in a cross-vesting adjudication. There is, in substance, no principle to be enunciated other than the necessity of applying the specific considerations stated in the cross-vesting legislation, primary amongst which is the pursuit of the interests of justice. Internal administrative decisions within a court as to where particular proceedings should best go forward in the interests of justice are in many ways akin to the making or refusing of transfer orders under the cross-vesting legislation. The two provisions I have mentioned, namely the power of a court to make a transfer order on its own motion and the denial of any appeal from an order in relation to a transfer, are clear pointers towards this view." Rogers A-JA in considering the approach to the exercise of the discretion to transfer had regard to observations of the House of Lords in Spiliada Maritime Corporation v. Cansulex Ltd. [1987] A.C. 460 as broadly corresponding to the criteria designated by the cross-vesting legislation. At p.476 of that case Lord Goff stated:- "...a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, ie in which the case may be tried more suitably for the interests of all the parties and the ends of justice." Mr. Savage for the first third party argued that if the Queensland proceedings were to be cross- vested to New South Wales a distinct and substantial advantage would be accorded to the plaintiff and a similar disadvantage accorded to the first third party because it would necessarily defeat the defences pleaded in the New South Wales action. He also argued that the transfer -- 9 of 13 -- 9 would inappropriately shift the loss from the former solicitors of the plaintiff onto the first third party if any liability is found to lie in the first third party. That seems to me to be an irrelevant consideration to the question of transfer. A number of cases have considered these matters. In Newton v. Queenstown Pty Limited (unreported decision of Sully J in the Supreme Court of New South Wales of 7 May 1993) the plaintiff resided in Queensland and the accident occurred in Queensland. He brought proceedings initially in Queensland but they were statute barred and he brought further proceedings in New South Wales. Two of the four defendants had a corporate presence in New South Wales. The defendants sought to cross-vest the action to Queensland. His Honour declined to exercise jurisdiction under the cross-vesting legislation for the purpose of remitting the matter to Queensland for hearing. He said:- "At the end of the day I cannot see why it is unjust that the plaintiff, who has been defeated by the limitation legislation in one State; who is lawfully entitled to bring his cause of action afresh in another State free from those technical limitations; and who has proceeded lawfully in accordance with those entitlements, should be deprived of, as I see it, his plain right to proceed in the forum of his choice. I cannot think at the end of the day that the balance of justice is such as to require that the Court should remit this matter to the Supreme Court of Queensland. Indeed, in the events that have happened, I would regard it as visiting upon the plaintiff a positive injustice to which he ought not be exposed." Similarly in Maglan v. Mount Isa Mines Limited (unreported decision of Studdert J in the Supreme Court of New South Wales of 31 August 1993) the plaintiff commenced proceedings in the Supreme Court of New South Wales in respect of three work-related incidents which occurred in Queensland. He had earlier issued a writ out of the Queensland Supreme Court against the defendant but discontinued before the delivery of a defence when the defendant declined to waive the limitation defence. The defendant sought to have the New South Wales proceedings remitted to Queensland. Studdert J. following Newton noted that the plaintiff had -- 10 of 13 -- 10 indicated a willingness to consent to the remission to Queensland of the New South Wales proceedings provided the defendant gave an undertaking that the limitation defence would not be raised. He noted that the defendant was not so prepared and indeed had indicated that it would rely upon the relevant limitation statute should the proceedings be remitted to Queensland. His Honour said at p.6:- "If I accede to the defendant's application the result will be that the plaintiff's claim, at least on the first cause of action, would inevitably be defeated..." His Honour declined to remit. In an earlier decision of Jenkins v. Australian Shipping Co. (unreported decision of Loveday J. in the Supreme Court of New South Wales of 13 September 1991) the defendant sought to transfer to the Supreme Court of Queensland an action for damages in a work related action. The plaintiff was injured in three incidents whilst he was employed as a seaman on board a motor vessel. On each occasion the incidents occurred at or near Gladstone in the State of Queensland. The plaintiff was resident in Queensland, the port of registry of the vessel was Gladstone and the defendant carried on business in Queensland. The reason for instituting