Wright v Blackall[2005] QSC 142

SUPREME COURT OF QUEENSLAND

[1] MOYNIHAN J:  This is an application by the plaintiff to transfer this action (the Queensland action) to the Supreme Court of New South Wales.  It was made pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) – the Cross-Vesting Act.

[2] The plaintiff’s application is supported by the defendant and the second third party but is opposed by the first third party.

[3] In the event that the action is transferred the plaintiff proposes to have it remitted to the District Court of New South Wales, where he has commenced proceedings  (the New South Wales action), with a view to the actions being consolidated and tried in that court.

[4] In each action the plaintiff sues for damages as a consequence of having contracted Q-Fever which he alleges he contracted when he exposed to infected sheep in the course of his employment as a shearer.

[5] After his condition was diagnosed the plaintiff claimed and was paid compensation by WorkCover Queensland (the second third party in the Queensland action).

[6] Before the institution of the Queensland action the plaintiff’s solicitors were informed of WorkCover concern that the plaintiff was not covered by it.  WorkCover formally notified the plaintiff that it would not be indemnifying Blackall Investments Pty Ltd, the defendant in the Queensland action by letter of 14 May 2003.  By letter of 19 June it confirmed that position and was giving notice “in compliance with its obligations under the WorkCover Act (Workers Compensation and Rehabilitation Act 2003 (Qld)).” 

[7] In a letter of 23 June 2003 WorkCover said that it would engage in the necessary pre-court procedural steps under the WorkCover Act:  “solely for the purpose of enabling the complainant to establish, if that was necessary that he had complied with … (the Act) … in case he needed to do so as against the employer or some other insurer”.

[8] WorkCover declined to indemnify the Queensland defendant on the basis that it had a place of employment in New South Wales and employed the defendant there.  The second third party is in that event, is to be the insurer.

[9] The Queensland action was instituted on 3 February 2004.  The statement of claim alleged that the defendant (Blackall Investments Pty Ltd) owned a property near Cunnamulla in Queensland. 

[10] It was alleged that the defendant offered the plaintiff work on the property as a shearer.  The offer was made on the property and the plaintiff accepted it.  The events are alleged to have occurred in December 2000.

[11] On 1 July 2004 the defendant filed a conditional defence in the Queensland action and joined the third parties.  The conditional defence disputed jurisdiction for the following reasons:

1. The defendant’s registered office was in New South Wales;

2. Any relevant contract was made in New South Wales and any relevant duty or breaches by the defendant were committed “predominantly” in New South Wales;

3. The applicable law was New South Wales law.

[12] The defendant admitted it employed the plaintiff.  It pleaded that it acted through an agent (National Grazing Services Pty Ltd) to offer him work as a shearer at its properties in Queensland and New South Wales and that the contract was made in New South Wales.

[13] The defence denied that the property referred to in the statement of claim was the plaintiff’s place of employment as was there alleged and that the plaintiff was employed to work there.  Rather it alleged he was employed to work on the defendant’s New South Wales or Queensland properties as designated from time to time by the defendant.

[14] The New South Wales proceedings were instituted on 17 February 2003 against a different defendant to that in the Queensland action.  Other parties were subsequently joined.

[15] The defendant to the Queensland action is not a party to the New South Wales action.  It was apparently intended to join it but the prescribed pre-litigation steps had not been carried out.

[16] The New South Wales action, as it is now constituted, pleads that William Michael Barker and Catherine Barker (the third defendants in that action) owned a property in Queensland.  It appears to be the same property as that referred to in the Queensland action.

[17] It is alleged that the plaintiff was employed by Kojonup Rural Pty Ltd (the first defendant in the New South Wales action) to work on the property in Queensland owned and occupied by the third defendants.

[18] It is further alleged that the first and or second defendants (National Grazing Services Pty Ltd – the company is referred to in the defence to the Queensland action but which is not a party to that action) contracted the plaintiff to work on the Queensland property under the direction and or control of one or all of the first, second and third defendants. There is no allegation as to where the contract was entered into.

[19] The allegations referred to in the preceding paragraphs are in issue by in the New South Wales action. 

[20] Finally I note that contributory negligence is pleaded in each action.

[21] Against that background I turn to the legislation.  Section 5(2) of the Cross-Vesting Act provides:

“(2) 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

(ii) having regard to –

(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being institute in the Supreme Court of another State or Territory; and

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-paragraph (a) not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice:

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 or of a Territory.

The first court shall transfer the relevant proceeding to that other Supreme Court.”

[22] This application was heard on 30 November 2004.  On 7 December the High Court gave judgment in BHP Billiton Limited v Schultz[1].  Counsel for WorkCover Queensland, the first third party, drew it to my attention and informed the other parties that he had done so.

[23] BHP Billiton[2] was concerned with the proper test to be applied by a court in exercising the discretion conferred by sub-s 5(2) of the New South Wales analogue of the Queensland Cross-Vesting Act.   The court essentially endorsed the approach of the New South Wales decisions of Bankinvest AG v Seabrook[3] and James Hardie & Co Pty Ltd v Barry[4].  The approach of those cases is reflected in the decision of Philippides J in this court in World Firefighters Games, Brisbane 2000 v World Firefighters Games Western Australia Incorporated & Ors[5]. 

