Whitelum v The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland [2018] NSWSC 51

Whitelum v The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland [2018] NSWSC 51

Although the alleged tort occurred in Queensland and Queensland law was to be applied, the plaintiff's mental health evidence, her express aversion to travelling to Queensland, her caring and living circumstances, and the risk that transfer could impede or cause discontinuance of the proceedings outweighed the benefits of having the matter heard in Queensland. The interests of justice therefore did not require transfer, and the motion was dismissed.

Jurisdiction
Australia
Judgment Date
02 February 2018
Procedural Posture
Application to Transfer Proceedings Under Cross Vesting Legislation in Negligence Personal Injury Proceedings / Notice of Motion Filed by the Defendant Seeking Transfer From the Supreme Court of New South Wales to the Supreme Court of Queensland
Outcome
Motion dismissed.
Legal Topics
['transfer of Proceedings' 'interests of Justice' 'appropriate Forum' 'psychiatric Injury' 'historical Institutional Abuse' 'vicarious Liability']
['civil Procedure' 'cross Vesting' 'personal Injury' 'negligence'] ['transfer of Proceedings' 'interests of Justice' 'appropriate Forum' 'psychiatric Injury' 'historical Institutional Abuse' 'vicarious Liability']

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Procedural Posture

Application to Transfer Proceedings Under Cross Vesting Legislation in Negligence Personal Injury Proceedings / Notice of Motion Filed by the Defendant Seeking Transfer From the Supreme Court of New South Wales to the Supreme Court of Queensland

Legal Issues

  1. 1 ['Whether the proceedings should be transferred from the Supreme Court of New South Wales to the Supreme Court of Queensland pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).' 'Whether the interests of justice made the Supreme Court of Queensland the more appropriate forum where the alleged abuse occurred in Queensland and Queensland substantive law applied.' "Whether the plaintiff's psychiatric condition, aversion to travelling to Queensland, caring responsibilities, and ability to participate in the proceedings outweighed the connecting factors favouring Queensland."]

Ratio Decidendi

Although the alleged tort occurred in Queensland and Queensland law was to be applied, the plaintiff's mental health evidence, her express aversion to travelling to Queensland, her caring and living circumstances, and the risk that transfer could impede or cause discontinuance of the proceedings outweighed the benefits of having the matter heard in Queensland. The interests of justice therefore did not require transfer, and the motion was dismissed.

Court Disposition

Motion dismissed.

Orders

  • ['Motion dismissed;' "The defendant pay the plaintiff's costs of and incidental to the motion;" 'The matter be listed before Garling J for further directions at 9.30am on 16 February 2018.']