Brook v Sommerville

Transfer Application

1. On 23 November 2017, the second defendant filed a Notice of Motion seeking an order that the proceedings be transferred to the Supreme Court of Queensland pursuant to r 44.5(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") ("the transfer Motion").
2. In fact, as later became clear, the second defendant relied upon the Court's power to make such an order contained in s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("the Cross-vesting Act").
3. The plaintiff, no doubt in response to that Motion, on 29 January 2018, filed a Motion seeking orders as follows: "(a) Pursuant to UCPR [r] 8.2, the venue for the hearing of these proceedings be changed to the Northern Rivers District; and (b) The proceedings be expedited."
4. This judgment deals with those two Motions.

Factual Background

1. Much of the factual background was not in dispute. The following facts appear from the material before the Court.
2. The plaintiff is presently 63 years old and resides with her partner at Mullumbimby, which is in northern NSW. Her partner, Dr Anne Pisarski, is presently 66 years old. She has retired after a lifetime career as an academic, clinical and consultant psychologist.
3. Dr Pisarski is most unwell, and presently suffers from Lymphangioleiomyomatosis ("LAM disease"). This is a disease which is characterised by abnormal muscle-like cells growing out of control in certain organs or tissues, especially the lungs, lymph nodes and kidneys. LAM disease is considered a terminal illness, although there is no material before this Court as to the particular prognosis of Dr Pisarski. Dr Pisarski is under the care of a general practitioner in Mullumbimby, and a special respiratory physician in Sydney. The only clinic specialising in LAM disease in Australia is located at St Vincent's Hospital at Darlinghurst in Sydney.
4. Dr Pisarski is a necessary and important witness on both matters of liability and damages in the plaintiff's case. Dr Pisarski's evidence is that she has difficulty driving for any length of time due to back pain and her physical condition. She limits herself to driving for no more than 30 minutes at a time. Although she was previously cared for by medical practitioners in Brisbane, where she lived, she now prefers to fly to Sydney for her specialist medical care, both by reason of her physical health, and also by reason of the location of her LAM disease specialist.
5. The plaintiff says that since the incident in September 2015, she has been unable to manage her own finances and needs significant assistance with activities of day-to-day living involving cognition. She suffers from memory loss, poor decision-making, planning and lack of impulse control. She suffers from anxiety and depression which has become worse since September 2015, and has great difficulty in organising herself to be anywhere at a particular time or place and remembering what she is told. She relies upon Dr Pisarski for daily help in these areas.
6. The plaintiff says that she is unable to be seated in a motor vehicle for more than 30 minutes without experiencing pain and requiring significant analgesia. She is fearful of taking analgesia whilst driving because it makes her drowsy. Accordingly, she avoids driving whilst taking analgesia.
7. She presently lives in Mullumbimby where she is assisted by Dr Pisarski and Dr Pisarski's daughter and son who live in that area. Family support is available within a relatively short period of time (about 15 minutes) if required.
8. As both the plaintiff and Dr Pisarski are retired, they have a limited income stream and have a limited capacity to afford accommodation in Brisbane for any lengthy period. Accommodation in Sydney is available without charge from friends.
9. The plaintiff's witnesses on the issue of liability will consist of Dr Pisarski giving her observations as a lay person as to what she saw and heard before the plaintiff's respiratory arrest. The plaintiff's two expert witnesses on liability are Ms Fleur Gladwell, a nursing expert based in Melbourne, Victoria, and Dr Anthony Padley, a senior staff specialist anaesthetist, who is based in Sydney.
10. As well, the plaintiff has retained four experts dealing with various components of the plaintiff's claim for damages. Each of those experts is based in Sydney.
11. According to the evidence of the solicitor acting for the second defendant, her client resides in Brisbane. He is in active practice as a specialist anaesthetist, working full-time in private practice at over 10 hospitals and day surgery centres. She says that he instructs her that his work averages 60 hours per week and that a two to three week hearing outside of Brisbane would cause significant disruption "… to Dr Christie's extremely busy and well-established practice".
12. She says that Dr Christie has informed her that: "[His] working week often involves seven to nine theatre lists. In the event that [he] were not available for an extended period of time, say two to three weeks, this would significantly impact upon his secretary's ability to guarantee anaesthetic cover from within his group of anaesthetists to support all of [his] surgeons …"
13. Dr Christie is of the view, so his solicitor says, that his practice would suffer significantly as a result "… of the burden that would be placed upon his practice in the event that this matter was listed for hearing outside of Brisbane".
14. The solicitor for the second defendant has identified 15 possible witnesses who may be called in the plaintiff's case. The plaintiff did not accept that it would be necessary to call all of these witnesses. These witnesses include those already described and treating experts, both before and after the September 2015 incident. According to her enquiries, five of those witnesses reside in Sydney and five reside in or around Brisbane. One resides in Melbourne (Ms Gladwell) and four reside in the Northern Rivers region of NSW. She has been unable to determine the whereabouts of one possible witness that she has identified.
15. According to a list of possible witnesses for the second defendant, again prepared by the solicitor for the second defendant, from the report of the plaintiff's nursing expert, Ms Gladwell, most of those whose evidence would be relevant to what occurred at the hospital, either live or are likely to live in Brisbane. One of those nurses likely to be called lives in South Australia. As yet, the defendants have not retained any experts on liability or damages.
16. The evidence provided by the second defendant from his solicitor, particularly in the absence of any Statement of Defence, does not identify what issues, if any, are likely to be in dispute. The Court was not informed, for example, whether any of the factual assumptions upon which the plaintiff's experts, Ms Gladwell and Dr Padley, have based their opinions are in dispute, and whether there are any different factual assumptions which will be relied upon by the defendants. The Court was not informed whether liability was in dispute or whether there were particular limited issues with respect to liability. Equally, the question of what issues of damages will be in dispute was not articulated. This has the effect, as a matter of practical reality, of limiting the material available to the Court to take into consideration in attempting to assess where the interests of justice lie.
17. The third defendant, the Hospital, has taken a neutral position on the transfer Motion and provided no submissions nor adduced any evidence as to whether the transfer should be ordered.

