CROSS VESTING APPLICATIONS
Next time you are at the bar table may be on an application under the Jurisdiction of Courts (Cross Vesting) Act 1987.
The Cross Vesting Act 1987 (Tas) mirrors identical legislation in the other States of Australia and the Commonwealth Jurisdiction of Courts (Cross Vesting) Act 1987.
In Australia we do not yet have a national civil jurisdiction, so the cross vesting legislation was an attempt by Australian governments to develop a scheme for the exercise of civil jurisdiction across the country.
Whatever may have been the position in Australia in the past, it is clear now that a plaintiff may sue in a forum to enforce a liability in respect of a wrong occurring outside the territory of that forum on two conditions:
- the claim must arise out of circumstances which if they had occurred within the territory of the forum would give rise to a cause of action; and
- by the law of the place where the wrong occurred, the circumstances of the occurrence would give rise to a civil liability which is still continuing.
The authorities for these propositions are Breavington v Godleman (1988) 169 CLR 41, McKain v RW Miller (1991) 174 CLR 1, Stevens v Head (1992) 176 CLR 433 and John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.
The Commonwealth Service & Execution of Process Act 1992 unlike its predecessor has extended the jurisdiction of each State Supreme Court to the boundaries of the Commonwealth thus creating a single jurisdictional area.
The authorities for this proposition are Schmidt v Won (1998) 3 VR 435 at 452-454 and Flaherty v Girgis (1997) 162 CLR 538 (as to the earlier Service & Execution of Process Act 1901).
Why we don’t have a national civil jurisdiction and the problems which occurred when the High Court in Re: Wakim: ex p McNally (1998) 193 CLR 346 held that Federal Courts could not exercise non‑federal jurisdiction and therefore could only have a limited role in the cross‑vesting scheme, are really academic questions given that governments have now patched up some of the problems caused by Wakim and the Federal Court has re‑gained its corporations jurisdiction under the Corporations Act 2001 (Cth), ss 1337H – 1337R.
Anyone interested in the wider questions surrounding State courts and the development of a cooperative national scheme of civil jurisdiction could read an article entitled Autochthonous Essential by Reid Mortensen who is a reader in law at the Centre for Public International & Comparative Law at the University of Queensland. His article was published in the University of Tasmania Law Review, vol.22 No.2.
Somewhat less academic but equally excellent is the coverage of cross vesting in Cairns, Australian Civil Procedure, 5th ed., Lawbook Co 2002 at pp.17-35.
So from a practical point of view what can happen anywhere in Australia is that a plaintiff can commence proceedings in any State court which have nothing to do with the State in which the proceedings are commenced and can do so when the defendant lives or carries on business in another State.
If you are acting for a defendant and you wish to repatriate the action by bringing it home to the court in the State in which your client lives or works, what you need is an application under the Jurisdiction of Courts (Cross Vesting) Act 1987.
You make the application under the Cross Vesting Act in the court in which the proceedings were commenced in the State in which they were commenced. The test to be applied by that court in deciding whether it will cross vest the action to a court in another State is whether it is, “in the interests of justice to do so”.
The authorities for that proposition are McEntee v Connor (1994) 4 Tas R 18, Schmidt v Won (supra) and BHP Billiton Ltd v Trevor John Schultz (2004) 221 CLR 400.
Prior to BHP Billiton Ltd v Schultz it was often said that the fact that a plaintiff chose to institute proceedings in a particular State; i.e. the plaintiff’s choice of forum, was to be given significant weight in determining what was the appropriate forum for the case to be heard in.
That proposition was debunked by the High Court in BHP Billiton v Schultz. In a joint judgment Gleeson CJ, McHugh and Heydon JJ said:
“The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff’s lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff’s lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. The interests of justice are not the same as the interests of one party, and there may be interests wider than those of each party to be considered.”
Three things you must know about applications under the Cross Vesting Act are, firstly, when an action is commenced in a court in a State other than where the wrong occurred, if the case goes to trial in that State, then the procedural laws to be applied such as the Rules of Court and the Evidence Act and so on are the rules of the lex fori; i.e. the court in which the action has been brought. Secondly, the substantive law to be applied to the dispute in the action between the parties is the lex loci delicti; i.e. the law of the place where the wrong occurred. Thirdly, there is no appeal from the decision of a court on a cross vesting application (see s.13 of the Act).
