Icely v Nominal Defendant
[2001] QDC 263
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- Unreported Judgment
- Icely v Nominal Defendant[2001] QDC 263
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Icely v Nominal Defendant[2001] QDC 263
Icely v Nominal Defendant[2001] QDC 263
DISTRICT COURT | No D4645 of 1999 |
CIVIL JURISDICTION
JUDGE O'SULLIVAN
IAN ROSS ICELY | Plaintiff |
and
NOMINAL DEFENDANT | Defendant |
BRISBANE
DATE 24/08/2001
JUDGMENT
HER HONOUR: I publish my reasons.
...
HER HONOUR: If I could delete paragraph 9 from my published reasons and add this instead. Concerning costs I refer to Idacorp Pty Ltd v. Freshglen Pty Ltd 2000 QSC 136.
I order the respondent to pay the plaintiff's costs of the application to be agreed or taxed.
I will add a further paragraph 10. I order the matter be transferred to Townsville.
...
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DISTRICT COURT OF QUEENSLAND |
CITATION: | Icely v Nominal Defendant [2001] QDC 263 |
PARTIES: | IAN ROSS ICELY Plaintiff and NOMINAL DEFENDANT Defendant |
FILE NO/S: | D4645 of 1999 |
DIVISION: | Civil jurisdiction |
PROCEEDING: | Application to Court |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 24 August 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 August 2001 |
JUDGE: | Judge O'Sullivan |
ORDER: |
|
CATCHWORDS: | TRANSFER OF VENUE – personal injuries – balancing exercise Idacorp Pty Ltd v. Freshglen Pty Ltd (2000) QSC 136. |
COUNSEL: | Ms J Rosengren for the plaintiff Mr M O'Sullivan for the defendant |
SOLICITORS: | K.K. Splatt & Associates for the plaintiff Gadens Lawyers for the defendant |
- [1]The applicant/plaintiff applies for the action to be transferred from the District Court at Brisbane to the District Court at Townsville.
- [2]The action was commenced on 26 November 1999 and is a claim for personal injuries arising out of an alleged incident in which the plaintiff was injured. The plaintiff alleges that he was struck by an unidentified vehicle while walking along the Bruce Highway near Rollingstone at 9.20 pm on 3 April 1999.
- [3]The defendant denies that the incident occurred as alleged by the plaintiff and denies that the plaintiff suffered injuries as a result of any negligence on the part of the driver of an unidentified vehicle.
- [4]Rule 45 of the Uniform Civil Procedure Rules 1999 provides for a change of venue and states that a court may order a change of venue if it “is satisfied a proceeding pending ... can be more conveniently or fairly heard or dealt with in another court.”
- [5]In Newman v. Nilsen & Allianz Australia Insurance (Appeal No. 9294 of 2000), the Court of Appeal decided on 27 April 2001 that the plaintiff's election of the place of trial is “... 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”.
- [6]It is thus incumbent on me to engage in a “balancing exercise”.
- [7]Counsel for the applicant/plaintiff and for the Nominal Defendant/respondent have each prepared written submissions, and supplemented these with oral submissions in Chambers on 3 August 2001. There are a number of relevant factors which go to the “balancing exercise”:—
- The necessity for a view.
Taking into account the circumstances of the alleged incident and the matters pleaded in the defence, I consider it is more probable than not that a view will not be held.
- Witnesses in Townsville.
The plaintiff now resides in Townsville.
Each of the ambulance officers who attended at the scene of the alleged incident resides in Townsville.
The current whereabouts of the surgical and orthopaedic registrars at Townsville General Hospital at the relevant time, who examined the plaintiff, is unknown - they may or may not be in Townsville.
It is possible that evidence may be required from two friends of the plaintiff in connection with the Griffiths v Kerkemeyer claim. They reside in Townsville.
- Medical specialists.
Evidence may be required from three medical specialists: Pentis, Reid and Boys, all of whom practice in Brisbane. I consider it likely that whichever Judge hears the trial is likely to agree to them giving evidence via telephone rather than travelling to Townsville.
- Legal representatives.
Counsel and solicitors for the plaintiff and for the defendant are in Brisbane. Counsel for the plaintiff/applicant submitted that the parties can engage counsel and town agents from Townsville: I consider this is possible, but unlikely.
- [8]There is some merit in the submissions of both counsel, but I am of the opinion that the balance of convenience favours the transfer to Townsville, and I accordingly grant the application.
- [9]Concerning costs, I refer to Idacorp Pty Ltd v. Freshglen Pty Ltd (2000) QSC 136. I order the respondent to pay the plaintiff's costs of the application to be agreed, or taxed.
- [10]I order the matter be transferred to Townsville.