[24] The High Court rejected applying an approach based on the private international law concepts “forum non conveniens”, “natural forum” and “clearly inappropriate forum”, although some of the considerations applied in cases dealing with those issues may be useful in dealing with applications under the Cross Vesting Act.

[25] The statute requires a court to ensure cases are heard in the court “dictated by the interests of justice”.  Once it appears that it is more appropriate that the proceedings be determined in the other court the court “shall transfer” the proceedings, it is not a matter of discretion; see per Gleeson CJ, McHugh an Heydon JJ 13 in BHP Billiton[6] and Bankinvest[7] at 730.

[26] At [32] of World Firefighters[8], Philippides J, drawing on Spiliada Maritime Corporation v Cansulex Ltd[9] and James Hardie[10] included a useful check list of connection factors to be considered in assessing what is the “more appropriate forum”.  See also Dawson v Baker[11] at 714 adopted by Wilson J in Ropat Pty Ltd v Glenroy Investments Pty Ltd[12].

[27] The usefulness of such check list (it is no more than that) is not diminished by the fact that Spiliada[13] was not concerned with the crossvesting legislation; see BHP Billiton[14] [per Gleeson CJ, McHugh and Gummow JJs at 17 per Kirby J 162, Bankinvest[15] per Rodgers AJA 732.

[28] The relevant considerations include:

“(a)   The application of the substantive law, if it is peculiar to a   particular jurisdiction;

(b)Forensic advantages or disadvantages conferred by the competing procedural laws;

(c)  The plaintiff’s choice of forum and the reasons for that choice;

(d)Substantive connections with the forum (e.g. residence, domicile, place of occurrence and choice of law);

(e)Balance of convenience to parties and witnesses;

(f)Comparative cost and delay;

(g)Convenience to the court system.”

[29] It is noteworthy that Lord Templeman in Spiliada[16] thought the factors connecting a case with a jurisdiction were “legion” and that the authorities gave little guidance as to how they applied in individual case.  BHP Billiton[17] at [18-21] per Gleeson CJ, McHugh and Heydon JJs is to comparable effect.

[30] For reasons which will emerge it seems to me that difficulties arise in this application revolving around the proposed remitter of the Queensland action and its consolidation with the New South Wales actions.

[31] There is no satisfactory explanation for proceedings being commenced in Queensland if they are connected with the New South Wales action and the proceedings commenced in that State.

[32] The allegations in the statement of claim in the Queensland action comprehensively connect the action with Queensland and are without any New South Wales connection apart from the fact that the Queensland action defendants have been incorporated in New South Wales. 

[33] Paragraph 3 of the statement of claim alleges the defendant offered the plaintiff work as a shearer on a property near Cunnamulla.  The offer, which it is alleged was accepted, was made “at” the property.  The acceptance was admitted.  Paragraph 3 is otherwise denied and the defence alleges there was an offer in different terms made by its agent National Grazing Services Pty Limited (a party to the New South Wales action, in New South Wales). 

[34] There is an further apparent inconsistency in that the defence in the Queensland action alleges the contract was to work on properties in Queensland and New South Wales.  In the New South Wales action the contract is alleged to have been to work in Queensland on the same Queensland property referred to in the Queensland action.

[35] Moreover the New South Wales action does not allege that the second defendant in those proceedings arranged the plaintiff’s employment with the defendant in the Queensland action; or for that matter that his contract of employment was with the owners and occupiers of the property.  Rather it alleges a contract with the first or second defendants to work on the property owned by the third defendants at the direction of all or one of the defendants.

[36] The material is not forthcoming in explaining these apparent inconsistencies, how they arose, how they might impact on the consolidation of the actions or on the trial of the consolidated actions.

[37] These considerations make it difficult to determine the implications of the relationship between the two actions for the purposes of the Cross-Vesting Act and to identify the full extent of consolidation such as overlap, duplication or cost thrown away if the proceedings are transferred, remitted and consolidated rather than proceed separately.

[38] The breach of contract was arguably in Queensland and the issue of the proper law of the contract in the Queensland action is reasonably clear.  That will not be the case in the consolidated action in New South Wales.  It will depend on the resolution or, factual issues at trial and of the apparent inconsistencies referred to earlier.

[39] On either view any tort was most likely committed in Queensland therefore Queensland substantive law applies; John Pfeiffer Pty Ltd v Rogerson[18].

[40] Queensland substantive law includes the limitation, liability and assessment of damages provisions of the WorkCover Act.  There are modifications imposed on liability and damages imposed by chapter 5. 

[41] The essence of the dispute between the Defendant and WorkCover as a third party is the application of subsection 11(2) of the Act.  It provides:

“Meaning of damages

11(1)‘Damages’ is damages for injuries sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay the damages to –

(a) the worker; or

(b) if the injury results in the worker’s death –

a dependant of the deceased worker.