So for example, if an action were commenced in Victoria for alleged defamation that occurred in Tasmania and the case went to trial it would be the Tasmanian Defamation Act 2005 that would govern the rights of the parties and the defences available to the defendant. A point less important than it was before 2005 when the Defamation Act 1959 (Tas) had codified the law and Victoria still operated under the common law rule. But other examples can be found that make the distinctions important. And, it would be the Victorian Evidence Act 2008 and the Victorian Supreme Court (General Civil Procedure) Rules 2005 that would govern the procedural aspects of the trial.
Sometimes there might be an advantage to one party or another in the procedural rules of another State, for example more liberal evidence rules or better pre trial rules as to strike out or discovery, the hearing of separate questions and so on and this could be a reason for deciding not to make an application to bring the action back to Tasmania.
The High Court decided however in John Pfeiffer v Rogerson (supra at 544) that in cross vesting applications laws about limitation periods and about all questions about the kind and amount of damages recoverable are matters of substantive law and not procedural law and thus are governed by the lex loci delicti.
So, once again, you will be using your skills as an advocate to persuade the Court to exercise a discretion in your favour. You will need to identify the factors that are likely to influence the exercise of that discretion. And remember that while neither party carries an onus of proof on a cross vesting application (Benson v Suncorp Metway Insurance Ltd  TASSC 78), the applicant for transfer carries at least a persuasive onus. The authority for that proposition is James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at .
Let us say for example you are involved in a case where the plaintiff lives and resides in Tasmania and was exposed to asbestos dust and fibre during his employment with a large well-known Australian public company whilst working for it in Tasmania. He now suffers from mesothelioma.
Let us further suppose that the plaintiff through Victorian solicitors brought proceedings against the defendant in Victoria where it has its registered office, although it maintains offices in each of the State capitals including Hobart.
The sort of factors that the defendant might identify as pointing to Tasmania as the appropriate forum in the interests of justice are:
- the place of the tort is Tasmania;
- any difficulty about questions of law to be applied would be avoided because Tasmanian law would apply to both the substantive law and the procedural law;
- the cause of action has virtually no connection with Victoria at all;
- the plaintiff resides in Tasmania;
the plaintiff is being treated in Tasmania by Tasmanian doctors and they would give evidence at the trial;
- the defendant although registered in Victoria has offices in Hobart and carries on business in Tasmania;
- the defendant has engaged a medical practitioner to examine the plaintiff and prepare a report and she practices in Tasmania;
- at trial, in addition to the plaintiff giving evidence it would be expected that members of his family and those involved in his care would also give evidence and most of those witnesses come from Tasmania;
- the cost of bringing the proceedings in Tasmania would be less than in Victoria;
- the defendant’s lawyers are located in Hobart.
The sorts of factors the plaintiff might identify as pointing to Victoria are a bit more limited, namely:
- that the defendant is registered in Victoria and its corporate headquarters are in Melbourne;
- it is conducting the litigation from its office in Melbourne and it is using solicitors in Melbourne;
- the case can be heard more expeditiously in the Supreme Court of Victoria ;
- the plaintiff’s health is such that he may not live to see the trial;
- it is envisaged that some further occupational physicians to be involved in the case will live and practice in Victoria.
So the sorts of factors that are relevant in applications under the Jurisdiction of Courts (Cross Vesting) Act 1987 may be characterised as:
- the place where the wrong occurred;
- the place of residence of the parties;
- the convenience to the parties and the witnesses;
- the law governing the cause of action, particularly any complexities in the court being called on to apply the substantive law of another place and the importance of any procedural and evidentiary advantages offered in a particular court;
- the experience of a particular court and its ability to provide an efficient and speedy trial;
- the condition of a party, for example where the life expectancy of the plaintiff is limited, thus requiring a speedy outcome.
So whichever side of the application you are on the task at hand is to identify the factors that the court considers important that can be made to be relevant to your argument.
For a useful collection of the relevant principles and supporting authorities go to Benson v Suncorp Metway Insurance Ltd  TASSC 78 and White v Motor Accidents Insurance Board  VSC 290 (an unsuccessful application to transfer from the Supreme Court of Victoria to the Supreme Court of Tasmania).
The problem is always an interesting one and from a practical point of view it is not uncommon to experience reluctance by a particular court to let go of control of an action, perhaps seeing it as some sort of acknowledgment of deficiency. In that regard I will close with the words of the High Court in BHP Billiton v Schultz where Gleeson CJ and McHugh and Heydon JJ said at :
“In the context of the Cross Vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a discretion that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. … It is not necessary that it should appear that the first court is a ‘clearly inappropriate’ forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.”
S.P. ESTCOURT QC
Derwent & Tamar Chambers