Supreme Court New South Wales

• Medium Neutral Citation: Smith & Nephew Surgical Pty Ltd v Day; Smith & Nephew Surgical Pty Ltd v Dawson [2014] NSWSC 1409
• Hearing dates: 14 October 2014
• Decision date: 14 October 2014
• Jurisdiction: Common Law
• Before: Davies J

Decision

Orders re Day Proceedings (2014/256501):

1. An order pursuant to section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Cross-vesting Act) that District Court of NSW proceedings 318455 of 2012 (including the cross-claim in those proceedings) (the Day proceedings) be removed to the Supreme Court of NSW.

2. An order pursuant to section 5(1) of the Cross-vesting Act that the Day proceedings be transferred from the Supreme Court of NSW to the Federal Court of Australia.

3. An order that the costs of this application be costs in the cause of the Day proceedings.

Orders re Dawson Proceedings (2014/256510):

1. An order pursuant to section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Cross-vesting Act) that District Court of NSW proceedings 345542 of 2012 (including the cross-claim in those proceedings) (the Dawson proceedings) be removed to the Supreme Court of NSW.

2. An order pursuant to section 5(1) of the Cross-vesting Act that the Dawson proceedings be transferred from the Supreme Court of NSW to the Federal Court of Australia.

3. An order that the costs of this application be costs in the cause of the Dawson proceedings.

• Catchwords: PROCEDURE - cross-vesting - three sets of proceedings, one in the Federal Court, two in the District Court - all proceedings involving similar claims regarding injury from hip replacement - commonality of treating doctors and medico-legal experts - commonality of lawyers acting for claimants and defendants - commonality of issues - interests of justice
• Legislation Cited: Competition and Consumer Act 2010 (Cth); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW); Trade Practices Act 1974 (Cth)
• Cases Cited: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Watson v CGU Insurance Ltd (2006) FCA 1630
• Category: Interlocutory applications
• Parties: Parties re Day Proceedings (2014/256501): Smith & Nephew Surgical Pty Ltd (Plaintiff); Robyn Maree Day (First Defendant); Calvary Health Care Riverina Ltd (Second Defendant); Parties re Dawson Proceedings; (2014/256510): Smith & Nephew Surgical Pty Ltd (Plaintiff); Keith Dawson (First Defendant); Ramsay Health Care Australia Pty Ltd (Second Defendant)
• Representation: Counsel: A Payne SC & E Holmes (Plaintiff); I Roberts SC (First Defendant in each proceedings); Solicitors: Clayton Utz (Plaintiff); Walsh & Blair Lawyers (Robyn Maree Day & Keith Dawson); HWL Ebsworth Lawyers (Calvary Health Care Riverina Ltd & Ramsay Health Care Australia Pty Ltd)
• File Number(s): 2014/256501 & 2014/256510

Judgment

1 The Plaintiff in two summonses before me is a defendant in three sets of proceedings. Proceedings by Ms Denise McCarthy were commenced in the Federal Court on 26 November 2012. The present Plaintiff was joined as a cross-defendant to those proceedings on 1 November 2013 and then joined as a defendant on 7 April 2014.

2 There are then two proceedings in the District Court of NSW. In the matter of Ms Robyn Day such proceedings were commenced in the District Court in Wagga Wagga on 11 October 2012. On 11 November 2013 the present Plaintiff was joined on a cross-claim and thereafter, on 8 May 2014, was joined as a defendant. The third set of proceedings, by Mr Keith Dawson, was commenced in the District Court at Queanbeyan on 5 November 2012. On 13 November 2013 the present Plaintiff was joined as a cross-defendant in those proceedings and was subsequently named as a defendant on 16 June 2014.

3 I shall refer to Ms Day, Ms McCarthy and Mr Dawson as the claimants.

4 Each of the proceedings concerns the fitting to the claimant of a hip prosthesis. In the case of Mr Dawson and Ms McCarthy each of those Plaintiffs had both hips replaced. In the case of Ms Day only one hip was replaced. Ms McCarthy's left hip was replaced in June 2005 and her right hip in June 2008. Mr Dawson's hips were both replaced during 2007 and Ms Day's hip was replaced in January 2011. Those dates have some significance in relation to the state of knowledge of the Plaintiff and others.

5 The claims by the claimants against the present Plaintiff are similar in each case. Provisions of the Trade Practices Act 1974 (Cth) and, subsequently, Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) were pleaded. In addition, the claimants have each sued the hospital in which the operation took place. The claimants are all represented by the same solicitors. The hospitals are represented by one solicitor in common, and the present Plaintiff is represented by the same solicitors in each set of proceedings. Mr Dawson and Ms McCarthy were both operated on by the same orthopaedic surgeon. The claimants have each retained the same orthopaedic surgeon to provide medico-legal reports. There are other expert witnesses in common in the three sets of proceedings.

6 The defences filed on behalf of the present Plaintiff are very close to being identical in the Dawson proceedings and the McCarthy proceedings. There are some common defences in the Day proceedings to the other two but the Day proceedings stand out as being more distinct both in the defences that have been raised, in respect of the surgeon who operated, and from the timing of the operation. The timing of the operation is said to be significant by the claimants because of the state of medical knowledge in January 2011 as compared to such knowledge in the years 2005 to 2008 when the other operations were performed.

