Written by Peter CarterNovember 23, 2021
The Court of Appeal has refused to interfere with the exercise of discretion by the Central Judge in Rockhampton as to the suitability of his court to determine a claim concerning an injury sustained near Toowoomba.
Terry and Nicole Ryan hosted their son’s 21st birthday celebration at their rural property near Jondaryan in February 2019.
Charles Dearden – one of the 200 or so guests who stayed overnight – sustained an injury when another partygoer poured petrol from a nearby fuel can, onto his swag and set it alight while he was in it asleep.Alleging negligence on the part of his hosts for failure to adequately supervise the event, Dearden – who suffered burns to his chest, armpit and back – engaged Rockhampton solicitors who filed an injury compensation claim against Mr & Mrs Ryan in the Supreme Court there in April 2021.
Their liability insurer promptly filed a Defence to the $800k claim and an application to have the proceedings transferred to Toowoomba or alternatively, Brisbane.
The application came before Justice Graeme Crow in June and was duly refused on the grounds that neither convenience nor fairness favoured a transfer to another location.
Among other things His Honour – who has previously ruled against similar transfer applications – considered a trial in Rockhampton would probably occur more quickly than elsewhere.Dissatisfied with the outcome, the insurer appealed, complaining such an assessment was unreliable given it was made many months before the action would be ready to be listed for trial.
That contention was rejected by the appeal judges.
“His Honour’s assessment was obviously premised on listing probabilities rather than certainties,” noted Justice Jim Henry in delivering the lead judgement. “As the resident judge in sole control of the Rockhampton Supreme Court list, he is well placed to assess those probabilities”.
The insurer also criticised Justice Crow’s rejection of its submission that the comparative cost of witness transport and accommodation would be higher for a Rockhampton trial than for one in Toowoomba.
His Honour had though “repeatedly explained” that the issue of witness attendance costs was something about which he “could not reach any firm conclusion”, because it was not then known which witnesses would likely be called to give evidence.
On the same grounds, he declined to accept the proposition that – because of the location of the event and the places of residence of the attendees – the majority of witnesses would be drawn from Darling Downs and Brisbane areas.
Justice Henry concurred in the rejection of those arguments.
The fact that more potential witnesses resided in SEQ didn’t mean that the majority of witnesses called to give evidence would necessarily be from that region. The logic of such ‘preponderance’ would only have been useful, he observed, if the witnesses were known and identified at the time Justice Crow had made his ruling.
The judge’s exercise of discretion was well within the bounds of reasonableness and given that it was one relating to procedure rather than to substantive rights, should only – the appeal judges agreed – be interfered with by an appellate court in the case of a substantial injustice to a party.
The onus was on the insurer to establish such injustice and having failed to do so, the appeal judges unanimously rejected its appeal.
Robert Taylor – Dearden’s assailant who pleaded guilty to grievous bodily harm and is serving a two-year suspended jail term – has been joined to the proceedings by the insurer as a third party.
Dearden filed a Request for Trial last week suggesting the trial is likely to proceed in short order at Rockhampton.