These are my reasons for dismissing the defendant's application for these proceedings to be transferred to the Sydney Registry of the District Court pursuant to r 8.2(1) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
[3]
Background
The plaintiff, by statement of claim filed on 28 August 2014, brought proceedings for damages arising out of the circumstances in which, while he was the pharmacist in charge of Figtree Private Hospital, he slipped on water on the floor and sustained serious bodily injury (paragraph 4 of the statement of claim). The particulars of negligence include failure to have a safe cleaning system or to place any signs to warn, failure to ensure there was a proper system in place to ensure slippery substances were not on the floor, and failure to provide rubber matting for a busy service corridor leading to and from the dispensary used by hospital staff.
The defendant is the occupier of the premises and the employer of the plaintiff.
After proceedings were commenced, they were case managed by the Registrar, who noted on 29 July 2015 that the parties were to take a hearing date on the next occasion when the matter returned for directions on 2 December 2015. However, when the matter came before the Registrar on 2 December 2015, it was noted that there was likely to be a settlement or an application for transfer to the Supreme Court.
Neither of these events has occurred. When these proceedings relisted before the Registrar on 10 February 2016, this application was instead foreshadowed by the defendant. The Registrar referred the proposed application for change of venue to these sittings, noting that any notice of motion was to be filed by 24 February 2016 and made returnable on 7 March 2016.
The defendant's notice of motion was filed on 25 February 2016 but the affidavit of Kathryn Louise Langton in support was not filed until 2 March 2016. This meant that the submissions were made with a degree of informality, as the plaintiff's legal representatives were not in a position to respond formally to the issues raised by the defendant in such a short timeframe.
[4]
The defendant's application for change of venue and transfer to the Sydney Registry
The defendant's application is brought under Rule 8.2(1) UCPR, which provides:
"8.2 Change of venue generally
(1) If it appears to the court:
(a) that a fair or unprejudiced trial of a question arising or likely to arise in or in connection with any proceedings cannot otherwise be had, or
(b) for any other reason it is appropriate for the venue of any proceedings to be changed,
the court may, subject to this Part, make an order changing the venue of the proceedings."
There is no suggestion that a fair or unprejudiced trial cannot take place in Wollongong. The question is what is meant by "for any other reason" in r 8.2(1)(b).
[5]
The defendant's submissions
The reasons for seeking change of venue, as set out by Ms Langton in her affidavit in support of the application, are:
1. The plaintiff resides in Moss Vale and the accident occurred in the Figtree Private Hospital. While these are closer to Wollongong than to Sydney, they are not in Wollongong.
2. The defendant's lay witnesses are "able to travel to Sydney" (paragraph 10).
3. There are "complicated causation of injury issues which will require the cross examination of all experts" (paragraph 10) in a 5 day plus hearing. Both parties' experts (who will all be cross-examined) reside in Sydney. (This is the principal basis upon which this application is brought).
4. The plaintiff's Senior Counsel resides in Sydney and Ms Langton has "instructions to retain counsel from the Sydney bar" for the defendant.
For these reasons, the defendant submits that the court should order a change of venue to the Sydney Registry as the parties "will be put to a considerable additional cost if experts are required to travel to Wollongong" (paragraphs 22 - 23). Sydney is therefore a "more convenient venue" (paragraph 23).
The plaintiff opposes the application and seeks dismissal of the Notice of Motion with costs.
[6]
The relevant principles
Unless a court otherwise orders, the venue at which proceedings are heard is the venue specified by the plaintiff in the originating process (r 8.1 UCPR).
While early decisions on venue took the view that the plaintiff's right to nominate the place of trial should not be changed unless there was significant cause to do so (see for example, Lehtonen v Australian Iron & Steel Pty Ltd [1963] NSWR 323), this test has long since been discarded. In National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 83 ALR 434, the traditional reluctance to change venue was modified to take into account the determination of where the case can be conducted (or continued) most suitably, bearing in mind the interest of all the parties, as well as "the most efficient administration of the court" (at 435). (This reference to "efficient administration" is one of the earliest references to court resources issues.)