Transfer Application - legal principles

1. The Cross-vesting Act provides in s 5(2)(b)(iii), relevantly, that if it appears to this Court that "… it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State …", then this Court "… shall transfer the relevant proceeding to that other Supreme Court".
2. Although the whole section is rather more complex, and provides for other alternatives as a basis for transfer, the second defendant relied upon only the provision to which attention has been drawn.
3. In Bankinvest AG v Seabrook (1988) 14 NSWLR 711, Street CJ, when describing the cross-vesting legislation, which is uniform across all States and Territories in the Commonwealth of Australia, said at 713-14: "In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the Court in which proceedings are commenced either to transfer or not to transfer the proceedings … broadly speaking, upon consideration of the interests of justice. … It calls for what I might described as 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."
4. In BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, the plurality (Gleeson CJ, McHugh and Heydon JJ) having referred to what Chief Justice Street said, added at [14]: "In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.… There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate."
5. At [15], their Honours said: "The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example costs and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality. …"
6. Gummow J at [77] noted that the reliance upon the section, here relied upon by the second defendant, requires this Court to determine a transfer application "… by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff".
7. At [248] Callinan J remarked: "In general, it is better that the laws of a State be construed by the Supreme Court of that State for the obvious reason that that court will be more familiar with, and will construe such laws on a frequent and consistent basis."
8. In applying the High Court decision in Schultz recently, Rothman J in Whitelum v The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland [2018] NSWSC 51, accepted that relevant factors would include: "43. … the relevant factors as: (1) The place of the tort; (2) The residence of the parties, or in the case of a corporation, where it carries on its business; (3) The convenience of the parties or witnesses; (4) The law governing the proceedings; (5) The experience of a court to provide an efficient and speedy trial; and (6) The condition of the parties in personal injury cases such as if the parties' life expectancy requires speedy resolution."
9. His Honour noted that this list was not exhaustive, and that the factors to be considered would vary between different proceedings.

