Fertility Australia Pty Ltd & Ors v Wendy Read & Charles Goble

Judgment

1. Earlier today, in the midst of the colour and movement of the Common Law duty list which was - surprisingly enough - being conducted remotely from the friendly confines of the Coffs Harbour court complex, I made the following orders: "1. An order pursuant to s 8(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("the Act"), that proceedings numbered 2023/00339019 ("the Proceedings") be removed from the District Court of New South Wales at Newcastle to the Supreme Court of New South Wales for the purposes of consideration of an application under s 5 of the Act. 2. An order pursuant to s 5(2) of the Act that the Proceedings be transferred from the Supreme Court of New South Wales to the Common Law Division of the Supreme Court of Victoria. 3. Costs are reserved."
2. I indicated to the parties I would provide brief reasons as soon as I could. These are those promised reasons.
3. The proceedings in this Court were commenced by summons by Fertility Australia Pty Ltd and two associated parties (Adelaide Fertility Centre Pty Ltd trading as Repromed and Monash IVF Group Ltd). Those three parties are also the named defendants in certain proceedings currently extant in the District Court of New South Wales. The District Court proceedings were commenced by statement of claim by Wendy Read and Charles Goble. Dr Read and Mr Goble are a married couple and their claim against the defendants is based on an assertion of what I will call, generically, professional negligence in the provision of fertility or in vitro fertilisation treatment ("IVF"). The defendants employed a new and novel procedure with a very long name (abbreviated to "niPGT-A"). There were risks and imperfections associated with that procedure.
4. Meanwhile, there is a class action before the Supreme Court of Victoria known as Danielle Bopping & Michelle Pedersen v Monash IVF Pty Ltd & Ors (case no: S ECI 2020 04761). Those proceedings were commenced in December 2020 but the relevant pleading is a second amended statement of claim filed on 18 August 2023. A defence was filed on 27 October 2023.
5. The summons filed in this Court sought orders removing the proceedings from the District Court of New South Wales to this Court and in turn transferring the proceedings to the Supreme Court of Victoria. In support of the summons were two affidavits of the plaintiffs' solicitor which set out the relevant chronology, summarised the issues in each set of proceedings and annexed relevant documentation such as the pleadings in each case to which I have fleetingly referred, case management orders made by Keogh J in the Victorian proceedings, a letter from the defendants' solicitor, and the relevant rules of the Victorian Supreme Court.
6. I had the great benefit of comprehensive and very helpful submissions over the hand of Ms Barrett, counsel for the plaintiffs (in this Court). Ms Barrett appeared this morning and offered to walk me through the evidence and develop her submissions. However, that proved to be unnecessary because of the clear and thorough written submissions filed by Ms Barrett and a misericordious development to which I will refer in the next paragraph. Moreover, by the time I had reviewed the evidence and submissions, it was clear that this is precisely the kind of circumstance to which the cross-vesting legislation was directed.
7. The happy development to which I referred to in the last paragraph is that, by the time the case came on for hearing, the parties had reached agreement and the defendants (in this Court) did not oppose the making of the orders.
8. While consent orders were helpfully prepared and provided to my associate, Ms Barrett acknowledged correctly that I was not exercising a "consent jurisdiction". Rather, the Court was required to reach satisfaction that the orders are appropriate by reference to the relevant criteria found in the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("the Act").
9. Section 8 of the Act relevantly provides: 8 Orders by Supreme Court (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 the State, or (ii) … and (b) it appears to the Supreme Court that - (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Federal Circuit and Family Court of Australia or the Supreme Court of another State or of a 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, 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 may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the 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 Supreme Court. (3) …"
10. Section 5(2) of the Act relevantly provides: 5 Transfer of proceedings … (2) Where - (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and (b) it appears to the first court that - (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court, (ii) … (iii) it is otherwise in the interests 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 that other Supreme Court.
