By Stuart Eustice, Partner, William Gordon, Senior Associate and Henry Van Til, Lawyer.
Warning: This article contains descriptions of sexual abuse. The content may be distressing or triggering for some readers. Please take care when reading and consider whether this material is appropriate for you at this time.
In Bowring v Prince Alfred College [2026] CSC 260, Mr Bowring (plaintiff) commenced proceedings in the Supreme Court of Victoria against Prince Alfred College (defendant) alleging he was sexually abused between 2011 and 2012 by an employee while he was a boarding student at the school in South Australia. The plaintiff alleged the defendant breached its duty of care and was vicariously liable for the conduct of its employee. The plaintiff now resides in Colorado in the United States.
The defendant applied under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) to transfer the proceeding to the Supreme Court of South Australia on the basis that there were significant connecting factors to South Australia, and that it was the more appropriate and natural forum in the interests of justice.
The plaintiff opposed the cross-vesting application relying heavily on psychiatric evidence that returning to Adelaide could reawaken traumatic memories, flashbacks and nightmares and potentially lead to a relapse in substance abuse.
The Court must undertake a practical balancing exercise considering a broad range of connecting factors to determine the most appropriate or natural forum, with relevant considerations including:
The Court ordered that the proceeding be transferred from Victoria to South Australia.
In a cross-vesting application, there is no onus of proof on either party. If one Court is even slightly more appropriate than another, the proceeding must be transferred to that Court in the interests of justice.
The plaintiff’s psychiatric condition and the potential impact of returning to Adelaide was a significant consideration and was the strongest factor weighing against the cross-vesting application. The Court accepted that returning to Adelaide could reawaken traumatic memories and associated distress.
The Court considered evidence from the plaintiff’s psychiatrist which stated that the “stressful nature of this litigation” may carry risks to the psychiatric harm of the plaintiff. However, the plaintiff’s psychological risks were not tied exclusively to Adelaide, but to the stress of the litigation generally. Further, the plaintiff did not reside in Victoria, was not receiving treatment there, and would need to travel from the United States or participate remotely regardless of where the trial proceeded.
The plaintiff’s connections to Victoria were also limited. Although he had extended family in Melbourne who could support him, his parents lived in New South Wales and were unlikely to travel regardless of whether the trial occurred in Melbourne or Adelaide.
Further, the Court was not persuaded that a Victorian trial would proceed materially sooner than a South Australian trial. There was evidence suggesting the Supreme Court of South Australia could list the matter within a similar timeframe.
Several factors strongly favoured South Australia as the more appropriate forum, including:
Balancing the competing considerations, the Court ultimately held that it was more appropriate for the proceeding to be heard in South Australia.
This decision reinforces the non-exhaustive lists of issues that the Court is required to consider when assessing the merits of a cross-vesting application, which were set out in BHP Billiton Ltd v Schultz (2004) 221 CLR 400.
In Alison Jane Thomson & Anor (EOTL Terrance James Roberts) v Midalco Pty Ltd & Ors [2024] VSC 240, reliance was placed on the convenience of the parties, which is consistent with the finding in this application.
Whilst this application strictly speaking was made on the basis of fear of psychiatric harm to the plaintiff by reason of the litigation being heard in Adelaide, given the ultatime disposition of the application to cross vest, it may also be an example of forum shopping.
Finally, the Court will always prioritise a ‘nuts and bolts’ approach. Factors such as the location of the alleged conduct, the governing law, the location of witnesses, and the defendant’s place of operation in this instance, were significant considerations in determining the natural forum for the proceeding.
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