(2015) 20 DCLR NSW 263
Julia Farr Services Incorporated v Hayes [2003] NSWCA 37
Source
Original judgment source is linked above.
Catchwords
(2004) 221 CLR 400
Genworth Financial Mortgage Insurance Pty Ltd v Herriots (Cairns) Pty Ltd [2015] NSWDC 139(2015) 20 DCLR NSW 263
Julia Farr Services Incorporated v Hayes [2003] NSWCA 37
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: This is an application under s 20(3) of the Service and Execution of Process Act 1992 (Cth). The plaintiff commenced proceedings in this Court on 3 April 2017. The proceedings have been brought against "ACT Health trading as The Canberra Hospital". However, I understand that the reference to "ACT Health" is a reference to a department of government of the Australian Capital Territory and an affidavit filed on behalf of the defendant says that the correct name of the defendant is, in fact, the Australian Capital Territory. It is the Territory which seeks the stay of proceedings.
The plaintiff's cause of action is, in essence, an action in tort for the negligence of medical practitioners employed either by, or at the Canberra Hospital by, the defendant. Paragraph 3 of the statement of claim is this:
"At all material times, commencing on 13 July 2014, the Plaintiff was a public patient of the Defendant in respect to the treatment of a displaced mid‑shaft fracture of the right clavicle suffered in a motor vehicle accident."
Paragraphs 6 and 7 of the statement of claim are these:
"6. On 22 July 2014 the Plaintiff underwent orthopaedic surgery by way of an open reduction and internal fixation with plate and screws of her fractured right clavicle at the hands of the Defendant's employed medical professionals.
7. In the course of such surgery the Defendant's employed medical professionals failed to exercise due care and skill in breach of s 60 [of the Australian Consumer Law] in measurement and surgical screw selection and/or negligently failed to take precautions against subclavian artery impingement."
There follow under par 7 of the statement of claim particulars of the breach of the relevant provision of the Australian Consumer Law and particulars of negligence. They are in each claim the same.
On the day after the statement of claim was filed the plaintiff filed particulars to which are annexed a report of Dr Peter Giblin, an orthopaedic surgeon, bearing the date 26 October 2016 addressed to the plaintiff's solicitors. Dr Giblin provided these diagnoses:
"Based upon her history and examination, this lady has the provisional diagnosis of a fractured right clavicle, reasonably causally related to the subject injury 13 July 2014.
She has the additional diagnosis of a partial arterial occlusion from a surgical screw as noted in the CT angiography of February 2016."
The history recorded by Dr Giblin tells me that the open reduction and internal fixation of the fractured right clavicle was performed on 22 July 2014 and the plaintiff was then discharged on 23 July 2014 with her arm in a sling. The history continues thus:
"She noted after the surgery that she had mottled colour in the right hand and each night there was [sic] pins and needles and numbness in the right arm which disturbed her sleep.
She returned to work on 4 December 2014, doing full‑time normal duties, but there were persisting symptoms in the right arm. So she sought further medical advice.
This culminated in surgery on 2 March 2016 to remove the hardware from her right clavicle. The operation time, according to her records was, 36 minutes. There were no immediate complications and she was off work for six weeks. She then returned to her job doing 20 hours per week, that is two day shifts on normal duties.
Her current treatment is physiotherapy and acupuncture about once a week, and she relies on sedatives to get to sleep at night. She sees her GP when necessary."
I should indicate that Dr Giblin examined the plaintiff on the date of his report, 26 October 2016. The history is now nearly eight months old and it may be the plaintiff has recovered further as a result of the surgery practised on 2 March 2016.
Dr Giblin was asked a number of questions concerning "liability" as it is understood by lawyers. The first question asked was, was it competent clinical practice to allow a screw to impinge the subclavian artery. The doctor answered that in the negative. The next question asked of him was what steps should have been taken in order to avoid impingement of the subclavian artery. The doctor said this, "Accurate measurement using the appropriate surgical instrument prior to insertion of the screw." He identified no other breach of competent clinical practice and maintained the view that choosing a screw of "inappropriate...length" was the cause of persisting symptoms in the plaintiff's right shoulder area. He clearly supports the plaintiff's allegation that she had been negligently treated.
