Applicant v Respondent

2 The proceeding arises out of the plaintiff's admission to the defendant's hospital on or about 28 August 2008 for surgery and the administration of an anaesthetic. The defendant's hospital is located in Berri, South Australia. Pursuant to a writ and statement of claim dated 26 May 2010, the plaintiff alleges that the defendant was negligent in carrying out the operation and that by reason of that negligence, she suffered a tracheal rupture and a psychiatric reaction to the tracheal rupture. She claims damages for loss of income and earning capacity.

3 Section 5(2)(b)(iii) of the Act provides:

(2) Where:

(a) a proceeding (in this sub-section referred to as the 'relevant proceeding') is pending in the Supreme Court of a State or Territory (in this sub-section referred to as the 'first court'); and

(b) it appears to the first court that -

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

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

4 Hence, if it appears to the first court that it is in the interests of justice that the proceeding be determined by another designated court, there is a statutory requirement to exercise the power of transfer. It is not necessary that the first court be a 'clearly inappropriate' forum: 'It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.'[1]

5 The defendant contends that it is in the interests of justice that the proceeding be transferred to the Supreme Court of South Australia. It submits that the place of the tort is fundamental to determining where the interests of justice dictate that the proceeding be heard. The injury occurred in South Australia. Moreover, the plaintiff resides in South Australia, the defendant carries on its business in South Australia, the governing law is the law of South Australia and many, if not most, of the potential witnesses reside in South Australia.

6 The defendant says that the only genuine connection with the State of Victoria is the address of the plaintiff's solicitors. There is no evidence that the plaintiff's solicitors would be precluded from representing her in South Australia.

7 If the proceeding is transferred to the Supreme Court of South Australia, it will be heard in Adelaide. If it remains in the Victorian Supreme Court, it will be heard in Mildura.

8 The defendant relies on three affidavits sworn by Michael Bruce Holcroft on 9 July, 27 July and 3 August 2010 respectively, and an affidavit sworn by Joanne Cliff on 3 August 2010. These affidavits, relevantly, refer to the whereabouts of witnesses, including the principal witnesses involved in the surgery and potential witnesses who previously treated the plaintiff for psychiatric illness in South Australia, and to the availability to the plaintiff of the South Australian 'Litigation Assistance Fund'.

9 In his first affidavit, Mr Holcroft deposes to the following facts in support of the defendant's application:

(a) Dr Barry Trewren was the anaesthetist who undertook the operation and his address is 5 Gilbert Street, Berri, South Australia;

(b) The defendant may seek to join Dr Trewren to the proceeding;

(c) The anaesthetic nurse is resident in South Australia;

(d) The defendant may seek to call other persons who were present during the performance of the operation on the plaintiff who are believed to be residents of South Australia;

(e) The defendant is incorporated in South Australia and its place of business is in South Australia;

(f) The laws of South Australia will apply to the allegations made by the plaintiff in the proceeding, namely the Civil Liability Act 1936 (SA).

10 In his second affidavit, Mr Holcroft deposes to the following:

(a) The plaintiff's address is 129 Thurk Street, Renmark, South Australia;

(b) The plaintiff has been admitted on at least eight occasions to a psychiatric hospital in Eastwood, a suburb of Adelaide;

(c) The particulars of injuries claimed by the plaintiff include a psychiatric condition;

(d) The discharge summaries of the psychiatric hospital reveal that at least five or six medical practitioners are residents of South Australia and it is likely some of the practitioners listed would be potential witnesses at any trial in the proceeding.

11 In opposing the defendant's application, the plaintiff relies on the affidavit of her solicitor, Mr Shane Ryan, sworn 3 August 2010, in which he deposes that:

(a) While the plaintiff currently lives in Renmark, her husband lives in Griffith, New South Wales, and she and her children will be moving there in the next few weeks. They plan to remain there indefinitely;

(b) He was retained as the plaintiff's solicitor after the plaintiff had unsuccessfully tried to engage a lawyer locally. Mildura is one of the nearest major centres to Berri, where the cause of action arose;

(c) The plaintiff has limited financial means and he has taken the plaintiff's case on a 'no win-no fee' basis;

(d) He has been instructed to apply for Law Aid, which helps Victorian solicitors taking on pro bono and no win-no fee civil cases by paying approved disbursements. He has been informed that the plaintiff will be eligible for Law Aid even though she lives outside of Victoria, if the litigation is in Victoria;

(e) Law Aid, if granted, will cover disbursements other than counsels' fees. Disbursements are likely to be in the range of $75,000 to $100,000 for a two week trial, and medical reports are likely to be in the vicinity of $15,000 to $20,000;

(f) He has retained three Victorian medical experts;

(g) He has practised in the Mildura region for more than 20 years as a personal injuries practitioner and has extensive experience of the 'Mildura court system'. He is confident that the proceeding could be listed in the next Civil Circuit of the Court in 2011.

