In this matter Greg Walsh acted for Christine Reid who claims damages for professional negligence against her former solicitor, Diane Wright.
The proceedings were commenced by statement of claim filed in the Supreme Court Sydney on 2 August 2013. By Notice of Motion filed 30 June 2014 the Defendant, Diane Wright sought an order that the proceedings be transferred to the Supreme Court of Queensland. The application was brought pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987.
The application was heard by McCallum J. McCallum J observed that the principles to be applied in determining an application under the cross-vesting legislation was considered by the High Court in BHP Billiton Ltd v Schultz  HCA 612; (2004) 221 CLR 400.
The Plaintiff retained the Defendant between February 2008 and February 2011 to act for her in respect of a property settlement with her ex-husband. Ms Reid alleges that Ms Wright failed during that time to give advice as to the importance of instituting proceedings promptly and to take steps otherwise to protect her interests. The legal service was to be provided pursuant to the retainer were in the area of family law, which is governed principally by Commonwealth legislation. Ms Wright’s retainer was terminated in February 2011.
After the determination of the retainer a dispute arose as to the payment of Ms Wright’s fees. Ms Wright alleged that Ms Reid initially agreed to pay her fees as assessed in a “short form assessment” but that, after the assessment had been completed, she reneged. That dispute is the subject of the in the Magistrates Court of Queensland.
Her Honour noted the submission made by Mr Sheller on behalf of Ms Reid that there was significant unexplained delay in seeking a transfer. He relied upon r 44.5 of the Uniform Civil Procedure Rules 2005. Mr Curtin SC who appeared on behalf of Ms Wright contended that rules of court ought to be applied with a degree of flexibility.
McCallum J observed that the rule plainly contemplates that parties should ordinarily turn their minds to the issue of cross-vesting as soon as practicable after the commencement of the proceedings. That was not to say that it would be inevitably fatal to the success of a cross-vesting application but nevertheless it is an important matter to be taken into account.
Mr Sheller submitted to Her Honour that a cross-vesting application calls for a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.
McCallum J concluded in the interests of justice the Supreme Court of New South Wales was the more appropriate court to determine the proceedings.