The defendant has not filed any defence and it is not known whether liability will be contested or whether it will be admitted. Almost two months have elapsed since the proceedings were commenced. Perhaps being unduly presumptuous, I presume that prior to commencement of the proceedings there was the usual letter before action that, in my time as a legal practitioner, was considered almost compulsory to deliver to a proposed defendant in order to justify the commencement of proceedings and to ensure that costs were not unnecessarily incurred. It was submitted from the Bar table that the plaintiff had previously made the defendant aware of her claim before action but any such letter of demand prior to action has not been put into evidence.
I had cause to quote the relevant parts of s 20 of the Service and Execution of Process Act 1992 (Cth) (SEPA) in Genworth Financial Mortgage Insurance Pty Ltd v Herriots (Cairns) Pty Ltd [2015] NSWDC 139; (2015) 20 DCLR NSW 263 at [30] and I shall not repeat it. Section 20(4) sets out a number of matters that the Court is required to take into account. However, that list of matters is not exhaustive: Julia Farr Services Incorporated v Hayes [2003] NSWCA 37; (2003) 25 NSWCCR 138 at [83] per Giles JA. Furthermore, s 20(4), as well as listing a number of matters that must be taken into account in determining the current application, also excludes one matter from consideration and that is the fact that proceedings have been commenced in this Court.
The first matter for consideration are the places of residence of the parties and of the witnesses likely to be called in the proceedings. The plaintiff is a resident of New South Wales. I know from the history obtained by Dr Giblin that she is an ambulance officer. I have been told, without objection from the Bar table, that she is an employee of the New South Wales Ambulance Service and is stationed at Yass. She lives at [withheld] in this State, a village or locality about halfway between Murrumbateman and Yass. According to the defendant's solicitor's affidavit, Marchmont is 57 kilometres from Canberra and 277 kilometres from Sydney. It takes about 50 minutes to drive from Marchmont to Canberra and approximately three hours to drive from Marchmont to Sydney.
The operative treatment was clearly provided in The Canberra Hospital which used to be called the Woden Valley Hospital. Paragraphs 14 and 15 of the defendant's solicitor's affidavit are these:
"14. The defendant is likely to call the orthopaedic surgeons who were responsible for the procedure on 22 July 2014, being Dr Damian Smith (the MO orthopaedic surgeon (consultant)) and Dr Jason Chow (registrar), during which, it is alleged, the defendant's staff failed to exercise due care and skill in measurement and surgical screw selection and/or negligently failed to take precautions against subclavian artery impingement. Dr Smith remains resident in the ACT. However, I understand Dr Chow currently resides in Sydney.
15. Other staff present during the surgery on 22 July 2015 who may be relevant witnesses to these proceedings include Dr Rosie David, RN Debbie Angel and RN Suellen Saals. I am instructed that RN Debbie Angel continues to work at The Canberra Hospital. According to an AHPRA search, RN Suellen Saals' principal place of practice is in Deakin in the ACT. Finally, a search of AHPRA reveals a 'Rosemary Laura David' who is noted to have a principle [sic] place of practice in Perth in Western Australia."
I do not know Dr David's field of practice or expertise. If she were present during the surgery, it is likely that she was the anaesthetist. No explanation is provided as to what her role may or may not have been. In any event, it will probably be easier for Dr David to travel from Perth to Sydney than from Perth to Canberra because, as I understand it, the flights between Perth and Canberra are limited or such travel may require travelling via Sydney. I do not understand how the nurses present at the surgery might be relevant witnesses.
However, whether liability is contested or not is completely unknown because the defendant, as I said, has not filed a defence. The plaintiff's cause of action appears to be relatively straightforward. It appears to me that Dr Smith, a resident of the ACT, might be called if liability is contested but other likely witnesses on the question of liability would be Dr Giblin who has provided an opinion and who is a resident of Sydney, Dr Chow who is now resident in Sydney and Dr David, if she be a relevant witness, but she comes from Perth.
