Laing v Jones[2022] QSC 234

SUPREME COURT OF QUEENSLAND

1. [1]
   The plaintiff suffered personal injury in a motor vehicle collision in Townsville.  Her personal injuries claim against the first defendant driver and his insurer, the second defendant, was filed in the Cairns Supreme Court on 4 November 2021.  The pleadings and disclosure phases are complete.  Liability is admitted.  It remains to conduct a trial as to quantum.  These reasons are concerned with where and when that trial should be held.
2. [2]
   The plaintiff requested the second defendant (referred to hereafter as the defendant) to sign a request for trial date form.  On the last day of the 21-day time limit for that process, the defendant announced it would not sign the request as it did not consider the Cairns Supreme Court the appropriate venue for the trial and it sought the plaintiff’s consent to an order that the proceeding be transferred to Brisbane.  The plaintiff did not consent.
3. [3]
   On 5 September 2022 the plaintiff filed an application for an order that the signature of the defendant on the request for trial date form be dispensed with pursuant to r 469 Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  Two days later the defendant filed an application seeking an order pursuant to r 39 UCPR that the proceeding be transferred to the Supreme Court at Brisbane. 
4. [4]
   On the hearing of both applications on 21 October 2022 I dismissed the transfer application and, on the defendant’s indication it would now proceed to sign the request for trial date form, I dismissed the application that the signing be dispensed with.  I proceeded to list the trial for hearing in the Cairns Supreme Court commencing 27 February 2023 and made my standard directions on the listing of a trial.  I indicated that I would publish my reasons in respect of both applications later.  These are those reasons.
5. [5]
   The starting point is that the plaintiff was legally entitled to file her proceeding before the Cairns Supreme Court.  Section 65 Supreme Court of Queensland Act 1991 states that there is one Supreme Court Registry in Queensland, but there are to be regional registries in Brisbane, Rockhampton, Townsville, Cairns and district registries where the Supreme Court sits.  Under UCPR r 33 a proceeding may be started in any “central registry”, a term defined in UCPR Schedule 3 as meaning, for the Supreme Court, “the registry of the court at Brisbane, Rockhampton, Townsville or Cairns”.  Where a proceeding is not started in a central Registry of this court, r 35 restricts the districts in which it may be started by reference to considerations including where the cause of action arose.  But such restrictions do not apply here, the Cairns Supreme Court registry being a central registry of the court.^[1]
6. [6]
   Rule 39 UCPR provides, inter alia, that on the application of a party the Court may order the proceeding be transferred “if at any time a Court is satisfied a proceeding can be more conveniently or fairly heard or dealt with at a place at which the Court is held other than the place in which the proceeding is pending”.  The onus is on the defendant as the party applying for the transfer to persuade the Court that such an order should be made.^[2] 
7. [7]
   Considerations relevant to what may be convenient or fair will inevitably vary from case to case.  Potentially relevant considerations have been said to include the place of residence of the parties and witnesses, the expense of the parties, the place where the action arose and the convenience of the Court.^[3]  To those considerations I would add the timeliness of the case’s disposition. 
8. [8]
   Timeliness of disposition is a consideration of greater than ordinary importance here in that the plaintiff’s financial circumstances are poor.  Her net weekly income of approximately $637 per week is approximately the same as her weekly cost of living expenses, excluding her ongoing medical costs, which will soon exceed her remaining reserve funds.  It is therefore very important that the trial is concluded promptly, so that she may soon have the benefit of any damages payment to which she is entitled.  I am fortified in giving significant importance to this consideration against a background where liability is admitted. 
9. [9]
   It is likely the trial will be concluded more promptly if it remains in Cairns.  Admittedly, the defendant led evidence that there are civil sittings available in Brisbane throughout November and the first half of December.  Such evidence is relevant though only if there is a real prospect of the trial being heard then.  When I pointed out that the trial could be heard in Cairns in the week commencing 21 November 2022 the defendant’s counsel, who is not counsel briefed to conduct the trial, indicated trial counsel was not available for such a listing.  Further, there was no assurance forthcoming that the defendant’s trial counsel would be available for some other listed date in November or December. 
