By Scott Moloney, Partner

In Yates v The State of New South Wales [2021] ACTSC 193 the ACT Supreme Court dismissed an application by The State of New South Wales to transfer the plaintiff’s originating application claiming damages in the ACT Supreme Court to the Supreme Court of New South Wales pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT).

Background Facts

In November 2018, the plaintiff was a tow truck driver towing a Ford GT vehicle from Shepparton to Canberra.  Whilst stopped at a service station in Gundagai, the plaintiff alleges that he was spoken to by members of the NSW Police who asked if he was a member of an outlaw motorcycle gang, asked whether he had any tattoos of the number “13”, and asked whether the car that he was towing was stolen.

Despite telling the police that he was not a member of an outlaw motorcycle gang, and that he was towing the car as part of his employment, the plaintiff alleges the police grabbed him and conducted a body search on him looking for tattoos, and searched his tow truck and the car for guns and drugs. After the search the plaintiff alleges that a bag contained $5,000 was missing from the truck.

After conducting the searches the police told the plaintiff that his truck would be defected due to the condition of the driver’s seat, seatbelt and due to a leaking engine.

After being served with a defect notice, the plaintiff’s employer asked him to ask the police for their names, badge numbers and station details. The police told the plaintiff their names but nothing else.

The police told the plaintiff that he had 2 hours to travel to Canberra before the defect notice came into effect. He commenced driving on the highway, but noticed the same police following him. Because he did not feel safe, the plaintiff returned to the service station, with the police following him. The plaintiff approached the police car and asked the police for their details again. The police left the service station without responding.

When the tow truck was inspected by a mechanic four days later, no defects were revealed.

A week later the plaintiff was charged by the police with the offence of failing or refusing to comply with a requirement to submit to a search, contrary to the now repealed s 25(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The plaintiff pleaded not guilty and alleged there was no reasonable or probable cause for the laying of the charge. When the matter came before the NSW Local Court for hearing the charge was withdrawn by the prosecutor.

The plaintiff commenced proceedings in the ACT Supreme Court seeking damages for personal injury caused the imminent threat of physical violence by the police constituting assault, battery caused by the direct and intentional application by the police, and as a result of malicious prosecution by the police. The plaintiff alleges that he has suffered PSTD, anxiety, depression, hurt, humiliation and distress as a result of the actions of the police, and this has had the effect of reducing his earning capacity, decreased the quality and enjoyment of life, and has resulted in him having difficulties with attention and concentration.

The law

Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) permits the ACT Supreme Court to transfer proceedings to the Supreme Court of another state or territory if it is otherwise in the interests of justice that the proceeding be determined by the Supreme Court of another state or territory.

The test for determining the application was what the “interests of justice” require, as discussed by the High Court in BHP Billiton Ltd v Schultz [2004] 221 CLR 400, and other decisions of the ACT Supreme Court such as Bateman and Another v Fairfax Media Publications Pty Ltd & Ors [2013] ACTSC 72, and which requires consideration of the following non-exhaustive list of factors:

• The location of the commission of the tort alleged;
• The place where the parties live;
• The convenience of the parties and witnesses;
• The law governing the proceedings;
• The experience of either court and its capacity to provide an efficient and speedy trial or where it has special expertise in the type of proceedings or particular evidentiary or other procedural rules that promote effective disposition of cases;
• The condition of the parties, including whether there is urgency arising; and
• Whether the assessment of any questions arising in the proceedings is dependent upon a degree of local knowledge.

Consideration of factors

The Court noted that the tort was committed in NSW, and although there were numerous witnesses living in NSW, the plaintiff and most of his treating practitioners lived in the ACT, or in nearby Queanbeyan, just across the ACT border. As a practical matter it would be more convenient for the plaintiff and most of his treating practitioners to attend court in the ACT.

The lawyers for the parties were all based in NSW, and although the defendant’s legal representative submitted that a proceeding in the ACT Supreme Court would put the defendant to additional expense, the Court was not persuaded that the defence of what was a relatively straight forward matter would cost the defendant more if it continued in the ACT.

Neither party submitted that there was any material difference between the expertise of either Supreme Court in determining the issues raised by the plaintiff’s claim, or that there was a degree of local knowledge required. Further, the Court found that the availability of each court to provide an efficient trial in a timely manner was a neutral factor, and there appeared to be no particular urgency about the case.

Significantly, the Court noted that medical evidence provided by the plaintiff indicated that his PTSD condition was likely to be exacerbated if he were to be required to travel to the NSW Supreme Court in Sydney for a hearing. The plaintiff’s clinical psychologist told the court that the plaintiff’s condition had recently worsened and he had been hospitalised on two separate occasions. Further the psychologist noted that the ACT was somewhere that the plaintiff felt comfortable because he had lived in the Territory for many years. The psychologist said that care should be taken so as to avoid the plaintiff’s PTSD condition deteriorating by a change in the litigation forum.

Decision

Associate Justice McWilliam was not satisfied that the NSW Supreme Court was the more appropriate jurisdiction. The state of the plaintiff’s medical condition, combined with the greater convenience for a number of witnesses in the proceedings in hearing the matter in the ACT Supreme Court, led her to conclude that it was in the interests of justice that the proceedings remain in the forum in which they were commenced.