12 In response to Mr Ryan's affidavit, the defendant relies on the affidavit of Joanne Cliff. Ms Cliff deposes that in South Australia, individuals who are not able to pay legal expenses can apply to the Litigation Assistance Fund for assistance with legal costs and disbursements. The Fund assists with personal injury claims, including professional negligence claims. A merit and means test applies. Enquiries made by Ms Cliff of the manager of the Litigation Assistance Fund revealed that pursuant to r 6 of the Fund's rules, it will fund an interstate plaintiff if a claim arose in South Australia whilst the plaintiff was living in South Australia, but only if the action is issued in South Australia. Ms Cliff submits that if the proceeding were transferred to South Australia, the plaintiff would be at liberty to apply to the Litigation Assistance Fund for funding of legal costs and disbursements.

13 The plaintiff concedes, as she must, that the place of the tort is South Australia and the relevant personal injury law is the law of South Australia. Moreover, it is common ground that the plaintiff resided in South Australia at the time her cause of action arose and that she still resides there, although she intends to move to southern New South Wales shortly.

14 However, the plaintiff submits that it is not in the interests of justice to transfer the proceeding to the Supreme Court of South Australia for two principal reasons: the first reason is related to her financial position and her ability to effectively prosecute her case; the second is based on the geographic advantage enjoyed by Mildura as a central and convenient location for the trial.

15 Much emphasis was placed on the fact that the plaintiff has limited means, but has been able to find a solicitor in a regional centre reasonably close to where she currently lives and much closer to where she is going to be living who is prepared to act for her on a 'no win-no fee' basis. Her solicitor is experienced in personal injuries litigation and is confident that the plaintiff will obtain assistance from Law Aid to cover disbursements in the proceeding, as long as the proceeding remains in Victoria. Notwithstanding the material exhibited to the affidavit of Joanne Cliff, the plaintiff's ability to prosecute her case in South Australia is less certain. It is submitted that there are real prospects that the plaintiff will be prevented from prosecuting her case if the proceeding is transferred to Adelaide.

16 As to the 'geographical advantage' of Mildura, the Court was provided with a map of south-eastern Australia showing the relative positions of Berri, the place of the tort, Mildura, the place where the proceeding will be heard if it is not transferred, Adelaide, where a South Australian proceeding would take place, Griffith, where the plaintiff and her husband will be residing at the time of the trial, and Melbourne, where the plaintiff's expert witnesses are located. The map graphically illustrates the proximity of Berri to Mildura. Berri is closer to Mildura than Adelaide. Furthermore, Griffith is much closer to Mildura than to Adelaide. Mildura is the closest Supreme Court to the place where the plaintiff's injuries occurred, to where the defendant carries on its business, to where the plaintiff will be living at the time of the trial and to where many, if not most, of the witnesses live and work.

17 The principles applicable to an application under s 5(2)(b)(iii) of the Act were set out by the High Court in BHP Billiton Ltd v Schultz.[2] That case involved a claim brought by a resident of South Australia in the New South Wales Dust Diseases Tribunal for damages arising from an asbestos-related disease said to have resulted from the plaintiff's exposure to asbestos while working in South Australia. The majority held that the interests of justice required the proceeding to be transferred to the Supreme Court of South Australia. The lex loci delicti was South Australia, and the courts of that State provided the forum which gave effect to the reasonable expectation of the parties and to the policy manifested in the transfer provisions of the cross-vesting legislation. As the lex fori would coincide with the lex loci delicti, the classification of a relevant provision as substantive or procedural would not be in issue. To a significant degree, the witnesses at the trial would come from South Australia and the appellate procedures in that State had a more generous scope for the appellant than those in New South Wales.

18 In James Hardie & Co Pty Ltd v Barry,[3] Spigelman CJ said that in the context of administering the co-operative national scheme in the Jurisdiction of Courts (Cross-Vesting) Act, where the place of the tort and the residence of the parties coincide, this would generally be determinative of the issue of the 'appropriate court', although other factors may need to be assessed in the process of determining where the interests of justice lie. [4]

19 In Ewins v BHP Billiton Ltd,[5] Gillard J reviewed the authorities in an application by BHP for a personal injuries proceeding to be transferred from the Supreme Court of Victoria to the Supreme Court of South Australia pursuant to s 5(2)(b)(iii) of the Act. His Honour helpfully summarised the factors that the courts have considered to be relevant to determining whether the interests of justice require the proceeding to be transferred:

(i) In a tort case, the place where the wrong occurred.

(ii) Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.

(iii) The convenience to the parties and witnesses. However in this day and age this factor may not carry substantial weight, because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because of the provision of evidence by audio visual link.

