Newman v Nilsen[2001] QCA 160

COURT OF APPEAL

de JERSEY CJ

THOMAS JA

MACKENZIE J

BRISBANE

DATE 27/04/2001

JUDGMENT

THE CHIEF JUSTICE:  On 29 September this year the learned Central Judge dismissed the appellant's application for an order that the action be transferred from the Court in Rockhampton to Brisbane.  The basis of the application rested in the substantial, if not overwhelming, connection between the claim and the Brisbane region.

It is a claim for damages in respect of injuries allegedly sustained by the respondent because of the admitted negligence of the first appellant driver.  The connection between the claim and the Brisbane region may be seen from this catalogue of relevant considerations as taken from the appellant's outline of argument. 

As at the date of the accident the respondent lived in Brisbane, where he continued to reside at the date of commencement of the proceedings, and indeed as at the time of the application for change of venue. 

He was initially treated at the Ipswich Hospital, nearby to where the accident occurred, which was at Goodna, and his ongoing medical treatment was provided by doctors based at either Brisbane or Ipswich.  The appellant would propose that further medical examinations be undertaken by Brisbane based specialists. 

At the time of the accident and for a period thereafter the respondent was employed by the Brisbane City Council.  A likely issue as the matter is developing will be whether the respondent reasonably complied with a regime for rehabilitation provided for him following the accident.  Witnesses relevant to that issue are located, it would seem, in Brisbane.

In addition the plaintiff's parents, who instructed the plaintiff's present solicitor who practises in Gladstone, lived temporarily in Brisbane at the time of the application in order to assist the plaintiff with that rehabilitation.

There seems, in short, to be no significant connection between the proceedings and the Rockhampton region beyond the circumstance that, as was his right, the respondent commenced proceedings in the Supreme Court at Rockhampton. 

There was under section 289 of the Supreme Court Act 1995 a confirmed discretion in the learned Judge to remove the action to Brisbane were he of the view, so persuaded by the appellant, that, "it could be tried or heard more expeditiously, cheaply, conveniently, or advantageously" in the Supreme Court at Brisbane.

The learned Judge addressed those questions.  It does seem to me, however, with respect to his approach that the combination of circumstances to which I earlier referred overwhelmed any other consideration and virtually necessitated an order for transfer. 

I appreciate that Appeal Courts are admonished to exercise particular caution in undertaking to review a decision on a matter of practice or procedure, and that one should in those cases be conscious of questions of injustice.  I refer to Contender 1 Ltd v. Lep International Pty Ltd (1988) 63 Australian Law Journal Reports 26 at 28, and Adam P Brown Male Fashions Pty Ltd v. Phillip Morris Inc (1981) 148 Commonwealth Law Reports 170 at 177.

It does seem to me, consistently with the approach set out in House v. The King (1936) 55 Commonwealth Law Reports 499 at 504-5, that this Court should in this particular case disturb the exercise of discretion of the primary Judge.  That course is appropriate bearing in mind what I have described as the overwhelming aggregation of circumstances warranting if not necessitating transfer to Brisbane, and that result should ensue notwithstanding the exercise of particular caution acknowledging the character of the ultimate issue as procedural.

I would allow the appeal and order that the action be transferred to the Supreme Court in Brisbane.

THOMAS JA:  I agree.  I find it difficult to think of a stronger case for change of venue.  All the matters of convenience and expense in relation to witnesses, and in relation to preparation for trial, favour the holding of the trial in Brisbane. 

It is true that the decision to transfer the matter is one of practice and procedure and that the Judge in exercising that discretion has a fairly wide range open to him, and that this Court is normally not prone to interfere with the exercise of such a discretion.  However, the criteria for its exercise are mentioned in section 289 of the Supreme Court Act 1995, and it seems to me that his Honour must have erred in failing to apply those criteria, namely of expedition, cheapness, convenience, and advantage, all of which favoured a transfer to Brisbane.

There was one other point which deserves to be noted.  His Honour at two places in his reasons referred to "the right of the plaintiff to elect his own place of trial".  It is possible that too much weight was given to that factor, which is only a matter of slight weight.  I consider it to be no more than a right to nominate or to open the bidding.  Once a contest emerges a balancing exercise needs to be performed and the right of initial nomination has little intrinsic weight.

I agree with the reasons of the Chief Justice for allowing the appeal in this instance.

MACKENZIE J:  I agree.  I am conscious of the constraints upon interfering with discretionary judgments and the restraint that must be applied by Appellate Courts in interfering with decisions on matter of practice or procedure.  Nevertheless, for the reasons that have been given by the Chief Justice and Mr Justice Thomas, I agree with the orders proposed.

...

THE CHIEF JUSTICE:  The orders are these:  allow the appeal; set aside the orders made on 29 September 2000 as recorded in paragraphs 1 and 3 of the formal order; order that the respondent pay the appellant's costs of the appeal and of the application heard on 29 September 2000, to be assessed.

We note the undertaking given by the appellant through its counsel not to enforce that costs order prior to judgment.

Order that the action be transferred from the Supreme Court at Rockhampton to the Supreme Court in Brisbane.