proceedings in New South Wales was to take advantage of the longer limitation period provided by the New South Wales legislation. There were some features of association with New South Wales, for example, the defendant carried on business in New South Wales and the contract of employment between the plaintiff and the defendant had been entered into in 1966 in Newcastle. His Honour took the view that the connection between the action and New South Wales was very slight. He observed that if the interests of justice for the plaintiff required that the action be retained in New South Wales the same principles would require that it be transferred to Queensland to protect the defendant's interests. His Honour said that if the Queensland Supreme Court was the more appropriate court then the interests of justice required -- 11 of 13 -- 11 that a transfer order be made. With respect that seems to suppose that the conclusion as to appropriateness in s.5(2)(b)(i) is the only determinant for the exercise of the discretion when it is plain that the interests of justice are a separate basis for that exercise. His Honour further considered that there was a possibility that the plaintiff may have been able to have the limitation period extended on application pursuant to the Queensland legislation. Dowsett J. had occasion to consider that same action on 21 January 1994 in Jenkins v. Australian Shipping Commission trading as the Australian National Line (unreported decision) when the plaintiff sought to have the action cross-vested back to New South Wales. It appears that on consideration the plaintiff's legal advisers took the view that there was no prospect of an extension of time being granted in Queensland. His Honour declined to make the order sought. On a consideration of his reasons it seems that his Honour was reluctant to make an order returning the proceedings to New South Wales because such an order would, in effect, operate as an appeal from the decision of Loveday J. I am not inclined to follow the approach in the first Jenkin's decision as it seems to give no separate weight to the effect of s.5(2)(b)(iii). In Fielding v. Doran (1985) 59 ALJR 511 Dawson J hearing a remitter application in an action commenced in the diversity jurisdiction of the High Court observed that had the Queensland limitation statute been applicable to that action if it were remitted to Queensland he would have regarded the limitation period in Queensland as a material circumstance, at p.514. Mr. Savage for the first third party has submitted that the plaintiff could discontinue the Queensland proceedings. That would be productive of a great deal of waste and impose an onerous order for costs upon the plaintiff at this stage in the proceedings. He also submitted that the New South Wales proceedings could be cross-vested to Queensland. That would indeed be a most desirable course because of the factors of convenience and cost and delay reduction but the first third party has declined to undertake not to rely upon the Queensland limitation period -- 12 of 13 -- 12 by way of defence if that should occur. Mr. Savage pointed to the possibility that the period for bringing the action against the first and second third parties might on application be extended pursuant to s.32 of the Queensland statute as was suggested by Loveday J. in Jenkins. It is quite unlikely that any such extension would be granted. The first third party has not sought to have the New South Wales action against it struck out as an abuse of process although it has pleaded that as a defence but it is difficult to see how it could do so given that it is not a defendant in the Queensland action. However I would say no more about that. The plaintiff has brought his action in New South Wales which he is entitled to do. He has a connection with that jurisdiction having resided there for some years prior to the commencement of the New South Wales proceedings and has received treatment in that State. It is not appropriate that both actions remain on foot. In the end it is not a compelling argument that by making an order to transfer the first third party will be deprived of the defences which it has raised in the New South Wales proceedings as defendant. Those defences are entirely dependent upon the continuation of the Queensland proceedings and their earlier disposition. Of more concern are the practical issues of convenience, expedition and cost reduction. I incline to the view that a suitable costs order may address some concerns of the respondents. The delay is regrettable but in all the circumstances I am of the opinion that in the interests of justice the proceedings now pending in the Supreme Court of Queensland by virtue of the order that I have just made transferring the District Court proceedings into the Supreme Court ought to be transferred to the Supreme Court of New South Wales and I so order. The action pending in the District Court at Southport be transferred to the Supreme Court. Further order that those proceedings be transferred to the Supreme Court of New South Wales. -- 13 of 13 --