Background
Jimmy Kaponikolos sued the State of Victoria in the NSW Supreme Court, alleging sexual abuse by a teacher while he attended Deepdene Public School in Victoria. He alleged the abuse began in year 4, continued until high school, occurred at the school and later at the teacher’s home, and caused continuing psychological injury.
The plaintiff alleged that the State failed to protect students, including by failing to prevent or respond adequately to alleged paedophilic misconduct and to establish effective complaint and safeguarding systems. The State had not entered an appearance, but its Melbourne lawyers advised that the Supreme Court of Victoria was the more appropriate forum. The plaintiff then sought a transfer under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).
The Court’s Holding
Justice Sirtes ordered that the proceeding be transferred to the Supreme Court of Victoria under s 5 of the cross-vesting legislation, with no order as to costs. The applicable provision required transfer where the interests of justice made another State Supreme Court the appropriate forum; it was not a discretionary choice once that conclusion was reached.
Victoria was plainly the natural and more appropriate forum. The alleged tort occurred entirely there, the plaintiff lived there, and the defendant was the State of Victoria. Victorian substantive law would govern the tort claim in any event; transfer would also avoid the split that would arise if NSW procedural law governed proceedings while Victorian law governed substantive issues.
The Court found no countervailing factor. It gave no particular weight to the original NSW filing, especially because the plaintiff himself sought transfer. The only NSW connection was the location of the plaintiff’s solicitors in Wollongong, which the Court held did not justify commencing the claim in NSW.
Key Takeaways
- Cross-vesting transfer is mandatory once the interests of justice establish that another State Supreme Court is the more appropriate forum.
- In a personal-injury tort claim, the place of the alleged tort and the plaintiff’s residence are significant connecting factors.
- Where substantive law is governed by the place of the tort, transfer may avoid an unnecessary substantive-law/procedural-law divide.
Why It Matters
The decision illustrates the practical force of Australia’s cross-vesting regime in tort litigation. A claimant’s choice to file in a particular State does not outweigh strong connecting factors pointing to another forum.
It also underscores the need for practitioners to address jurisdiction before filing. The Court sharply criticised the commencement of this Victorian claim in NSW where the solicitors’ location was the sole NSW connection.