The recent decisions handed down by the Supreme Court of Victoria in Stanford Barton (a pseudonym) v State of New South Wales [2025] VSC 57 on 25 February 2025, and Sean McCormack v State of New South Wales [2025] VSC 214 on 24 April 2025, highlight the balance courts must strike between the plaintiff’s health and convenience and the broader interests of justice when determining the appropriate forum in which a matter should be heard.

Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (“the Act”) imposes a statutory obligation to transfer a proceeding if it appears to be in the interests of justice that the proceeding be determined by the Supreme Court of another State or Territory.

In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, the High Court confirmed that the test extends beyond convenience, requiring a broader, justice-orientated assessment. The High Court also confirmed that it is not necessary that it should appear that the first court is a “clearly inappropriate” forum, as it is both necessary and sufficient that, in the interests of justice, the second court is deemed to be more appropriate.

In Ewins v BHP Billiton Ltd [2005] VSC 4, and later affirmed in Christine Irwin v State of Queensland [2011] VSC 291, the Supreme Court of Victoria identified the following relevant factors when determining whether proceedings should be transferred to the Supreme Court of another State or Territory:

a) The place where the tort occurred.

b) The residence of the parties and where it is an individual, the place where he or she resides.

c) The convenience of parties and witnesses. However, this factor may not carry substantial weight given the ability to move witnesses around Australia at small expense and little inconvenience, and also because the provision of evidence by audio visual link.

d) The law governing the proceeding.

e) The experience of a particular court and its ability to provide an efficient and speedy trial, for instance a court with a particular evidentiary and procedural rules hearing particular types of case.

f) The condition or vulnerability of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.

Barton

In Barton, the plaintiff commenced proceedings in the Supreme Court of Victoria against the State of New South Wales, alleging that he was abused by a music teacher while attending Adamstown Primary School and Broadmeadows High School in New South Wales throughout the 1970s. The plaintiff brought his case against the State in both direct negligence and vicarious liability for the music teacher's conduct.

The application to transfer the proceedings from Victoria to New South Wales was based on several factors: the alleged abuse occurred in New South Wales; the State of New South Wales was the sole defendant; most witnesses resided in New South Wales; the proceedings were governed by the Civil Liability Act 2002 (NSW); and relevant records and potential inspection sites were also located in New South Wales.

The plaintiff opposed the transfer, submitting that his serious rheumatological condition would make travel difficult and participation in a New South Wales trial impractical. His treating doctor warned that attending trial outside his familiar environment could result in cognitive impairment and severe fatigue.

While the Court accepted the legitimacy of the plaintiff’s health concerns, they were not ultimately determinative. The Court noted that the plaintiff had previously travelled interstate, could access medical support in New South Wales (including via telehealth), and that modern video-link technology would mitigate any prejudice. On balance, the Court found that the strong territorial nexus to New South Wales and the location of key witnesses favoured transfer. Accordingly, the State of New South Wales’ application to transfer the proceedings was successful.

McCormack

In McCormack, the plaintiff commenced proceedings in the Supreme Court of Victoria against the State of New South Wales, alleging that he was abused whilst in three separate youth detention facilities in New South Wales throughout the 1980s and early 1990s. Similar to Barton, the plaintiff argued his case against the State in direct negligence and vicarious liability for the male and female officers’ conduct.

The plaintiff claimed significant injuries arising from the alleged abuse, including Post-Traumatic Stress Disorder, Heroin Use Disorder, Social Anxiety Disorder, Claustrophobia, and Recurrent Major Depressive Disorder. The plaintiff was living in a supported housing complex in Victoria and under a fragile mental health regime.

The plaintiff's expert forensic psychiatrist produced a report to the Court emphasising that relocation or travel to New South Wales would risk serious decompensation. The Court found the “evidence concerning the personal circumstances of the plaintiff presently to demonstrate a consideration of very great and practically decisive weight”. The Court rejected the State of New South Wales’ claim that temporary accommodation in Sydney would alleviate the risks highlighted to the Court. Unlike in Barton, the State of New South Wales could not point to any clearly identified liability witnesses, and the Court placed little weight on the location of institutional records given the availability of electronic disclosure.

The State of New South Wales’ application to transfer the proceedings failed.

The recent decisions in Barton and McCormack confirm that the “interests of justice” test under the Act is not applied mechanically. While factors such as the location of the alleged tort, governing law, and presence of witnesses will often support an application to transfer proceedings to the defendant’s local jurisdiction, those factors alone can be outweighed where the plaintiff’s personal circumstances are supported by clear, persuasive medical evidence.

Please contact our Insurance team if you require assistance identifying or managing any of the issues discussed above.