(2)A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under –

(c) another Act; or

(d) a law of another State, the commonwealth or another country.” 

[42] There are authoritative Queensland decisions on the working of that section; see Burrows v Workers’ Compensation Board[19], Foster v Skilled Communications Services Pty Ltd[20].

[43] Those considerations weigh in favour of the Queensland proceedings being heard in this State.

[44] It may be accepted that the remittance of proceedings from the Supreme Court to the District Court in New South Wales is essentially a formality.  It is not however so clear that that is the position with consolidation given the apparent inconsistencies and the failure to deal with them.

[45] It is said that the New South Wales proceedings are more or less ready for trial. That may be accepted but there is, as I have indicated potential complication in respect of consolidation. 

[46] In addition the consolidated proceedings will involve seven different parties as defendants and third parties and with varying conflicting interests.

[47] The Queensland proceedings are relatively simple.   There is no occasion to think that the disclosure process will be other than simple.  Put shortly there is no reason to think that those proceedings cannot be progressed expeditiously to the point of an application for trial date being filed.  It could be anticipated that trial dates could then be available in two or three months.

[48] There will be additional cost to the first third party (if not other parties) in the event that the proceedings are transferred, remitted and consolidated.  I have already mentioned difficulties from this perspective.

[49] The trial of the consolidated proceedings in New South Wales would be more costly than the trial of the Queensland action.  It has been estimated that the trial of the consolidated actions would take 10 to 14 days or more.  In the trial of the Queensland action, the issues are less complex; there is only one defendant.  It would take considerably less time to try.

[50] It is not possible to say whether with any degree of confidence whether it would be more costly to have separate proceedings in New South Wales and Queensland than it would be to have the consolidated proceeding although from a conceptual viewpoint it may be so.  On the other hand the dispute reflected in the actions may be resolved on the reflected outcome of the Queensland action.

[51] There would be additional, duplicated and “thrown away” costs.  These are estimated to be of the order of $8,000 to $15,000. 

[52] If the actions are conducted in New South Wales the first third party will lose the advantage of its contractual arrangements with its Queensland solicitors.  It is estimated that solicitors fees for defending the Queensland action would not exceed $17,500 but that the equivalent fees in New South Wales would be “at least” $20,000 to $30,000.

[53] Whether there is a trial in Sydney or a trial in Brisbane it will be necessary for the parties and witnesses to travel.  They will be inconvenienced in varying degrees. 

[54] From the perspective of the plaintiff, he lives in a remote rural area and has no personal connection with Queensland, he has family at Penrith outside Sydney where he stays if he is required to go to Sydney.  All else being equal that would arguably favour a Sydney trial.

[55] The plaintiff has been and continues to be treated by Associate Professor Andrew Lloyd at the Prince of Wales Hospital in Sydney who has provided a number of reports in connection with the plaintiff’s claim.  That would not appear to be a great obstacle to a trial in Brisbane.

[56] To summarise in terms of the check list in [23]:-

● There is a substantive connection with Queensland and Queensland law in the Queensland action.  The plaintiff initiated proceedings in Queensland first for reasons which are not altogether clear.  The proposed consolidation or its failure give rise to potential complications.

● If the consolidation application fails then the actions will proceed separately in any event.  If it survives there will be a range of complexities because of the inconsistencies referred to earlier.

● On the other hand a successful uncomplicated consolidation offers the possible binding resolution of the issues in both the actions.  Whether that would lead to a quicker and cheaper outcome is an open question.

● If the actions proceed separately there could be inconsistent outcomes.

● The defendant in the Queensland action has filed a conditional defence based on considerations favouring New South Wales’ jurisdiction.

● The first third party in the Queensland action had declined to indemnify the defendant in that action on a similar basis.

● There is a prospect, inadequately dealt with in the material, that the consolidated actions will be more protracted and expensive for the first third party, if not other parties.

● The balance of convenience to parties and witnesses, if no other considerations, would probably favour a trial in New South Wales.

● There is little advantage for either venue in terms of delay, convenience of the court system does not seem to be a factor.  There is no significant forensic advantage or disadvantage conferred by competing procedural laws. 

● The trial of the consolidated proceedings in New South Wales would be more costly than the trial of the Queensland proceedings.  It is not possible to say whether it would be more costly to have separate proceedings in New South Wales and Queensland than it would be to have the consolidated proceeding although it may be more likely. 

[57] The question whether the applicant has satisfied me on the balance of probabilities that the interests of justice dictate that this action be transferred to the Supreme Court of New South Wales is finely balanced.  In view of those circumstances the plaintiff offers to provide undertakings to be agreed with the first third party to address that party’s concerns.  There should then be liberty to apply should it be necessary for the court to settle undertakings addressing the first third party’s proper concerns.

[58] I therefore order:

1. Upon the plaintiff providing written undertakings acceptable to the first third party the action be transferred to the Supreme Court of New South Wales.

2. Liberty to apply.