If the defendant contests liability then I assume that, in the normal course, a specialist orthopaedic surgeon would be qualified to tell the Court what is best clinical practice or usual clinical practice. It appears to me to be likely that any qualified doctor would be from Sydney or Melbourne or some other capital city in this country or perhaps even an expert from the United States or Great Britain. Whilst mentioning capital cities, I can accept that it is possible that a specialist orthopaedic surgeon practising in Canberra might be qualified by the defendant but the number of specialist doctors practising in the ACT is small because of its relatively limited population and, although it is probably much larger than the pool that I used to deal with when I was in practice at the Bar, it would still be small compared with the number of practitioners available in cities such as Sydney or Melbourne. It is unclear to me from the plaintiff's affidavit what evidence might be called other than the evidence from the plaintiff herself, perhaps from her husband, and certainly from Dr Giblin if liability be contested.
As I pointed out in Genworth, bearing in mind that the applicant on the application bears the onus of proof on the balance of probabilities, I could not find under par (a) of s 20(4) of SEPA that the convenience of witnesses favours Canberra as the venue rather than Sydney. Furthermore, questions of venue these days are often obviated by modern technology. Witnesses from places such as Canberra can give evidence in courts in Sydney by audiovisual link and vice versa.
Going to the facts of the current matter, it is common for legal practitioners and medical practitioners to travel regularly between Canberra and Sydney or Sydney and Canberra to conduct business, for both barristers and solicitors to go to Canberra to appear in either the ACT courts or the federal Courts sitting in that city, and for medical practitioners who practise in Sydney to also practise in Canberra. The flying time is less than one hour. The driving time is three hours. Commuting between the two for professional purposes is fairly common.
The next relevant consideration is the place where the "subject matter" of the proceedings is situated. I had cause to discuss that matter in Genworth commencing at [26] and pointed out that the authorities do not determine that the "subject matter" is the cause of action. The word "place" and the word "situated" both, to me, indicate a physical condition indicating that the subject matter is not the lis but the res. The lis, the cause of action, must be considered under par (e) of s 20(4) and, therefore, if par (b) were to refer merely to the cause of action it would be unnecessary. It appears to me, on consideration, that par (b) probably refers to a physical thing such as real property or a piece of plant or machinery or a factory or, for example, a truck, or motor vehicle which has been damaged in a motor vehicle collision.
The next consideration is the financial circumstances of the parties. Here the defendant is the government of the Australian Capital Territory whose finances, whilst perhaps not bottomless, are substantial compared to the finances of a lady living in a small locality off the Barton Highway close to Yass who is an ambulance officer and married woman with at least one child. I take that matter from Dr Giblin's history. For most ordinary members of the public, any form of litigation is expensive. The plaintiff has retained lawyers who are well known to advertise and to work on the basis of "no win, no pay" which indicates to me why she chose to instruct a firm of lawyers based in Parramatta rather than, for example, a firm of lawyers based in Yass.
Much has been made of the cost of litigation. Inquiries made in open court by my Associate using the Internet and communicated to both parties indicate that if the defendant be successful in these proceedings the plaintiff may have to commence proceedings in the ACT Magistrates Court for which there is a filing fee of $953 if more than $100,000 is claimed or in the ACT Supreme Court if the plaintiff claims more than $250,000, and the filing fee in ACT Supreme Court is $1605. Much has also been made of a difference in hearing fees. The daily hearing fee for the first four days of hearing in this Court is $409 but in the ACT Supreme Court is $851. The daily hearing rate, if the case lasts for between five and seven days, is $716 in this Court but $1417 in the ACT Supreme Court. If the case goes for ten days or more in this Court the daily hearing fee is $1023 but in the ACT Supreme Court it is $2853 per day until the 13th day, but if 14 or more days are required in the ACT Supreme Court the daily hearing fee is $3712. Those are all substantial amounts of money but, clearly, the impost in the ACT would be greater for the plaintiff than in New South Wales. Anything requiring any work that has to be done by lawyers would incur expense.
