Cross-vesting jurisdiction and transfer of proceedings

What happens when a plaintiff is injured in one State, but brings proceedings in another? In which State should the case be heard?

The common law general rule is that the place of the tort, i.e. the place where the injury or event occurred, is the governing law. This rule can, however, be displaced by statute.

Legislative framework

The relevant legislation is the Jurisdiction of Courts (Cross-vesting) Act 1987, as in force in each jurisdiction in Australia. The legislation was passed by the Commonwealth and in each of the States for the purpose of establishing a system of cross-vesting of jurisdiction to avoid inconvenience and expense that had been experienced by litigants due to jurisdictional limits in Federal, State and Territory courts.

One such function of the Act is to confer jurisdiction on the Supreme Courts of other States and Territories to hear and determine matters arising under State or Territorial law and provide for the transfer of proceedings between those courts. Section 5(2) of the Act provides for the transfer of proceedings from the Supreme Court of one State or Territory (First Court) to another Supreme Court where:

• the proceeding arises out of, or is related to, another proceeding in the Supreme Court of another State or Territory and it would be “more appropriate” for that other court to determine the proceeding (s 5(2)(b)(i));
• if a proceeding is pending in a court that has jurisdiction solely because of cross-vesting and in the “interests of justice” it is “more appropriate” to determine the proceeding in another court (s 5(2)(b)(ii)); or
• it is otherwise in the “interests of justice” that the proceeding be determined in another court (s 5(2)(b)(iii)).

Making an application

What then, if a plaintiff is injured in Tasmania but resides and commences proceedings in Victoria?

If appropriate, an application may be made by a defendant to the Supreme Court of Victoria under its counterpart of the Act, the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), to transfer the proceedings to the Supreme Court of Tasmania. The above conditions will need to be satisfied before the proceeding can be transferred in response to an application under s 5(2).

An applicant does not carry an onus of proof as such in relation to the application, rather s 5(2) imposes a statutory obligation so that where “it appears” to the First Court that in the “interests of justice” it is “more appropriate” that the proceeding be determined by the Supreme Court of another State or Territory, the First Court is required to make orders transferring the proceeding to that other court. That is, once the relevant conditions are met, the First Court is obliged to transfer the proceeding to the appropriate court (see BHP Billiton Limited v Schultz (2004) 221 CLR 400).

Unless it so appears, the First Court does not have power under the Act to transfer the proceeding, so that, for instance, a court cannot transfer a proceeding merely because the parties consent to the transfer (see Wang v Yun [2025] NSWSC 505). The Court must consider whether it appears that it is in the interests of justice to do so. It may be said then that the applicant carries at least some onus of persuasion (see Christine Irwin v State of Queensland (2011) VSC 291).

Relevant factors

In determining which court is more appropriate to hear and determine the dispute, relevant factors have been identified as follows:

• The place of the tort, i.e. the place where the wrong occurred;
• The place or places where the parties reside or carry on business. In this regard, if the plaintiff resides in one area and the defendant in another, it is ordinarily the location of the defendant that is important to establish jurisdiction;
• The condition of a party, for example, the circumstances of a plaintiff in a personal injury case;
• The place or places where witnesses reside;
• Other matters of convenience and expense, i.e. whether a viewing of the area or any plant or equipment is required;
• The law governing the relevant transaction;
• The law governing the proceeding;
• The experience of a particular court and the procedures available in the different courts; and
• A court’s ability to provide an efficient and speedy trial, i.e. the likely hearing dates in the different courts.

Takeaways

The above is not an exhaustive list of relevant factors to be considered and each case and the weight given to each factor will depend on its own particular facts. As a general rule, however, in a claim for damages for personal injury, significant weight is usually given to the place of the tort and the location of the parties (see Christine Irwin v State of Queensland (2011) VSC 291).

For a transfer to be ordered, there must be some factor connecting the proceeding to the court to which it is proposed the matter is transferred. The Court must consider and weigh relevant factors in determining which is the “more appropriate” court for the determination of the matter and whether the transfer is in the interests of justice.