(iv) The law governing the proceeding.

(v) The experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with particular evidentiary and procedural rules relating to particular types of cases.

(vi) The condition of a party, for example, in a personal injury case where the life expectancy of the plaintiff is limited requiring a speedy outcome.[6]

In summary, what is the appropriate court is the natural forum based upon connecting factors. The preponderance of connecting factors in any particular case with one forum identifies that forum as the natural forum but there may be a significant connecting factor to another forum which may swing the balance to the competing forum.[7]

21 In this case, there is plainly a strong connection with the State of South Australia. The tort occurred there, the defendant carries on business there, the plaintiff currently resides there, and many of the witnesses are located there. The governing law is the law of South Australia.

22 In Schultz, Callinan J was part of the majority that held that the South Australian court was the 'natural forum'. His Honour referred to the jurisdiction in which the tort was committed, to the presence of the parties in the jurisdiction, and to proximity to the courts reducing inconvenience and expense, before continuing:

But of at least equal importance to all of these is the fact that the events giving rise to the claim were at the time subject to, and regulated by the law of the jurisdiction where they occurred, and in respect of the evaluation of which the court of that place should be the most experienced and efficient. One relevant law will usually be the law relating to insurance. Policies are likely to have been implemented on the basis of the law there relating to damages, remedies, court and appeals. In other ways also, with respect, for example, to relations between employers and employees, the revenue laws and commercial laws, and compliance with safety and environmental standards, it may be assumed that the parties have organised their affairs with an eye to the State laws governing them. The parties' reasonable expectation would almost certainly be that in the event of a dispute about any of these matters, it would be resolved according to those laws as interpreted and applied by the court of that State.[8]

23 The fact that South Australian law will apply at trial is plainly an important consideration.

24 However, the answer must lie in the overall justice of the situation and each case must be considered on its merits. The evidence before me was that after some difficulty, the plaintiff has succeeded in finding a solicitor in a regional centre near to where she lives and near to where the tort was committed who is prepared to assist her on a no win-no fee basis. This solicitor is doing his best to ensure that she has the benefit of funds to pay for disbursements through the Law Aid scheme and to have the matter listed for hearing in the next civil circuit in 2011. This is an important factor, because it has enabled the plaintiff to bring her cause of action. Having regard to this factor does not involve any presumption in favour of the plaintiff's choice of forum; it simply recognises that the particular circumstances in which the plaintiff finds herself in this case are relevant to determining where the interests of justice lie.

25 It is true that the only direct connection to Victoria is the plaintiff's solicitor. However, it plainly makes geographical sense for the trial to take place in Mildura. Although the defendant has raised the prospect of a number of witnesses being located in Adelaide, they are persons who were apparently involved in the provision of psychiatric care to the plaintiff some time in the past. Although the plaintiff has particularised a psychiatric injury arising from the physiological injury that she suffered during surgery, the relevance of any evidence that might be able to be given by these witnesses remains uncertain.

26 For her part, the plaintiff has informed her solicitor that she will be moving to Griffith within the next few weeks and that it is her current intention to remain there for the foreseeable future. Her husband already lives there, and it is likely that he will need to be called as a witness. Mildura will be a much more convenient forum for her and her husband than Adelaide. Moreover, Mildura is convenient as the venue for the trial for a number of the witnesses, particularly the important witnesses who attended upon the plaintiff during surgery and post-surgery.

27 Although I have no doubt that the Supreme Court of South Australia would be able to hear the plaintiff's case expeditiously and efficiently, and the plaintiff may be able to obtain financial assistance from the relevant South Australian scheme to assist her with the litigation, the requirement to transfer the proceedings to Adelaide introduces a real element of uncertainty for the plaintiff. It is uncertain whether her solicitor would be prepared to act for her in Adelaide; her prospects of obtaining financial assistance for litigation in South Australia are equally uncertain. She may well be discouraged from prosecuting her cause of action if she has to start afresh to secure the assistance that she needs.

28 The fact that the relevant laws are the laws of South Australia should be no barrier to the proper administration of justice in this case. Judges of the Supreme Court of Victoria are practised in applying the laws of other jurisdictions, including South Australia. Moreover, other than naming the relevant South Australian statute governing personal injuries litigation, no submission was made that the matters alluded to by Callinan J in Schultz would have a particular bearing on the conduct and determination of the proceeding.

29 I do not consider, therefore, that it is in the interests of justice that the proceeding be transferred to the Supreme Court of South Australia.

30 The defendant's application is dismissed, with costs.

[1] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, 421.

[2] [2004] HCA 61; (2004) 221 CLR 400 ('Schultz').

[3] [2000] NSWCA 353; (2000) 50 NSWLR 357.

[5] [2005] VSC 4.