The next relevant consideration is any agreement between parties about the Court or place in which the proceedings should be instituted. There has been no such agreement. In fact, to put it bluntly, there has been vehement disagreement.
The fifth consideration is the law that would be most appropriate to apply to the proceedings. The appropriate law has to be the lex loci delicti. That is the lex causae. There is no dispute about that. In BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400; (2004) 2 DDCR 78 the majority (Gummow, Kirby, Hayne and Callinan JJ) held that the interests of justice required proceedings to be transferred to the Supreme Court of South Australia where proceedings had been commenced in the Dust Diseases Tribunal of New South Wales. Their Honours pointed out that the lex loci delicti was that of South Australia and that the Courts of that State provided the forum which gave effect to the reasonable expectation of parties and to the policy manifested in the transfer provisions of the cross-vesting legislation in this country. Their Honours also pointed out that to a significant degree the witnesses at trial would come from South Australia and the appellate procedures in that state had a more generous scope for an appellant than those in New South Wales. At [259] Callinan J said this:
"As I have already pointed out, the primary judge, whilst accepting that the tort arose in substance in South Australia, in the end failed to give this matter much, if any, weight at all. In my opinion it will always be an important matter. In some of the cases the expression 'natural forum' has been used. I would take the expression to mean in most cases the forum of the jurisdiction in which the tort was committed. It seems to me to be only logical that at least prima facie that forum will be better equipped to deal with the issues. The events have taken place there. Some, if not most, of the parties have had and are likely to continue to have a presence there. Proximity to the Courts there is likely to lead to both expedition, and savings in expense. 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 what the court of that place should be the most experienced and efficient."
It is common ground that although the background of the plaintiff's cause of action is governed by the common law of Australia, that common law has been modified in the ACT by the Civil Law (Wrongs) 2002 (ACT), just as the common law in this State has been modified by the Civil Liability Act 2002 (NSW). Ms Thomas, who appeared for the defendant, the applicant on this application, said this in her written submissions:
"However, there are differences [between the ACT and the NSW statutes]. In terms of liability, for example, defences that are available to a defendant in NSW under s 5O and s 5I are not available under the ACT legislation. There are marked differences between the provisions relating to the assessment of damages. For example, there is no scale for awards of damages for non‑economic loss. Previous awards of damages under this head within the ACT are an important guide to determining an appropriate award. An ACT court is better placed to determine this issue than an NSW court."
Minds may differ on the last sentence of those submissions. The fact that certain defences available under New South Wales law are not available under the ACT law, in my view, makes no difference at all. It is also conceded that although there are differences between the ACT law and the NSW law on the question of liability, as far as the statutes are concerned those differences are not particularly great.
The differences concerning quantum of damages are marked but are not beyond being determined just as well by this Court as by the Courts of the ACT. For example, in New South Wales there are at least four regimes for measuring damages. They are the common law, the scheme under the Motor Accidents Compensation Act 1999, the scheme under the Workers Compensation Act 1987 and the scheme under the Civil Liability Act 2002. Judges in this State need to be able to assess damages in each of four ways and, in some cases, in a number of ways in one particular case if, for example, there is an inter-action between an industrial accident and a motor vehicle accident. It appears from what has been stated and the evidence before me that the common law relating to damages largely prevails in the ACT. This Court is quite used to applying the common law and still does so regularly in certain types of tort cases as well as when applying federal law.
While I acknowledge that the lex loci delicti must be applied, and that is the law of the ACT, the differences are, in the grand scheme of things, not particularly great. Insofar as the plaintiff relies on the Australian Consumer Law, it is uniform throughout Australia and no difference can arise under it between the Courts of the ACT and the Courts of this State.
The final consideration provided by SEPA is whether any related or similar proceedings have been commenced against the defendant or some other person but there is no such proceedings.