The Relevant Law

1. Both parties accepted that the law by which the conduct of the defendants would be judged is Queensland law. In particular, issues relating to the general standard of care, causation and damages would fall to be decided by the application of the Civil Liability Act 2003 (Qld).
2. Whilst the terms of, and some of the words used in, the relevant provisions of the Civil Liability Act 2003 (Qld), differ in minor respects from the equivalent NSW law, the Civil Liability Act 2002 (NSW), neither party suggested that there was any real difference of substance between the two Acts.
3. A significant issue arose between the parties with respect to the Personal Injuries Proceedings Act 2002 (Qld) ("PIPA").
4. The main purpose of PIPA, identified in s 4, is to "… assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury". That purpose is generally achieved by promoting settlement of claims at an early stage. The way in which that settlement is promoted is by the provision of a procedure, prior to the commencement of proceedings, for the speedy resolution of claims for damages for personal injury. PIPA prohibits the commencement of proceedings in court prior to the completion of the pre-court procedures set out in Part 1 of Chapter 2 of PIPA.
5. The parties agreed that so long as these proceedings remained in NSW, even though the proper law of the Court was the Queensland law, the provisions of PIPA would not apply: see Hamilton v Merck & Co Inc; Hutchinson v Merck Sharp & Dohme (Australia) Pty Ltd [2006] NSWCA 55; (2006) 66 NSWLR 48.
6. The defendant contended, however, that if the proceedings were transferred to Queensland, having regard to the fact that they had already commenced properly in NSW, then PIPA would not be applicable. In particular, the second defendant submitted that s 18 of PIPA does not encompass the continuation of proceedings in a Queensland court in circumstances where those proceedings have commenced in a different jurisdiction in compliance with the procedure of that jurisdiction. The basis of that submission is that the defendant contended that s 18 was directed to remedying the failure to serve a notice in accordance with Part 1 of PIPA, thereby engaging the pre-court claim process. The defendant concluded by submitting that, upon transfer, the Queensland Court: "… is not tasked with deciding whether proceedings based on a claim can be started, but simply to case manage proceedings commenced in NSW.
7. No doubt, it was this view of PIPA that resulted in the second defendant not proffering an undertaking not to raise any procedural points about a failure to comply with the procedure set out in PIPA, in contrast to the position in Whitelum. Put more formally, the second defendant has not waived any compliance with the requirements of PIPA.
8. The second defendant's position appears to be in conflict with authority binding on this Court. In Merck at [93]-[95], Spigelman CJ (with whom Handley and Tobias JJA agreed) expressed the view that the content of s 18 of PIPA would apply to proceedings which had been commenced without any compliance with the pre-trial procedures. The Chief Justice noted that the terms of s 18 assume that a claimant has in fact proceeded to some degree with the claim. It seems that such an interpretation would apply to cases commenced regularly in another State and transferred to the Supreme Court of Queensland under the cross-vesting laws. At that point in time, a plaintiff would, on the Chief Justice's interpretation of s 18, be prevented from proceeding further with the claim because there had been a failure to give a complying notice of claim in accordance with Part 1 of PIPA.
9. As the Chief Justice pointed out, a plaintiff would be entitled to proceed if any of the alternatives in sub-sections (a), (b) or (c) of s 18(1) of PIPA applied. Particularly relevant here is s 18(1)(b) which enables the second defendant here to waive compliance with the requirement to give a complying Part 1 Notice of Claim. The second defendant has not done so. I note that in accordance with s 18(1)(c)(ii) of PIPA, a court may authorise a claimant to proceed further with their claim, despite the non-compliance. Such order may be made on conditions which the Court considers necessary or appropriate to minimise prejudice to the defendants. However, whether the Queensland court would give such authorisation is not a matter about which this Court can express any view.
10. Section 48 of PIPA exposes a plaintiff to an award of costs for failing to comply with the pre-court claims procedures and, also, the plaintiff may be denied interest for a part of the period upon which interest would ordinarily be granted.
11. My conclusion with respect to this issue is that an application of the provisions of PIPA in a way which compelled the plaintiff not to proceed in Queensland unless and until the pre-claim procedures had been complied with would result in a very significant delay in the proceedings in the order of a year. Such delay must be balanced with the possibility than an early settlement is reached between the parties through the application of the PIPA pre-court procedures. However, no firm conclusion can be reached about that settlement prospect.