10. [10]
    Additionally, if the matter is transferred to Brisbane, the parties would be required to comply with the case management process described in Practice Direction No. 18 of 2018 (PD 18/2018).  That process requires parties, at a minimum, to create a document plan, create a resolution bundle, hold a conference between the parties, prepare a list of real issues in dispute, produce a trial plan and conduct a case management conference.  The plaintiff’s solicitor deposed none of that process had occurred to date.  No evidence was advanced as to how long the process would take or which aspects of it were likely to be dispensed with or would need to be completed before the court in Brisbane would be prepared to allocate a trial date there.  In the absence of such evidence, I infer from the nature of the requirements of PD 18/2018 it is unlikely that, if transferred, the trial would be listed to occur in Brisbane on a date this year. 
11. [11]
    I do not ordinarily apply PD 18/2018 in managing the Cairns civil list.  To do so would defeat the advantage inherent in managing a much smaller list than in Brisbane and managing matters, which in the main will be heard by me, in accordance with my assessment of what level of case management and what orders are appropriate in the individual case.  In a case like the present, such case management directions as I would usually make, and did make here, go to simple aspects of how the hearing will proceed, with the consequence there would not have been any obstacle to listing the trial for hearing in Cairns in the week commencing 21 November 2022. 
12. [12]
    In the upshot, accommodating the defendant’s trial counsel’s availability, I listed the trial to be heard in Cairns in the week commencing 27 February 2023.  I did so conscious that, it “might” by then also have been able to be listed for hearing about the same date in Brisbane, but certain of such listing ability in Cairns.  I gave particular weight to the fairness of delivering such certainty for the plaintiff for two reasons.  The first was the above-discussed desirability of a timely listing because of the plaintiff’s poor financial circumstances.  The second was because, in circumstances where a listing in Brisbane in late 2022 was procedurally unrealistic, I had nonetheless disregarded a realistically available Cairns listing in that same era, as a matter of fairness to the defendant, whose trial counsel would have been unavailable.
13. [13]
    The defendant’s arguments went to the convenience, particularly the reduced cost, of holding the trial in south-east-Queensland where most of the relevant players in the case work or reside. 
14. [14]
    Bearing in mind the plaintiff wants the trial to proceed in Cairns it is the inconvenience and cost which such a course will visit upon the defendant’s side which is particularly relevant in this context.  The defendant’s solicitor and barrister are Brisbane based.  It is a relevant consideration that it will be more costly and inconvenient for them to have to litigate this trial in Cairns as compared to in their home environment of Brisbane.  It is not however a particularly weighty consideration given it was the defendant’s choice to engage lawyers who were based in Brisbane rather than elsewhere in Queensland and to have done so at a time when there was no assurance at all that any trial would be held in Brisbane.  To remove doubt, the facts that a compulsory conference and later a mediation in this case occurred in Brisbane present as neutral considerations.  Each are very different events from a trial and there is no suggestion that the plaintiff’s agreement or acquiescence to those venues involved any concession regarding the trial venue.
15. [15]
    Before leaving the topic of location costs of lawyers I record that the plaintiff’s solicitor is Townsville based and his trial barrister is Brisbane based.  A potential cost consequence of their attendance at a trial in Cairns rather than Brisbane may be visited upon the defendant, depending upon what order is made as to costs.  The relevance of that consideration is somewhat diminished by the fact that not even the defendant is agitating for the trial to be heard in Townsville, so that either way the plaintiff’s solicitor will be attending the trial at a place other than where he carries on business.
16. [16]
    A somewhat weightier consideration than lawyer locations is the location of the defendant’s trial witnesses, there being little choice open on that topic.  However, the trial is only about quantum, with the consequence the defendant has only two prospective lay witnesses.  The defendant, who carries the onus in seeking the transfer, did not specifically identify who they will be calling, save for explaining there will be one representative each from two companies located on the Sunshine Coast, each of which formerly employed the plaintiff.  Whether that means the representatives reside on the Sunshine Coast is unknown.  Even if it is assumed they likely do, much else remains unknown about them, particularly whether they are the type of witnesses who need to appear in person and what, if any, material disadvantage the defendant would suffer if they give evidence via video link.    For instance, what type of evidence will they give?  More particularly, will they give direct evidence of their own dealings with or observations of the plaintiff or merely attest to company records of dealings with the plaintiff?  None of this is apparent on the evidence or the pleadings.  In the circumstances I regard the inconvenience and potential cost associated with having to call these witnesses for a trial in Cairns as compared to Brisbane as a relevant but relatively minor consideration favouring Brisbane as a venue.