One of the differences in the law pointed out at some length by the defendant are certain requirements of the Civil Law (Wrongs) Act 2002 (ACT). Commencing in [20] of her submissions, Ms Thomas said this:
"However, there is one further consideration and it is very much in favour of ordering a stay. This is the fact of important procedural benefits will accrue to both parties, should these proceedings be stayed and the plaintiff required to prosecute her claim in the ACT.
21. These benefits arise from the operation of chapter 5 of the CLWA. This chapter was included in its current form in the Civil Law (Wrongs) Amendment Bill 2003 (ACT). The Second Reading Speech referred to these provisions as promoting early notification of claims and 'open disclosure'. The provisions should also 'allow appropriate cases to be managed outside the court system, and will allow compensation to be made available much earlier and at a lower cost'.
22. Chapter 5 applies to all claims for damages for personal injuries. It requires that before a claimant can bring personal injuries proceedings, the claimant must give the respondent written notice of the claim.
23. The notice of claim must include detailed information. The Regulations require that the claim include information about the nature of the personal injury and the treatment that the claimant has received for that injury, including names and addresses of treating doctors. The claimant is required to provide detailed information relevant to any economic loss claim, including details of employment or self-employment.
24. The notice of claim must authorise the respondent to have access to a range of records and sources of information, including clinical notes of pre‑existing injuries as well as wage, leave and work history records in the possession of the injured person's employer.
25. The respondent is required to respond in writing to the claim within a certain specified time and, if it considers it reasonable to do so, to request further information. If the respondent does not give a response within that period of time, it is conclusorily presumed to be satisfied that it has been served with a complying notice of claim.
26. Once the respondent has received a complying notice of claim, it has a statutory obligation to resolve a claim: s 61 of the CLWA. This must occur within six months of the date of the receipt of the complying notice of claim. It is obliged to take any reasonable steps necessary to find out about the accident giving rise to the personal injury, to invite the claimant to make a written offer of settlement if the claimant has not already done so in the notice of claim, and make a fair and reasonable estimate of the damages to which the claimant would be entitled. The respondent must either make a written counter‑offer or settle the claim by accepting an offer made by the claimant.
27. Any offer or counter-offer by the respondent must be accompanied by a copy of medical reports, assessments or other material in the respondent's possession or control that may help the claimant make a proper assessment of the offer.
28. If a claimant has not given a complying notice of claim pursuant to these provisions, the claimant cannot proceed further with the claim unless conditions are met.
29. If these proceedings are stayed, the plaintiff will be obliged to comply with these provisions before commencing proceedings in either the Magistrates Court or the Supreme Court of the ACT."
It appears that a delay of six months is mandated by legislation. If these proceedings are stayed, the plaintiff will be required to comply with the procedures mandated by the ACT legislation before commencing proceedings in the Courts of the ACT. In other words, before the plaintiff could commence another set of proceedings in the ACT six months from this time would have to elapse and, in essence, the plaintiff could not commence proceedings until the beginning of 2018. I wholly accept that the Courts of the ACT, like this Court, endeavour to finalise litigation within a year. However, that means that the Act proceedings might end by the end of 2018 or the beginning of 2019, whereas if the current proceedings stay on foot the plaintiff can expect her proceedings to be completed by April 2018.
The defendant submits that these "bureaucratic procedures" prior to the commencement of proceedings are a boon. The plaintiff, however, categorises them as a detriment. I am not going to weigh into any such argument. However, I do observe that there are similar restrictions and provisions under the motor accidents legislation and the workers compensation legislation in this State which are often landmines for plaintiffs rather than rocket ships. Suffice to say that to comply with the ACT legislation the plaintiff must suffer a delay of at least eight months, if not 12 months, in the determination of what would appear to be a relatively straightforward claim.
Furthermore, all the procedures that the ACT legislation mandate, prior to action, the delivery of a request for particulars and a reply, an insistence that the particulars supplied be adequate, the service of all medical reports upon which she relies and, as is the usual practice in this Court, the supply of relevant wage records and the like to support any claim for economic loss. Rather than it being of assistance, it appears to me, with the utmost respect, to be a hindrance to the determination of issues raised in this piece of litigation to stay the proceedings to require the plaintiff to go to the ACT courts.