Discernment

1. This Court is required to identify and determine whether it is in the interests of justice that these proceedings be transferred to the Supreme Court of Queensland. This requires a determination that, in the interests of justice, the Supreme Court of Queensland is the more appropriate court to hear and determine these proceedings.
2. I acknowledge, as Callinan J said in the passage set out at [35] above, that it is better that the laws of a State be construed by the Supreme Court of that State. However, the laws which apply to these proceedings, namely the law of Queensland and, in particular, the Civil Liability Act, are not in any material respect different as between NSW and Queensland. That is to say, both Courts are well able to interpret and apply the Civil Liability Act of Queensland. This is not a case in which the relevant legislation, or law, to be applied is unique to one State and not the other. Rather, it is closer to, but not the same as, the position where States have enacted a uniform law.
3. There is no doubt that the tort occurred in Queensland. At that time, the plaintiff lived in Queensland, although she now lives in Northern NSW. The second defendant lives and practices his profession in Queensland. The hospital is located in Queensland, and many of the employees reside in Brisbane.
4. The convenience of the plaintiff and her principal witness on liability and damages, by reason of their very particular circumstances, is best suited to a trial in this Court either in Sydney or else, if the Court were persuaded to sit there, in Lismore - which is a location convenient to where they live.
5. The material that suggests that the second defendant would be significantly inconvenienced if the trial was heard in this Court is unpersuasive. There are a number of reasons for this. First, in the absence of knowing what, if any, matters will be in issue, including whether liability on the part of the second defendant will be in issue, the Court cannot conclude that it is likely that the second defendant will either need to, or wish to, attend any part of the hearing of the proceedings. As those proceedings have been on foot for about six months, there seems to be no reason why the second defendant and his lawyers ought not to have reached a view as to what matters are likely to be in issue.
6. Secondly, evidence which suggested a significant financial and professional disadvantage to the second defendant by being required to attend every day at a trial in Sydney, seems on its face, equally applicable to attending a trial in Brisbane in the Supreme Court of Queensland.
7. The issue in terms of the convenience of the second defendant and the potential economic detriment to him, and perhaps professional detriment by not being able to service surgeons with whom he regularly works, is not measured by an absolute question of the interruption of his practice. Rather, the issue is: what is the relevant difference between attending a hearing in the Supreme Court of NSW, whether heard in whole or in part in Sydney or Lismore, and attending the trial in Brisbane? It seems to me to be likely that if the second defendant was in attendance during the ordinary sitting hours of both Courts, which are substantially similar, then the interruption to his practice would be the same. The evidence did not address any reason why it would be less disadvantageous in terms of interruption to the second defendant's practice with its financial consequences for the proceedings to be held in Brisbane.
8. Thirdly, the difficulties identified with arranging for cover from other anaesthetists for the second defendant seem overstated. The impression conveyed by the second defendant through his solicitor was that an absence of two or three weeks from his professional practice would not be able to be covered by his colleagues. Taken literally, as it was put before the Court, that would mean that the second defendant could not take a holiday for that period of time, or, if for some reason he was unwell, his practice would come to an end. That seems to be an overstatement. It is certainly not something that I would accept without some more persuasive evidence.
9. Accordingly, I conclude on the evidence that there has not been demonstrated to be any detriment to the second defendant which would be preferentially addressed by the transfer to the Supreme Court of Queensland, when compared with a hearing in this Court.
10. As to the issue of evidence from expert witnesses, the defendant as yet has not obtained any expert evidence on liability or damages. They have not indicated who, if anyone, they have retained to undertake that task. Given the absence of evidence about this, there is no reason to suppose that if the transfer application is refused, the second defendant could not obtain experts whose convenience would be suited by a trial in the Supreme Court of NSW.