17. [17]
    The remaining witnesses for the defendant will be experts and there is no evidence that the defendant, or the plaintiff for that matter, intends to avoid the default position inherent in s 39PB(2) Evidence Act that the experts will be called as witnesses by audio visual link or audio link.  It follows the location of the defendant’s experts, and for that matter the plaintiff’s experts, is a neutral consideration.
18. [18]
    The lay witnesses who may be called by the plaintiff are the plaintiff, her parents and her present partner, who all live at the Sunshine Coast.  Four of her former business associates may also be called.  They are based variously in Alice Springs, Townsville, Brisbane and the Sunshine Coast but the plaintiff has sought the defendant’s consent to them being called remotely.  Even if in the end result some of the plaintiff’s witnesses are not called or some give evidence by video link or telephone it may reasonably be assumed some will give evidence in person and that it will be more expensive for the plaintiff to transport and accommodate them for a trial in Cairns as compared to Brisbane.  While that is a cost the plaintiff is content to incur, given her choice of venue, it is also a cost that may be visited upon the defendant in the event an order as to costs favours the plaintiff at the trial’s end. 
19. [19]
    The Uniform Civil Procedure (Fees) Regulation 2019 outlines that non-professional witnesses are entitled to be paid a travelling allowance, accommodation allowance and attendance allowance.  A non-professional witness is entitled to be paid the expenses actually incurred in travelling.  If by air, this is the cost of an economy flight.  If lay witnesses are required to travel from the Sunshine Coast to Brisbane, the witnesses would be entitled to be paid for the costs actually incurred for fares for public transport, or “if public transport was not available—the amount calculated at the rate per kilometre payable under the Public Service Act 2008 to a public service employee required to use the employee’s private motor vehicle for official purposes, taken to the nearest whole cent”.  This is likely to be less than the costs of air travel from the Sunshine Coast to Cairns.
20. [20]
    If accommodation allowances are required, the allowance for a witness is, “the amount calculated at the rate payable under the Public Service Act 2008 to a public service officer”.  The prospective overnight accommodation allowance costs are likely to be higher in Cairns because of the likelihood that at least some Sunshine Coast witnesses would commute daily if the trial were held in Brisbane.
21. [21]
    The result then is that if the plaintiff receives a costs order in her favour, her witness travel and accommodation costs potentially payable by the defendant are likely to be higher if the trial is held in Cairns rather than Brisbane, the latter centre being closer to where the preponderance of potential witnesses in the case will reside.  In giving weight to this undoubtedly relevant consideration, I do so conscious that the plaintiff’s counsel made a concession as to costs, should the trial remain at Cairns despite the preponderance of witnesses being closer to Brisbane.  That concession was that it would be appropriate for any standard costs ordered against the defendant to be assessed, so far as they relate to the plaintiff’s witnesses’ travel and accommodation costs, by reference to the costs which would have been payable had the trial been held in Brisbane. 
22. [22]
    Bearing in mind that concession and weighing the various other considerations I have identified, particularly the need for certainty and timeliness in the trial’s listing, I was not satisfied that the trial could be more conveniently or fairly heard at Brisbane rather than Cairns.
23. [23]
    I ordered:

1. In the application for transfer:
   1. The application is dismissed.
   2. The applicant will pay the respondent’s costs on the standard basis.
2. In the application to dispense with signing the request for trial date:
   1. On the respondent’s indication it will now proceed to sign the request for trial date, the application is dismissed.
   2. The respondent will pay the applicant’s costs on the standard basis.
3. The matter is listed for trial on 27 February 2023 for three days with one day reserve.
4. Orders as per my standard trial directions.