Supreme Court New South Wales

• Medium Neutral Citation: Reid v Wright [2012] NSWSC 1149
• Hearing dates: 17 October 2011
• Decision date: 25 September 2012
• Before: McCallum J

Decision

Proceedings transferred to the Supreme Court of Queensland

• Catchwords: PRACTICE AND PROCEDURE - proceedings commenced in the Supreme Court of New South Wales - application by defendants to have proceedings transferred to the Supreme Court of Queensland - whether in the interests of justice to transfer proceedings - proceedings transferred
• Legislation Cited: Civil Liability Act 2002 (NSW); Civil Liability Act 2003 (Qld); Jurisdiction of Courts (Cross Vesting) Act 1987; Limitation Act 1969 (NSW); Limitation of Actions Act 1974 (Qld); Personal Injuries Proceedings Act 2002 (Qld); Uniform Civil Procedure Rules 2005, rule 44.5(b)
• Cases Cited: Bankinvest AG v Seabrook (1988) 14 NSWLR 711; BHP Billiton Limited v Shultz [2004] HCA 61; (2004) 221 CLR 400; British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230; British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83; Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
• Category: Interlocutory applications
• Parties: Dillon Thomas Reid by his tutor Hannah Foster (first plaintiff); Hannah Foster (second plaintiff); Dr Thomas Wright (first defendant); Ramsay Health Care Limited (second defendant)
• Representation: D E Graham (for the plaintiff); J K Kirk SC (for the first defendant); M Windsor SC (for the second defendant); David Landa Stewart (for the plaintiff); Tress Cox (for the first defendant); Minter Ellison (for the second defendant)
• File Number(s): 2010/312116
• Publication restriction: None

Judgment

1 Dillon Reid suffered brain injury as a result of complications that occurred during his birth at Cairns Private Hospital in the State of Queensland. He claims damages in negligence from Dr Wright (the obstetrician and gynaecologist consulted by his mother during her pregnancy) and from the operator of the hospital. Dillon's mother claims damages for physical and psychiatric injuries allegedly suffered by her as a result of the same events.

2 The complications arose during the second stage of labour when, in layman's terms, Dillon's shoulders became stuck in the birth canal after delivery of the head, owing to his large size. The plaintiffs allege (in broad summary) that the defendants were negligent in failing to ascertain Dillon's likely size and failing to have offered an elective caesarean section or alternatively inducing labour earlier so as to avoid the risk that materialised. Dr Wright was not present during the birth and that is a further complaint against both him and the hospital. It is further alleged as against the hospital that excessive force was used during the delivery.

3 Before filing any defences in the proceedings, the defendants have each applied to have the proceedings transferred to the Supreme Court of Queensland (in the Cairns Registry) in accordance with rule 44.5(b) of the Uniform Civil Procedure Rules 2005.

Principles applicable to the present application

4 The applications are brought under s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), which relevantly provides:

Where:

(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and

(b)it appears to the first court that:

....

(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court."

5 A convenient collection of the principles applicable to such an application may be found in the judgment of Harrison J in British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83 at [25]-[27], summarised by me in Kok v Sheppard [2009] NSWSC 1262 at [10]-[14] as relevantly including the following propositions.

6 The burden of the task of determining whether it is "in the interests of justice" that the proceedings be determined by the Supreme Court of another State is to identify the "more appropriate" forum for the proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Shultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161]-[169] per Kirby J.

7 The inquiry has alternatively been characterised as requiring the Court to identify the "natural forum" for the proceedings: British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44]; Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69].

8 The determination as to the more appropriate or natural forum for the proceedings should be made "without specific emphasis in favour of the choice of forum made by the plaintiff": Schultz at [77] per Gummow J. As I accepted in Kok at [12], the High Court took care in Schultz to correct the contrary view: at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J.

9 In James Hardie & Co v Barry, Spigelman CJ expressed the view that, where the place of the tort and the residence of the parties coincide, that will generally be determinative of the issue of the "appropriate Court". However other factors, such as the governing law of the wrong, are also relevant.

10 Another relevant factor is whether the assessment of any questions arising in the litigation is dependent upon a degree of local knowledge: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 729D per Rogers AJA.

11 The Act does not confer a procedural discretion on the court in which the proceedings were commenced. If it appears to the court that it is in the interests of justice that the proceedings be determined by the Supreme Court of another State, the exercise of the power is mandated by the statute: Schultz at [14], [62].

*****

12 The plaintiffs submitted that the jurisdiction of this Court was regularly invoked. The plaintiffs now reside in New South Wales and have instructed New South Wales solicitors. On that basis, it was submitted that this was the most convenient and obvious forum in which to litigate.

