Clark v Ernest Henry Mining Pty Ltd

In this decision, Crow J considered whether a proceeding commenced in the Central Registry of the Supreme Court should be transferred to the Brisbane Registry. His Honour discussed the applicable principles and made clear that it is for a defendant who wishes to move a matter from a regional registry to bring an appropriate application; it is not for a plaintiff to bring a pre-emptory declaratory application.

Crow J

7 November 2018

The applicant ("Mr Clark") suffered personal injury in the course of his employment at the Ernest Henry Mine ("the Mine"). [1]. The Mine was located approximately 38km North-East of Cloncurry in NorthWest Queensland. [1]. Mr Clark filed a claim in the Supreme Court of Queensland in the Central Registry of Rockhampton. [3]. Mr Clark did not live in Rockhampton, his accident did not occur in the Central Region, and neither he nor any of the witnesses anticipated to be called in the trial had any connection with the Central Region. [3]. Mr Clark applied to the Supreme Court, seeking a declaration that the Rockhampton Supreme Court was the appropriate venue for the hearing of the matter. [3]. The respondent cross-applied for transfer of the matter from Rockhampton to Brisbane. [4].

Rule 39 of the Uniform Civil Procedure Rules 1999 provides:

"(1) This rule applies 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.

(2) The court may, on its own initiative or on the application of a party to the proceeding, order that the proceeding be transferred to the other place."

Crow J noted that the correct starting point was to "consider that the proceeding [had] been commenced in the Central Registry at Rockhampton and accordingly the onus [was] on the defendant to satisfy the Court in terms of r 39(1) that the proceeding [could] be more conveniently or fairly heard or dealt with in Brisbane". [8]. His Honour noted that "in exercising the discretion to transfer, it is necessary for an applicant to satisfy the Court that the proceeding may be more conveniently or fairly heard or dealt with in another place and that often requires consideration of the residence of the parties, the residence of witnesses, the expense to the parties, the place where the cause of action arose, and the convenience of the Court itself". [9].

It was not disputed that the conduct of the trial in Rockhampton as opposed to Brisbane would cost each party an additional sum in the vicinity of $14,000 to $18,000. [10]. Furthermore, because no party nor any witness had any connection to Rockhampton, it was more convenient to all parties and their witnesses for the matter to be conducted in Brisbane. [12]. On the other hand, there was uncertainty of court dates in the Brisbane Registry, whereas there was current availability and certainty of court dates in the Central Registry. [13]. Furthermore, it was apparent that Mr Clark was suffering from severe personal and financial hardship and that it was very much in his interests to have the matter listed for trial as early as is possible. [13].

Ultimately, as a result of "a combination of [Mr Clark's] dire financial circumstances, the current definite trial dates in Rockhampton in the sittings commencing 18 March 2019 as well as the convenience to the Court", his Honour concluded that the proceedings should be retained in the Central Region. [25]. His Honour dismissed both applications, and noted that "it is for a defendant who wishes to move a matter from a regional registry to bring an appropriate application. It is not for a plaintiff to bring a pre-emptory declaratory application". [26].

M J Hafeez-Baig