District Court New South Wales

• Medium Neutral Citation: Bentley v Dr Nguyen [2014] NSWDC 231
• Hearing dates: 12 December 2014
• Decision date: 12 December 2014
• Jurisdiction: Civil
• Before: Gibson DCJ

Decision

(1) On the application of the defendants, the hearing date of 2 February 2015 is vacated.

(2) Costs thrown away by reason of the vacation of the hearing date, and costs of the Notice of Motion, are reserved.

(3) On the application of the defendants for these proceedings to be transferred to the Sydney Registry for case management, these proceedings are listed before Gibson DCJ at 9:30am on Thursday 18 December 2014 for the purpose of referral to an appropriate case management list, if possible.

(4) Note the parties are to give consideration to concurrent evidence by the five dental experts retained by the plaintiff and defendants, including the preparation of list of issues agreed and issues in dispute, and that the parties should be in a position to advise Gibson DCJ on 18 December 2014 what their respective experts position is as to the suitability of the dental issues for a conclave.

• Catchwords: PRACTICE AND PROCEDURE - urgent application to vacate hearing date and transfer proceedings from Newcastle to Sydney registry - parties and subject matter have no connecting factors to Newcastle - proceedings listed for hearing on second occasion the matter came to court - complex dental medical negligence action requiring 5 day plus fixture - whether further case management, including concurrent evidence, required - whether speedy trial advantage outweighed other factors - hearing date vacated and proceedings transferred to Sydney registry
• Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
• Cases Cited: Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) [2010] HCA 1; Mallegowda v Sood [2013] NSWDC 98; Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370
• Texts Cited: -
• Category: Interlocutory applications
• Parties: Plaintiff: Katrina Bentley; First Defendant: Dr Peter Nguyen; Second Defendant: Dr Medhat Melek; Third Defendant: South Eastern Sydney Local Health District
• Representation: Plaintiff: Ms S Posniak (solicitor); First Defendant: Ms A Brown (solicitor); Second and Third Defendants: Mentioned by Ms A Brown; Plaintiff: Catherine Henry Partners; First Defendant: Meridian Lawyers; Second Defendant: Tresscox Lawyers; Third Defendant: Crown Solicitor's Office (NSW)
• File Number(s): 2014/84447
• Publication restriction: None

Judgment

1 By notice of motion filed today (12 December 2014), the defendants seek orders as follows:

(1) Proceedings removed from the Newcastle Hearing list for the two weeks commencing 2 February 2015;

(2) Proceedings transferred to the Sydney Registry;

(3) No order as to costs;

(4) Any other orders that the Court deems fit.

2 These proceedings were commenced by way of Statement of Claim filed on 18 March 2014 in the Newcastle Registry. The claim is for professional negligence by a dentist, a medical practitioner and a hospital in relation to dental and medical treatment. The plaintiff required extensive treatment for her dental problems, which included hospitalisation, but pleads that she has suffered a major depressive episode. Ms Posniak advised the court that the plaintiff, by reason of these problems, wanted the proceedings over as soon as possible, was very distressed at the potential loss of the hearing date, and opposed the vacating of the hearing date and transfer of the proceedings to Sydney.

3 These proceedings have had a very quick history since their commencement. They had only been listed before the registrar on one occasion, a pre-trial conference on 1 May 2014, before they were set down for hearing at a status conference on 25 September 2014. The parties told me that when they attended the Status Conference, they had really only wanted a timetable for an informal settlement conference at that conference, but that the court wanted the matter listed for hearing as soon as possible. Accordingly the following orders were made:

(1) The parties participate in a settlement conference before 28 November 2014; and

(2) The matter listed for hearing in the sittings commencing 2 February 2015.

4 A settlement conference was held on 11 November 2014 but did not resolve the matter. As the four parties to the litigation are calling five dental experts between them and the issues are complex, this is perhaps not surprising.

5 The first issue is whether these proceedings should be in the Newcastle registry at all. The plaintiff resides in Engadine. The first defendant's business is located at Padstow. The second defendant's business is located at Engadine. The third defendant operates the St George Hospital and Sutherland Hospital. In summary, all parties involved in this litigation either reside or work in the Sydney metropolitan area. Further, out of the nine expert witnesses, only one expert, a Mr Anthony Cardew, a medical physicist, resides in Newcastle. The other expert witnesses are located in the Sydney metropolitan area.

6 The second issue is whether these proceedings are in fact able to be heard in the February 2015 sittings. The parties were surprised that the note on the file indicated a 1 - 2 day estimate, as there are five dental experts, two psychiatrists, four parties and several other lay witnesses. The parties say that this is a 5-day plus case, even if there are orders made for concurrent evidence by the dental experts. I have checked the listings for February 2015 to see if this 1 - 2 day estimate appears, but the estimate given on JusticeLink is for 15 minutes, which is clearly an error. While it would be difficult for a case of this length and complexity to be conducted in the rolling list, I am sure every effort would be made to do so. Length and complexity are increasingly common features of litigation, and parties in country listings have to expect that matters of this kind will increasingly be listed there.

