By Nieva Connell, Partner and Holly White, Lawyer
The plaintiff, Mr Hollingsworth, delivered a load of cattle to the Mount Gambier and District Sale Yards in South Australia on 1 August 2018 where he suffered a crush injury. Immediately following the incident, the plaintiff was taken by ambulance to Mount Gambier Hospital where he was treated in the casualty department but not admitted. He returned to Mount Gambier Hospital the next day and was cleared to go home under the care of his partner. He lives in Strathfieldsaye, Victoria. The plaintiff underwent surgery in Bendigo and continued to receive treatment for physiotherapy and hydrotherapy in Bendigo.
The plaintiff commenced an action in negligence in the Supreme Court of Victoria at Bendigo against the District Council of Grant, the defendant.
Some 14 months after the proceeding was commenced, the defendant applied to have the proceeding transferred to the District Court of South Australia sitting at Mount Gambier. The plaintiff opposed the application, deposing it would cause him significant physical and financial hardship if the proceeding was transferred, noting he lived approximately 400km from Mount Gambier.
The Court found the interests of justice dictated the proceeding should remain in Victoria after weighing up the following factors:
- There was an inordinate and unexplained delay in making the application.
- If the proceeding were transferred, the plaintiff would lose the trial date. The Court was unable to transfer the District Court of South Australia as section 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) required a proceeding commenced in the supreme court of one state to be transferred to the supreme court of another state. This meant the proceeding needed to be transferred to the Supreme Court of South Australia and then the defendant would need to apply to transfer to the District Court of South Australia. No evidence was provided this could occur before the next circuit listing in Mount Gambier.
- The plaintiff was unable to travel for long distances in a car due to his injury.
- A preponderance of factors connected the proceeding to Victoria:
- The plaintiff lived near Bendigo.
- The plaintiff’s law firm was in Bendigo.
- The plaintiff’s medical witnesses were located in Bendigo and Melbourne.
- These were weighed against:
- The defendant was located in South Australia.
- The defendant’s three witnesses live and work in the Mount Gambier region.
- The Court noted that whilst electronic evidence could be given, this was a neutral factor as both Supreme Courts would have such facilities.
- The incident occurred in South Australia, approximately 10km east of Mt Gambier. Although South Australian legislation applied, and the Supreme Court of South Australia would have more expertise and experience in applying South Australian law, the Court noted it too had expertise and experience in determining personal injury claims. This factor was not determinative and was outweighed by other factors.
- The Court determined whether a view was required was not a determinative factor. If a view was required, the Court and parties could fly to Mount Gambier.
The defendant’s application was dismissed and it was ordered to pay the plaintiff’s costs.
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