7 Under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) it is necessary for proceedings in the District Court to be first removed into this Court before any consideration can be given to cross-vesting to another court such as the Federal Court. The test for the removal of the proceedings from the District Court is set out in s 8 of the Act. That section relevantly provides:

(1) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in:

(i) a court, other than the Supreme Court, of a Territory; or

(ii) a tribunal established by or under a law of a Territory; and

(b) it appears to the Supreme Court of that Territory that:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Family Court, the Supreme Court of a State or the Supreme Court of another Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court of that first-mentioned Territory; or

(ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court;

the Supreme Court of that first-mentioned Territory may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to that Supreme Court.

(2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the court to which it was removed.

(3) Where a proceeding is removed to a court in accordance with an order made under subsection (1), that court may, if the court considers it appropriate to do so, remit the proceeding to the court or tribunal from which the proceeding was removed.

8 The test which appears from s 8(1)(b) is that the relevant proceedings arise out of or are related to proceedings (here) in the Federal Court.

9 I am entirely satisfied by reason of the matters that I have mentioned that the District Court proceedings are related to the proceedings in the Federal Court and I rely in that regard on what was said by Sackville J in Watson v CGU Insurance Ltd (2006) FCA 1630 at paras [14] to [16].

10 The rather different issue under s 5 is in particular whether the interests of justice require the proceedings to be cross-vested to the Federal Court. Section 5 relevantly provides:

(1) Where:

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

(b) it appears to the Supreme Court that:

(i) (Repealed)

(ii) having regard to:

(A) whether, in the opinion of the Supreme

Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court,

(B) the extent to which, in the opinion of the

Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C) the interests of justice,

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be,

(iii) (Repealed)

the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.

...

6) Where:

(a) a court (in this subsection referred to as the first court)

transfers a proceeding to another court under a law or laws relating to cross-vesting of jurisdiction, and

(b) it appears to the first court that:

(i) there is another proceeding pending in the first

court that arises out of, or is related to, the first-mentioned proceeding, and

(ii) it is in the interests of justice that the other

proceeding be determined by the other court,

the first court shall transfer the other proceeding

to the other court.

11 If it is found by this Court to be in the interests of justice to do so this Court has no discretion but must cross-vest the proceedings. I note what has been said about that section of the Act in BHP Billiton Ltd v Schultz (2004) 221 CLR 400.

12 The claimants make a number of points to resist cross-vesting at least at the present time. First, they say that this application is premature. Secondly, the claimants point to the relatively confined damages that are claimed in the District Court proceedings. They fear that cross-vesting to the Federal Court will involve them in unnecessary costs.

13 In relation to prematurity, the claimants say that the state of the evidence is such that it cannot be certain that the matters the Plaintiff's solicitor identifies as the likely issues will in fact be the issues. Those issues are set out in para 39 of the affidavit of Gregory John Williams sworn 1 September 2014. Mr Williams is the solicitor for the Plaintiff and he has some lengthy experience in matters of this type, including the conduct of class actions and product liability litigation.

14 From the material that I have had the opportunity to read there seems a reasonable likelihood that the issues that have been identified by Mr Williams will in fact be issues that are likely to be aired in each of the three proceedings. Whilst I understand the concern of the claimants that until expert evidence is available on these matters it is not certain what the issues will be, the counterbalancing factor is that it would be preferable if the proceedings could be case managed at same time and by the same judge. Case management in the District Court, particularly in regional courts, is not conducted in the thorough and extensive way as occurs in this Court and the Federal Court.

15 Even if some of the issues identified by Mr Williams in para 39 are not relevant, for example in the Day proceedings, there is already nevertheless a considerable overlap in evidence which will need to be given. This is associated with the second issue raised by the claimants. The cost savings from single case management of all three proceedings are likely to be significant.

16 Quite apart from that, it seems to me, however, that from a costs point of view the commonality of issues and witnesses already identified means that there will in fact be a cost saving, and perhaps a considerable cost saving, if all of the proceedings are heard in the same court and at the same time. If, however, the proceedings are cross-vested to the Federal Court it will be entirely in the discretion of the docket judge to decide if the proceedings should be heard together even if they are case managed together.

17 I am also informed that the earliest time that these proceedings can be heard in the District Court will be November next year. The evidence in relation to the Federal Court proceedings is that there is at least a reasonable possibility that those proceedings will be heard by September next year. The judge in the Federal Court proceedings is alive to the existence of the District Court proceedings and has himself raised the question of the crossvesting of the District Court proceedings.

18 The Plaintiff has identified ten matters which it says result in the interests of justice being served by cross-vesting to the Federal Court. I have mentioned some of these matters already. I accept the remainder of them also. In my opinion it is in the interests of justice that the District Court proceedings should be cross-vested and in those circumstances I will make orders to that effect.

19 The orders I make are these:

Orders re Day Proceedings (2014/256501):

1. An order pursuant to section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Cross-vesting Act) that District Court of NSW proceedings 318455 of 2012 (including the cross-claim in those proceedings) (the Day proceedings) be removed to the Supreme Court of NSW.

2. An order pursuant to section 5(1) of the Cross-vesting Act that the Day proceedings be transferred from the Supreme Court of NSW to the Federal Court of Australia.

3. An order that the costs of this application be costs in the cause of the Day proceedings.

Orders re Dawson Proceedings (2014/256510):

1. An order pursuant to section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Cross-vesting Act) that District Court of NSW proceedings 345542 of 2012 (including the cross-claim in those proceedings) (the Dawson proceedings) be removed to the Supreme Court of NSW.

2. An order pursuant to section 5(1) of the Cross-vesting Act that the Dawson proceedings be transferred from the Supreme Court of NSW to the Federal Court of Australia.

3. An order that the costs of this application be costs in the cause of the Dawson proceedings.

**********

Decision last updated: 21 October 2014