13 However, the plaintiffs acknowledged that, following the decision of the High Court in Schultz, no particular significance attends the plaintiff's choice of forum: there is no onus on an applicant to show a good reason for disturbing that choice. In Valceski, Brereton J stated (at [70]): "it is only if both courts are equally appropriate that the initial choice will have significance; if one is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory."

Place of the alleged tort

14 There is no ambiguity in the present case as to the place of the alleged tort. All of the relevant conduct and events occurred in Cairns in the State of Queensland. Accordingly, to the extent that there is any difference between States as to the substantive statute law to be applied in determining such a claim, the law that governs the present claim is the statute law of Queensland, wherever the case is heard: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at [86]-[87] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

15 That includes determination as to the application of any limitation period: Pfeiffer at [100].

16 There is Queensland legislation that governs the substantive issues in the present case. The relevant statutes are the Civil Liability Act 2003 (Qld) and the Limitation of Actions Act 1974 (Qld). The defendants submitted that the existence of those statutes means that this is a case where there is a statutory regime "idiosyncratic" to one jurisdiction.

17 The plaintiffs submitted that the question of the substantive law to be applied is neutral in the present case. It was submitted that, in their relevant terms, those statutes are the same as or substantially equivalent to their New South Wales counterparts, the Civil Liability Act 2002 (NSW) and the Limitation Act 1969 (NSW). On that basis, it was submitted that the New South Wales and Queensland Supreme Courts are each equally well placed to determine the issues likely to arise in the proceedings.

18 In that context, the plaintiffs relied upon the remarks of Brereton J in Valceski at [72]. That was an application to have an equity suit in the Supreme Court of New South Wales (to set aside a deed) transferred to the Family Court, also sitting in New South Wales. In that context, his Honour described the fact that the deed was governed by the laws of New South Wales as a matter relating to "choice of law and not choice of court", noting that either court could equally apply the law of New South Wales (as to whether the deed should be set aside).

19 The position is different in the present case, since the claim is governed by the legislation of another jurisdiction. I accept, as submitted on behalf of the plaintiffs, that the Supreme Court of this State is capable of applying the relevant statutes. However, except perhaps in the case of uniform national legislation, the existence of a local statute should generally be considered a factor pointing in favour of the place of the alleged tort as the natural or appropriate forum. It is generally better that the laws of a State be construed by the Supreme Court of that State: Schultz at [248] per Callinan J.

Residence of the parties

20 The plaintiffs lived in Cairns at the time of the relevant events but have since moved to Townsend in the far north of New South Wales. Their evidence established that they have strong ties in that area, relying on the second plaintiff's partner, his parents and local medical services for substantial support in providing for the needs of both plaintiffs.

21 However, as noted on behalf of the defendants, it will be necessary for the second plaintiff to travel a considerable distance for the hearing, whether the proceedings are transferred or not. The defendants tendered a map showing that Townsend is quite close to the border of Queensland. It was accepted that, if the proceedings were not transferred, the hearing would be in Sydney (consideration was given to seeking a hearing outside Sydney but that was not pursued). Accordingly, that is a neutral factor, in my view.

22 The first defendant, Dr Wright, lives in Cairns. He adduced evidence to establish that there would be substantial disruption to his practice, and to the supply of obstetric services in Cairns, if he were required to travel to Sydney for the hearing. Dr Wright is one of only three attending obstetricians at Cairns Private Hospital. There was evidence that his absence for a period of two to three weeks would impose substantial professional and personal pressure on the other two obstetricians, who are already under considerable stress.

23 In my opinion, that is plainly a significant factor in favour of transferring the proceedings to Queensland to be heard in Cairns.

24 The plaintiffs relied upon the fact that both Dr Wright's insurer and the second defendant (the company that owns the hospital) are "resident" in New South Wales and have instructed Sydney lawyers. I do not think that is a significant factor, in light of the fact that it is the defendants that have brought the present applications and noting that those entities are both companies. The defendants pointed to the fact that the second defendant carries on business in Queensland as factor in favour of their application.

Convenience to witnesses

25 The position of witnesses is difficult in either jurisdiction. There is a large number of witnesses from New South Wales, Queensland and other States. It is clear that, wherever the hearing is held, there is going to be substantial inconvenience to a number of people.

26 On the plaintiffs' side, there are potentially nine witnesses from northern New South Wales. They include the second plaintiff's partner, who was present at Dillon's birth. His parents have provided care to Dillon and are likely to be called as witnesses on the issue of quantum. There are also five potential medical witnesses from that area. As already noted, those witnesses will have to travel whether the hearing is in Cairns or Sydney. Accordingly, that is a neutral factor.

27 However, the plaintiffs also have potentially five expert witnesses on liability and quantum who live in Sydney. There will plainly be substantial inconvenience to them if they are required. Two further experts qualified by the plaintiffs live in Melbourne and Adelaide. They will have to travel in any event but Cairns will be a longer trip than Sydney.