11. Further, whilst there are undoubtedly a number of witnesses of fact who may, depending upon identification of the issues by the second defendant, be called to give evidence, there is no reason to think that their convenience cannot, if necessary, be addressed by use of AVL facilities.
12. In addition, I note that the second defendant has not given any undertaking with respect to waiving the requirements of PIPA. In my view, the requirements of PIPA, if applied, as it seems they would be, would significantly delay the progress of this case to trial. They would be costly and, given the present case management regime in the Supreme Court of NSW, would be likely to be less efficient and more expensive. This is a detriment not just to the plaintiff but to the interests of justice generally.
13. Finally, I observe that the third defendant (the Hospital) does not join in the transfer Motion. The Hospital takes a neutral position - it neither consents to the transfer nor opposes it. It does not seek the transfer and it does not resist it. In other words, I infer that from the perspective of the Hospital it is equally content for a trial to take place in the Supreme Court of NSW or the Supreme Court of Queensland. This is a matter which I am entitled to, and do, weigh in the balance in considering the interests of justice to all of the parties.
14. In light of all of these factors, I am unpersuaded that it is in the interests of justice to transfer the proceedings to the Supreme Court of Queensland. I am, on the contrary, satisfied on the material put before the Court, that this Court is the more appropriate court for these proceedings to be heard and determined.
15. The transfer application ought be dismissed.
16. This leaves the question of the plaintiff's Motion for a change of venue and expedition. It is unnecessary to address the change of venue Motion at this stage. It may in fact be more convenient for the parties to have some witnesses' evidence taken in Lismore and the evidence of other witnesses taken in Sydney. If that were the convenient course, then a change of venue to Lismore would not be the appropriate relief. Accordingly, it is appropriate stand this question over to be dealt with as a matter of ordinary case management in the course of the proceedings.
17. The plaintiff seeks expedition. The principal reason for that expedition is the state of health of Dr Pisarski, whose evidence, I accept, is of significant importance to the plaintiff's case.
18. However, expedition, if granted now, may prove disadvantageous to the defendants by reason of their current state of preparation of the proceedings.
19. As well, the plaintiff has not undertaken any enquiries about, or investigation into, a procedure for taking the evidence of Dr Pisarski on commission pursuant to Part 24 of the UCPR, having it recorded in video and sound so that if Dr Pisarski's health deteriorates between now and a likely date of trial, the evidence would nevertheless be available to be called in the plaintiff's case. The plaintiff has not taken any steps to perpetuate the testimony of Dr Pisarski: see s 24.18 UCPR.
20. In the absence of the exploration of alternative methods to deal with the potential adverse consequences to the plaintiff of the deterioration of the health of Dr Pisarski, I am unpersuaded on that ground that the matter should be expedited. As well, I note that the evidence does not permit the Court to conclude what the prognosis is for Dr Pisarski's health.
21. In those circumstances, the plaintiff's Notice of Motion for expedition will be dismissed.
22. The significant majority of time and expense at the hearing involved the transfer Motion brought by the second defendant and upon which he has failed. The expedition Motion involved very little, if any, time or effort. In those circumstances, it is fair and just that the second defendant ought pay the costs of the Motion which he brought and that the costs of the Motion for expedition should be paid by each party.

Orders

1. I make the following orders: 1. Notice of Motion of second defendant filed 23 November 2017 dismissed. 2. Notice of Motion of the plaintiff filed 29 January 2018 dismissed. 3. Second defendant to pay the costs of the Notice of Motion filed 23 November 2017 for transfer. 4. All parties to pay his, her and its own costs of the plaintiff's Notice of Motion. 5. Stand the proceedings over for directions before the Common Law Registrar at 9am on 9 March 2018.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2018