Background

Mr Bowring (plaintiff) filed proceedings against Prince Alfred College (defendant) in the Supreme Court of Victoria. The plaintiff lives in the United States.

The plaintiff alleges when he was a minor, he was abused at Prince Alfred College in South Australia between 2011 and 2012.

The defendant is a private school in South Australia and applied to transfer the proceedings to South Australia from Victoria in the interests of justice.

In summary, the plaintiff’s link to Victoria was he has family there. The plaintiff also claimed that transferring the proceedings to South Australia and requiring him to return there would cause him psychological harm.

Decision

The Court held, in deciding to transfer the claim from Victoria to South Australia that:

• The onus of proof is not on either party.
• It is only if both Courts are equally appropriate that the initial choice will have significance; if one more is appropriate than the other, however so slightly, a transfer to the more appropriate Court is mandatory.
• A wide range of considerations and connecting factors may be taken into account and must be fairly balanced to identify the most appropriate natural forum.
• Relevant considerations and connecting factors might include:
  • interests of the parties;
  • where the tort/wrong occurred;
  • residence of the parties;
  • convenience to the parties and witnesses;
  • law governing the proceedings;
  • the Court and its ability to provide an efficient and speedy trial; and
  • condition of a party.
• The connecting factors in Victoria were limited in this case. The plaintiff’s parents live in New South Wales and are unlikely to travel regardless of where the trial is ultimately heard.
• The plaintiff’s residence is neutral. There was no evidence the plaintiff had ever lived in Victoria. The plaintiff would need to give evidence and instruct his solicitors by either travelling or remotely whether the trial is ultimately heard in Victoria or South Australia. The plaintiff has a cousin, uncle and aunt who reside in Victoria for support.
• The plaintiff relied on a medical report stating he would suffer flashbacks and nightmares and associated distress if he must return to Adelaide. The psychiatric report did not limit potential exacerbation of symptoms to just being linked to a return to Adelaide but also to the carriage of the litigation itself.
• South Australia can likely list a trial in a similar timeframe to Victoria.
• Balancing the competing considerations and connecting factors, the more appropriate and natural forum for this proceeding is Ultimately the Supreme Court of South Australia because:
  • while the plaintiff’s psychological injury is clearly a relevant factor, but when considered in conjunction with the factors raised by the defendant, and considering the interests of justice, it is clear a transfer to South Australia is appropriate;
  • the alleged tortious conduct occurred in South Australia;
  • the defendant is located in South Australia;
  • numerous potential witnesses reside in South Australia, some of whom are currently employed by the defendant; and
  • the substantive law governing the proceedings is the law of South Australia.

Takeaways

This decision provides a timely reminder of the considerations and connecting factors a Court may take into account to determine a cross vesting application. The factors that were considered in this case are not exhaustive but do provide a guide for what parties considering applying to transfer proceedings will need to establish to be successful.

A copy of the full decision can be accessed here: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2026/260.html