Furthermore, there is the further complication that the plaintiff would need to make an election as to whether she wishes to claim $250,000 or less, or more than $250,000. She would have to decide whether she wishes to litigate her claim for professional negligence in the ACT Magistrates Court or whether she wishes to litigate in the ACT Supreme Court. There is no intermediate trial court in the ACT. In this Court she is claiming the statutory maximum of $750,000. To go to the ACT she would have to make some decision as to how much her case was worth and, therefore, to elect whether to go to the ACT Magistrates Court or to the ACT Supreme Court. Were she to go to the ACT Supreme Court and a hearing be required, the amount of money that she must spend to obtain justice would clearly be much greater than it would be if she proceeds with the current litigation. In that regard, the plaintiff's financial circumstances again arise to be further considered under par (c) of s 20(4) of SEPA.
I have not overlooked the fact that s 20(3) of SEPA provides this:
"The Court may order that the proceeding be stayed if it is satisfied that a court of another state that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters."
However, I had reason to consider the verbiage of this subsection in Genworth at [34] where I said:
"Finally, I should say this on the question of statutory interpretation. I have already quoted subs (3) of s 20 of SEPA. There is some tension in its verbiage. I need to recite the subsection. It is this:
"The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters". [My emphases.]
In Kneipp, Muecke J was concerned in [10] and [11] that the Master may have used the terminology "more appropriate court" rather than the words of the statute itself. However, it is clear to me why no such adverb is used in subs (3). That is because if the courts of two States have jurisdiction to determine all the matters in issue, the question becomes which is the more appropriate court, but if the courts of three or more states have jurisdiction to determine all the matters in issue, the appropriate terminology would be "the most appropriate court". In my view, that is the way in which subs (3) should be approached; that the use of the definite article, without an adverb modifying "appropriate" is merely because the draftsman did not know whether to use the adverb "more" or the adverb "most". He could have used either, but in fact used neither."
Even if I be wrong in suggesting that what is required is to determine which is the more appropriate forum for the determination of current proceedings, it is clear that, nevertheless, I have a discretion to be exercised under s 20(3). If any authority is needed for that proposition one needs only go back to Julia Farr Services Inc v Hayes (supra) commencing at [72].
I am enjoined by s 56(1) of the Civil Procedure Act 2005 "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". I wholly accept that, if there be no similar statutory provision applicable in the ACT, that both the ACT Supreme Court and the ACT Magistrates Court are guided by such principles, the same principles which are common these days to every court in this land. However, it appears to me that it is in the interests of both the plaintiff and the defendant that these fairly straightforward proceedings be determined as quickly as possible, if not by the parties themselves reaching an agreement, then by the curial process. As I said earlier, that will occur by early 2018 if the proceedings remain in this Court but, if these proceedings are stayed, the plaintiff might not have a resolution of her matter until approximately a year later.
Such differences as there are between this Court and the Courts of the ACT are not very great at all and the distance between Sydney and Canberra is not particularly great either. If anything does arise which would require, for example, necessary evidence to be taken locally, then this Court could adjourn from sitting in Sydney to take evidence in Queanbeyan or Goulburn or even Yass, which was once a proclaimed place. I am not persuaded that the defendant has satisfied the onus which it bears of substantiating the justification of a stay pursuant to s 20. The application is accordingly dismissed.
[SUBMISSIONS]
By consent, each party will pay her or its own costs of this application.
[SUBMISSIONS]
I order the defendant to file and serve a defence by 4pm on Friday 21 July 2017. I order the defendant to request any particulars required by it on or before 4pm on Friday 30 June 2017. Plaintiff to serve all medical evidence to be relied upon including any further liability evidence by 4pm on 1 September 2017. Plaintiff to serve complete particulars re claims for domestic assistance, attendant care, loss of income and loss of earning capacity and out of pocket expenses by 4pm on 7 July 2017. For further directions hearing before Registrar on 8 September 2017.
[2]
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Decision last updated: 21 September 2017