By Stuart Eustice, Partner and Gregor Campbell, Lawyer

The plaintiff initiated proceedings against multiple interstate defendants, including the State of Queensland (the State), in the Institutional Abuse List of the Victorian Supreme Court (the Court), alleging historical physical and sexual abuse in Queensland. The State, in an interlocutory application, sought to transfer the proceedings to the Supreme Court of Queensland on the basis that:

1. Queensland was the proper venue since the alleged torts occurred there and therefore Queensland law applied.
2. It had not submitted to the jurisdiction of the Court and invoked s 58 of the Judiciary Act (Cth), which it submitted allows a State to decline the jurisdiction of another State’s court.
3. The Supreme Court of Queensland was better placed to manage the proceedings given the likely location of witnesses.

The plaintiff opposed this application, arguing in opposition that:

1. Her legal representatives and key medical witnesses were located in Victoria, given this was where she resided and was receiving treatment for her alleged injuries.
2. The State had effectively submitted to Victorian jurisdiction through its conduct in the proceedings.
3. The case should proceed in Victoria to avoid delay and/or hardship to her, noting that if it were cross-vested, she would be deprived of her Victorian-based supports and the costs to her would escalate.

Held

The Victorian Court declined to cross-vest the matter, ultimately finding that although the alleged torts occurred in Queensland and Queensland law applied, practical considerations for the plaintiff (solicitor location, witness convenience, trial availability) remained in favour of retaining the proceeding in Victoria. In particular, the Court gave significant weight to the risks posed to the plaintiff’s mental health should the matter be transferred.

The Court further held that the State had the resources to conduct out-of-state proceedings not available to the plaintiff, including the ability to call witnesses remotely. It also held that:

1. Section 58 of the Judiciary Act did not operate in the manner submitted by the State, allowing it to decline the jurisdiction of the Court.
2. The State, by its actions—among other things, filing a defence that did not raise any objection to the jurisdiction of the Court—had submitted to the Court’s authority and jurisdiction.

Significance

This decision is a timely reminder of the factors a court considers when deciding cross-vesting applications, in particular the weight the Court assigns to the convenience of the party with fewer resources (often the plaintiff) in the modern age of audio-visual evidence.