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Cross vesting

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Reid v Wright [2012] NSWSC 1149. McCallum J.

Over birth brain injury, the plaintiffs proceeded in NSW against an obstetrician and private hospital in Cairns, Qld, the defendants moving for the suit's transfer to the Supreme Court of Queensland.

McCallum J:

Principles applicable to the present application

4 The applications are brought under s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), which relevantly provides:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and
(b) it appears to the first court that: ....
(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."

5 A convenient collection of the principles applicable to such an application may be found in the judgment of Harrison J in British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83 at [25]-[27], summarised by me in Kok v Sheppard [2009] NSWSC 1262 at [10]-[14] as relevantly including the following propositions.

6 The burden of the task of determining whether it is "in the interests of justice" that the proceedings be determined by the Supreme Court of another State is to identify the "more appropriate" forum for the proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Shultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161]-[169] per Kirby J.

7 The inquiry has alternatively been characterised as requiring the Court to identify the "natural forum" for the proceedings: British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44]; Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69].

8 The determination as to the more appropriate or natural forum for the proceedings should be made "without specific emphasis in favour of the choice of forum made by the plaintiff": Schultz at [77] per Gummow J. As I accepted in Kok at [12], the High Court took care in Schultz to correct the contrary view: at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J.

9 In James Hardie & Co v Barry, Spigelman CJ expressed the view that, where the place of the tort and the residence of the parties coincide, that will generally be determinative of the issue of the "appropriate Court". However other factors, such as the governing law of the wrong, are also relevant. 

10 Another relevant factor is whether the assessment of any questions arising in the litigation is dependent upon a degree of local knowledge: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 729D per Rogers AJA.

11 The Act does not confer a procedural discretion on the court in which the proceedings were commenced. If it appears to the court that it is in the interests of justice that the proceedings be determined by the Supreme Court of another State, the exercise of the power is mandated by the statute: Schultz at [14], [62].

Matter transferred.






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