28 On the defendants' side, there was evidence that four women employed as midwives and nurses at Cairns Private Hospital would be required to give evidence at the hearing. In addition to the usual personal disruption of having to travel to Sydney, the evidence established that their absence would occasion considerable staffing difficulties within the Women's Health Unit at the defendant hospital.

29 Plainly, the convenience of the parties and potential witnesses gives rise to competing considerations in the present case. There will plainly be inconvenience to one party or the other wherever the proceedings are heard. A significant factor, in my assessment, is the concentration of disruption to the provision of obstetric services in Cairns. The interests of justice are not well served if its administration is seen to impose a burden on already strained health services.

Procedural considerations

30 The plaintiffs submitted that there would be substantial procedural advantages for both parties in having the matter heard in New South Wales because the proceedings will be heard in the Professional Negligence List in this Division, which has particular experience in the management of cases involving large numbers of experts. No such list exists in Cairns. However, experience tells that the management of complex expert evidence is now being approached in similar ways throughout Australia. I doubt whether any sensible proposal by the parties for the efficient determination of matters in issue between experts of like expertise would be rejected any more readily in the Supreme Court of Queensland than it would in this Court.

31 The plaintiffs further submitted that there will be unnecessary duplication of costs in the preparation of the matter if it is transferred, either because local lawyers will need to be briefed in Queensland (in which case the costs of work done to date by Sydney lawyers would be thrown away) or because Sydney lawyers will need to fly to Queensland for the duration of the hearing to conduct all interlocutory steps.

32 I do not think that is a factor that can or should deter the Court from transferring the proceedings if it is otherwise in the interests of justice to do so. The Act contemplates that proceedings commenced in a jurisdiction other than the appropriate jurisdiction will be transferred. The application of that test should not be pre-empted by the self-imposed cost of the plaintiff's first choice.

Prejudice

33 Finally, the second plaintiff submitted that she will face significant prejudice if the proceedings are transferred due to the combined effect of the pre-litigation provisions of the Personal Injuries Proceedings Act 2002 (Qld) and the Limitation of Actions Act. The proceedings were commenced in this State without prior compliance with the notice and other provisions of that Act.

34 The scheme established under that legislation is procedural and will therefore be disregarded by a New South Wales court applying the substantive law of Queensland: Hamilton v Merck & Co Inc (2006) 66 NSWLR 48 at [16]-[35].

35 The requirements of the scheme were analysed in detail in the first defendant's written submissions. It is not necessary to go to the detail of those provisions, save to observe the following matters.

36 The plaintiffs' submissions did not specify in what respect there has been non-compliance. In any event, it does not appear that any non-compliance with the three types of requirement under the Act is necessarily fatal to the pursuit of the second plaintiff's claim in Queensland.

37 I considered a similar argument in Kok at [25]-[41]. For the reasons there stated, I concluded that any disadvantage should not be considered a factor against transfer of the proceedings. The plaintiffs submitted, however, that my reasoning in that case should not apply in the present case. It was submitted that there would be irremediable prejudice to the second defendant in the present case if any non-compliance is unable to be remedied, since the consequence would be that the proceedings would be a nullity: Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 266 at [20]; Nicholls v Brisbane Slipways & Engineering Pty Ltd [2003] QSC 193. The prejudice in that event would be that the second plaintiff's claim would be statute-barred. No consideration was given to that issue in Kok.

38 The defendants responded by providing undertakings (MFI 1) waiving any reliance upon those considerations in the event that the plaintiffs are required to re-commence their claims due to non-compliance with the Personal Injuries Proceedings Act. Importantly in that context, s 31 of the Limitation of Actions Act does not operate so as to extinguish a time-barred claim. It follows that reliance upon the limitation period by way of defence can be waived: Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394. It has expressly been waived by both defendants in this case.

39 In those circumstances, I am satisfied that the prejudice apprehended by the plaintiffs is not such as will defeat the second plaintiff's claim. Accordingly, I am satisfied that it is appropriate to take the approach I took in Kok. In that case, I held (at [40]) that to accede to the plaintiff's argument would be to prefer the interests of the plaintiff over those of the defendants, to whom the reciprocal argument was equally open.

40 For those reasons, I think the alleged prejudice is properly viewed as a neutral factor.

41 The other matters considered above have persuaded me that it is in the interests of justice that the proceeding be determined by the Supreme Court of Queensland (in the Cairns Registry). It follows that I must make the order sought by the defendants. The defendants have sought their costs of the applications. If that order is pressed, it will be necessary to hear the parties as to costs.

42 The order of the Court is that the proceedings be transferred to the Supreme Court of Queensland.

 

Decision last updated: 02 October 2012