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- Unreported Judgment
Ryan v Dearden QCA 245
SUPREME COURT OF QUEENSLAND
Ryan & Anor v Dearden & Anor  QCA 245
TERRENCE BERNARD RYAN
NICOLE THERESE RYAN
CHARLES OSWALD DEARDEN
ROBERT ANDREW TAYLOR
Appeal No 7885 of 2021
SC No 366 of 2021
Court of Appeal
Appeal from Interlocutory Decision
Supreme Court at Rockhampton – Unreported, 15 June 2021 (Crow J)
DELIVERED EX TEMPORE ON:
12 November 2021
12 November 2021
Bond JA and Boddice and Henry JJ
Appeal dismissed with costs.
APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – CHANGE OF VENUE – where the appeal sought relief against the exercise of judicial discretion in an interlocutory decision – where the parties were engaged in a personal injuries action filed in the Rockhampton Supreme Court – where the incident the subject of the action occurred at Jondaryan – where the applicants sought to transfer the matter to Toowoomba or alternatively Brisbane – where this application was refused – where the case had not been certified as ready for trial and the list of witnesses likely to be called at trial had not been finalised – whether any substantial injustice was done to any of the parties by the refusal of the application
A P J Collins for the appellants
R D Green, with M Willey, for the first respondent
M Black for the second respondent
McCabe Curwood for the appellants
Grant and Simpson Lawyers for the first respondent
Hall Payne Lawyers for the second respondent
HENRY J: The appellants, Mr and Mrs Ryan, are defendants in a personal injuries action. They hosted their son’s 21st birthday celebration at their rural property near Jondaryan. The plaintiff respondent, Mr Dearden, was an attendee who, like many others, stayed overnight at the property. It is alleged that while Mr Dearden slept in his swag, another guest, Robert Taylor, poured petrol onto him and set him alight, inflicting injuries. Mr Dearden’s personal injuries claim against the Ryans, alleging negligence on their part, was filed in the Rockhampton Supreme Court on 14 April 2021. In an application filed 28 May 2021 and heard 14 June 2021, the applicants sought an order pursuant to r 39, Uniform Civil Procedure Rules 1999 (Qld) that the future conduct of the proceedings be transferred to the Supreme Court Registry at Toowoomba or alternatively Brisbane. The application was refused by the Central Judge on 15 June 2021. The Ryans now appeal that decision.
The principles governing such an appeal were recently reviewed by Bond JA in Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd  QCA 198. His Honour there observed that the degree of appellant restraint ordinarily called for in determining appeals from an exercise of judicial discretion is even greater in appeals from an exercise of judicial discretion in an interlocutory decision concerning questions of practice and procedure. His Honour cited the observation of Sir Frederick Jordan in Re the Will of Gilbert (dec) (1946) 46 SR (NSW) 318, 322-323, that:
“… there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
Bond JA observed at  that while there was no absolute rule,
“… generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties.”
The circumstances of the present case do not suggest any substantial injustice was done to any of the parties by the refusal of the application.
The application was brought at such an early stage that the case had not been certified as ready for trial and the array of witnesses likely to be called at trial had not been resolved. There was little clarity about the circumstances that would usually be influential in demonstrating whether the considerations of convenience or fairness alluded to in r 39 ought result in a proceeding being transferred to another place. For all this Court knows, those circumstances might by now have more clearly crystallised, so that better grounds may now exist to make another application to transfer the proceeding. However, that ongoing possibility only serves to underscore that the interlocutory order now under consideration worked no substantial injustice.
The appellants do not assert the learned primary Judge erred in identifying relevant legal principles, perhaps unsurprisingly, given his Honour’s own contribution to jurisprudence in this field - see Clark v Ernest Henry Mining Pty Ltd  3 Qd R 136, Kember v Carl & Anor  QSC 105, Frasson v Frasson (2020) 4 Qd R 648. Rather, the appellants complain the learned primary judge made findings or assumptions which were erroneous or not supported by the evidence. Their main two complaints unwittingly highlight the degree of uncertainty then prevailing in respect of potentially relevant considerations - a significant difficulty for them given that they carried the onus of satisfying the Court the matter should be transferred.
The appellants criticise his Honour’s assessment of the probable availability of Court time to hear the trial in forthcoming Rockhampton sittings because such a task could not be undertaken accurately in circumstances where the matter was not yet ready to be listed for trial. Yet his Honour’s assessment was obviously premised on listing probabilities, rather than certainties. Further he was, as the resident Judge in sole control of the Rockhampton Supreme Court list, uniquely well placed to assess those probabilities. Moreover, the uncertainty pending the matter’s state of readiness for trial was likewise relevant in obscuring the venue suitability of Toowoomba or Brisbane and thus a hindrance to the appellants’ application.
The appellants also criticised his Honour’s conclusion that it was not possible to make any proper assessment of comparative cost of witness transport and accommodation. In fact, his Honour variously described the assessment as difficult and one about which he could not reach any firm conclusions, repeatedly explaining that was because it was not yet known which witnesses would likely give evidence.
The applicants contend that the percentage of known potential witnesses reside materially closer to South East Queensland than Rockhampton, making it obvious there will be substantially greater cost and inconvenience in transporting witnesses to Rockhampton, compared to South East Queensland. His Honour acknowledged that percentage or “preponderance” as he put it. However, such a percentage approach is helpful only if applied to the persons who will likely give evidence and that was not yet known.
Other criticisms are that there was miscalculation of some travel times, improper regard to a hearsay observation about the respondent’s plan to himself fly witnesses to Rockhampton and inappropriately broad assumptions as to the prospect of some witnesses giving evidence by video link. It is sufficient to note his Honour was obviously well aware of where the relevant potential locations are and the nature of available travel to them, that he gave no more weight to the aforementioned hearsay observation than he did to the many other vagaries before him and that he was correct in acknowledging the potential option of giving evidence by video link “may decrease the expense, particularly of witnesses that come from all parts of Queensland and interstate”.
The dismissal of the application below was a quintessential example of a discretionary decision which was well open on the state of the limited information then before the Court. I would order: appeal dismissed with costs.
BOND JA: I agree with the order proposed by Justice Henry and his reasons for proposing it.
BODDICE J: I agree with Justice Henry.
BOND JA: Order accordingly. Adjourn the Court.
- Published Case Name:
Ryan & Anor v Dearden & Anor
- Shortened Case Name:
Ryan v Dearden
 QCA 245
Bond JA, Boddice J, Henry J
12 Nov 2021