Trial venue: balancing convenience/fairness v financial position & trial dates

Clark v Ernest Henry Mining Pty Ltd [2018] QSC 253

The plaintiff brought an application for a declaration that the proceedings commenced in Rockhampton remain in Rockhampton, the defendant cross-applied for the proceedings to be transferred to Brisbane.

The plaintiff was injured in 2014 while at work with Ernest Henry Mining Pty Ltd approximately 38 km North-East of Cloncurry. The plaintiff did not live in Rockhampton, and neither did any witnesses. Similarly, the injury did not occur in the Central Region.

Rule 39 of the Uniform Civil Procedure Rules 1999 provides:
“(1) This rule applies if at any time a court is satisfied a proceeding can be more conveniently
or fairly heard or dealt with at a place at which the court is held other than the place in
which the proceeding is pending.
(2) The court may, on its own initiative or on the application of a party to the proceeding,
order that the proceeding be transferred to the other place.”

Justice Crow noted the onus was on the defendant to establish that proceeding could be more conveniently or fairly heard elsewhere and that often requires consideration of where the cause of action arose; where the plaintiff resides; together with witnesses and the expense of the parties. There was no dispute that it was more convenient for the witnesses and lawyers involved, for the trial to be in Brisbane and the extra costs associated with the trial in Rockhampton would be approximately $14,000.00 – $18,000.00. However, his Honour was persuaded that because of the personal and financial hardship being suffered by the plaintiff and the uncertainty of trial dates for a five day trial in the Brisbane Registry as opposed to the Rockhampton Registry, it was very much in the plaintiff’s interests to have the matter to remain in Rockhampton.

Crow J noted that witnesses could avail themselves of telephone video evidence under r 393 of the Uniform Civil Procedure Rules. In relation to the additional costs of the trial, his Honour noted that it was on balance financially sound to proceed at an earlier time in Rockhampton. Crow J noted that ordinarily a claim where the cause of action was not within the district would be transferred, but in this instance, it was the plaintiff’s dire financial circumstances and the current definite trial dates available in Rockhampton that favoured the claim proceeding in Rockhampton.


David Cormack – Brisbane Barrister & Mediator

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