11. At the brief hearing, Ms Barrett referred me to the decision in Comino v Kremetis & Anor (2023) 110 NSWLR 224; [2023] NSWSC 32 where Chen J summarised some of the relevant principles at [70]: "The legal principles: the interests of justice 70 The authorities dealing with the residual provision (viz, the 'interests of justice') are well-established. Relevantly, they may be summarised as follows: (1) The determination of whether it is in the 'interests of justice' under s 5(2)(b)(iii) for proceedings to be transferred depends on what is the 'more appropriate' forum for those proceedings without any particular emphasis in favour of the forum selected by the plaintiff: James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [87]; BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14] and [25]. This last matter is sometimes expressed to the effect that there is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz at [25]. (2) Although it has been suggested that there is strictly no onus upon either party to persuade the Court to transfer the proceedings or not, the better view is that the applicant for transfer has to persuade the Court to make the order it seeks: Barry at [100]. That is, unless 'it appears' that the proceedings should be determined in another court, 'the court does not have power under the act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion': Irwin v State of Queensland [2011] VSC 291 at [14(f)]. (3) The Court must make a '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': Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714; Barry at [87]; Schultz at [14] and [63]. Put slightly differently, the interests of justice are 'concerned with the question of which jurisdiction is better placed to determine a dispute between the parties from a practical point of view': Opes Prime Stockbroking Ltd (in liq) (Scheme Administrators Appointed) v Stevens [2014] NSWSC 659 at [25]. (4) Rather than the selection of the most advantageous, or least disadvantageous, forum for one of the parties, the 'interests of justice' are to be judged by objective factors to facilitate identification of the 'natural forum', in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party: Valceski at [69]. (5) The interests of justice include a range of matters such as the governing law, forensic advantages and disadvantages, balance of convenience to the parties and the witnesses and convenience to the Court system: Barry at [95]. (6) If 'it appears' that one court is more appropriate than the other, however so slightly, then a transfer to the more appropriate court is mandatory; no question of discretion arises: Valceski at [70]."
12. Ms Barrett identified three broad issues raised for determination in the present case: 1. Whether the NSW Proceeding are "related to" the class action in Victoria; 2. Whether the Supreme Court of Victoria is the more appropriate Court to determine the NSW Proceeding; and 3. Whether it is otherwise in the interests of justice that the NSW Proceeding be determined by the Supreme Court of Victoria.
13. By reference to the decision in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 726, Ms Barrett submitted that: "[p]roceedings are related within the meaning of those sections where they raise common questions of fact and law. In particular, they are related where they raise a common central factual inquiry and a common central legal inquiry. It is not necessary that the parties be the same although the presence of a common defendant will support a finding that the proceedings are related."
14. She went on to identify the common questions of fact and law in the present case: 1. Whether the Monash entities owed and breached a common law duty of care to avoid causing pure mental harm to patients (including the plaintiffs in each proceeding) who consented to having their embryos tested using niPGT-A. 2. Whether the Monash entities in providing the niPGT-A test to patients (including the plaintiffs in each proceeding) were subject to and breached the statutory consumer guarantees of due care and skill and fitness for purpose established by sch 2 ss 60 and 61 of the Competition and Consumer Act 2010 (Cth) ("Australian Consumer Law") and whether the damage allegedly suffered by such persons in the form of pure mental harm was reasonably foreseeable so as to be recoverable under s 272 of the Australian Consumer Law.
15. The written submissions continued: "In each of the proceedings, substantial common questions of fact and law arise as to whether the common law and statutory obligations allegedly owed to the plaintiffs were breached by the Monash entities. In each proceeding it is essentially alleged that the Monash entities were negligent and acted in breach of consumer guarantees by using the niPGT-A test clinically in circumstances where: a. the test was not sufficiently reliable in determining the ploidy status of embryos, as it produced increased false positives when compared to traditional testing methods (biopsy); b. the test had not been properly researched and trialled prior to being made available for clinical implementation; c. the test had not been properly peer reviewed in accordance with standard professional practice prior to being made available for clinical implementation; d. the Monash entities were the only parties in the world to use niPGT-A clinically as the sole basis for determining the ploidy status of an embryo; e.the plaintiffs had not been informed or warned of the above matters prior to consenting to the use of the test."
16. A perusal of the pleadings in each of the cases currently on foot in the Supreme Court of Victoria and the NSW District Court compelled an acceptance of these submissions.
17. I was satisfied that the New South Wales proceedings are related to the proceedings currently before the Supreme Court of Victoria and that it is more appropriate that the New South Wales proceedings be determined in Victoria. The proceedings in Victoria are further advanced and are being case managed by a senior Judge who is, no doubt, seized of the complexities of the issues between the parties. Similar expert evidence will be called in both cases and, in the case of the plaintiffs (defendants to the substantive proceedings) they have engaged lawyers who are clearly deep in the preparation of the case for hearing. While the defendants' lawyers will need to catch up, it is also likely that they will benefit from the preparation undertaken by the plaintiffs to the group action in Victoria. The proceedings raise close to identical issues of liability and similar expert evidence will be considered by the Court in each state.
18. I was of the view that the circumstances engaged both s 5(2)(i) and the more general "interests of justice" requirement or test in s 5(2)(iii).
19. For similar reasons, and to facilitate making the appropriate order under s 5, it was also necessary to make the order under s 8(1) removing the District Court to this Court.
20. Accordingly, I was satisfied of the relevant matters required by ss 5 and 8 and made the orders sought by the plaintiffs, consented to by the defendants and set out in paragraph 1 of this judgment.