7 The real problem is, however, that these proceedings require some case managing of the expert evidence, such as concurrent evidence and notices to admit facts. I have encouraged the parties to talk this issue over with their respective experts and the counsel briefed in these proceedings, as it appears not to have been raised before.

8 This brings me to the question of whether the proceedings should be transferred to Sydney in circumstances where this must cause the vacating of the trial.

9 Courts are aware of the problems and expense caused by change of venue applications, particularly if they occur shortly before a hearing. In Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370 McCallum J said at [25] - [27]:

"[25] It may be accepted that the case has the features of one which could properly, and perhaps ought to, have been commenced in the District Court. The principal difficulty I have with the application lies in its timing and the circumstances in which it is brought. The defendant came to this list having complied with the timetable and ready to take a hearing date. I have ascertained that dates are available early in the new year.

[26] Conversely, the plaintiff came to court in breach of the timetable seeking, in addition to the transfer order, further opportunities to take additional interlocutory steps which would face the provisions of the new practice note if the proceedings remain in this court. One potential consequence of the orders sought by the plaintiffs would be to render wasted some of the defendant's costs to date. Further, it seems inevitable that transfer of the proceedings at this stage would occasion further delay in circumstances where the plaintiffs have already been the authors of some delay: cf ss 58(2)(b)(ii), (iv), (v) and (vi) of the Civil Procedure Act.

[27] In the unusual circumstances of this case, while the case is one which ordinarily would be readily amenable to a transfer order, I have concluded that the dictates of justice require that the proceedings remain in this court and be listed for hearing promptly, as sought by the defendant."

10 The costs burden caused by applications for changes of venue are considerable. In the present case, there is not only the cost of the vacated hearing, but the added case management that must now take place. While it would not be correct to call such an application "forum-shopping", having regard to the High Court's strictures on the use of such a term in Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) [2010] HCA 1 at [121], the choice of a particular registry, or an application to move to another registry, of the District Court, may be motivated by reasons other than a disinterested desire in having the proceedings heard in accordance with the requirements of s 56 Civil Procedure Act 2005 (NSW), and courts must be vigilant to ensure that parties do not burden their opponents, or the courts, by commencing in inappropriate registries, bringing late or multiple applications to move from one registry to another, or by using more than one registry from which to conduct proceedings (Mallegowda v Sood [2013] NSWDC 98 at [39] - [44]). Courts must be especially vigilant where an application of this nature is made with less than one day's notice to the opposing party (this matter was listed at very short notice to the plaintiff, late last night).

11 The relevant factors are as follows:

(a) There is no link between the subject matter or parties in these proceedings and the Newcastle registry.

(b) A transfer to the Sydney registry would give the parties time to consider case management issues such as concurrent evidence.

(c) In their present form, if the five dental experts have to give evidence one after another, the hearing would take up most of the Newcastle registry's February list as a 5-day plus matter, which could result in other hearings being not reached. Alternatively, other hearings could have priority and these proceedings would not be reached.

(d) The parties' position on costs can be reserved, so as to ensure there is a proper inquiry into any relevant costs factor at a future date.

12 I have considerable sympathy for the plaintiff, who is reportedly very distressed at the application to vacate the hearing date; it is for her benefit that I have prepared these short reasons for the orders set out below. However Ms Posniak, who appeared on her behalf, has taken a sensible and proactive approach to the proposed vacating of the hearing date as an opportunity to follow up missed opportunities for reconsideration of the expert evidence, including recently received reports which she says will require further answer. I am confident that, if the proceedings are transferred to the Sydney registry, the court will do its best to provide the parties not only with the earliest convenient hearing date but case management to ensure that the evidence is presented and analysed in the most efficient manner.

Orders

(1) On the application of the defendants, the hearing date of 2 February 2015 is vacated.

(2) Costs thrown away by reason of the vacation of the hearing date, and costs of the Notice of Motion, are reserved.

(3) On the application of the defendants for these proceedings to be transferred to the Sydney Registry for case management, these proceedings are listed before Gibson DCJ at 9:30am on Thursday 18 December 2014 for the purpose of referral to an appropriate case management list, if possible.

(4) Note the parties are to give consideration to concurrent evidence by the five dental experts retained by the plaintiff and defendants, including the preparation of list of issues agreed and issues in dispute, and that the parties should be in a position to advise Gibson DCJ on 18 December 2014 what their respective experts position is as to the suitability of the dental issues for a conclave.

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Decision last updated: 12 December 2014