However, case management principles have changed profoundly since that decision was handed down in 1988. Case management issues such as change of venue must now be determined in accordance with ss 56-62 Civil Procedure Act 2005 (NSW). The New South Wales Court of Appeal has warned, albeit in relation to different case management issues, that earlier authorities which do not take into account these overriding principles must be viewed with caution: Newmont Yandal Operations Pty Ltd v J Aron Corp (2007) 70 NSWLR 411 per Spigelman CJ at [113]-[117].
Unfortunately, there has yet to be any judicial consideration of the principles set out in ss 56-62 to applications for change of venue. There is a general discussion of the relevant principles for change of venue (but without reference to ss 56-62) in Gray (t/as Clarence Valley Plumbing Services) v Ware Building Pty Ltd [2013] NSWCA 271, where the appellant appealed a refusal of an adjournment and transfer of proceedings to another location (namely from Taree to Grafton). That application (which was also made in circuit sittings of this court) was refused on the merits (at [28]) rather than on case management principles, with the court noting at [35]-[36]:
"[35] The primary judge was faced with a situation where there was a last minute application to adjourn a hearing that had been set down for some time; he had been informed by Counsel then appearing for the plaintiff (Mr Colquhoun) that the plaintiff was ready to proceed and had arranged for a witness from Queensland to be in attendance for the commencement of the hearing; and there was a paucity of evidence as to the reasons for the late application and as to when Mr Gray might be in a position to proceed with the hearing. The decision to dismiss the application for adjournment and to proceed in Mr Gray's absence involved an exercise of the Court's discretion, to be undertaken having regard, among other things, to the statutory mandate in s 56 of the Civil Procedure Act 2005 (NSW).
[36] No error has been shown of the kind referred to in House v R (1936) 55 CLR 499 in the exercise of his Honour's discretion so as to give rise to appellate intervention in this case. Whether or not this court might have come to a different decision in the exercise of the discretion to adjourn the hearing is not to the point.
Similarly, in Arnoldus-Lewis v Murphy t/as North Coast Investigations [2008] NSWSC 1103, the court considered and granted a change of venue from Bellingen to Casio on the merits (the party seeking the change was a quadriplegic unable to make a journey to the court which involved a three-hour drive). In those circumstances, no consideration of ss 56-62 was necessary.
[7]
Applicability of ss 56-62 to the facts of this application
Noting the general requirement that case management principles are intended to promote "just, quick and cheap" resolution of proceedings, the most relevant requirement is for proportionality of costs (s 60). At first blush, s 60 principles would appear to favour the defendant's application, in that the cost to parties of litigation should be proportionate to the importance and complexity of the subject matter in dispute. The significant fees which would apply if all the experts under subpoena were required to attend to give evidence in a 5-day hearing would appear to be a powerful incentive for a change of venue.
However, other provisions in the UCPR and Practice Notes also require me to take into account two relevant factors in relation to proportionality and costs and indeed to efficient case management generally. The first of these is the increasing use of modern technology, including the availability of AVL equipment. There has been some discussion (and indeed controversy) about the giving of evidence by Skype (as to which, see the comprehensive review by Krawitz, M., & Howard, J. "Should Australian courts give more witnesses the right to Skype?" Journal of Judicial Administration, (2015) 25, 44-63), but AVL is now commonly used in both civil and criminal courts, and is helpful in overcoming what early enthusiasts for electronic court facilities referred to as the tyranny of distance unique to Australia: Wallace, A., "Virtual Justice in the Bush: the Use of Court Technology in Remote and Regional Australia" (2008) 19 Journal of Law, Information and Science 1.
Mr Campbell SC proffered the observation that doctors actually prefer to be cross-examined on their own premises rather than travelling to any courtroom and waiting to be called. Whether or not that is so, parties who factor into their preparation methods for trial the likelihood that courts of the future will increasingly permit the giving of evidence from remote locations, particularly for expert witnesses, where issues of credibility would play little or no role in any event. While courts will continue to insist that parties attend the court, the concept that fact-finders should observe all witnesses in the witness box has been described as "ancient" (see Nicolson, D. J., "Truth and Demeanour: Lifting the Veil" Edinburgh Law Review, May 2014, Vol 18(2): 254-259). As early as 1997 Australian judges were satisfied that video conferencing was sufficient to assess a witness' demeanour (see Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (New South Wales Supreme Court, Giles CJ, 11 March 1997); R v Wilkie (2005) 193 FLR 291 at [32]). Certain kinds of witnesses, such as sexual assault victims, have been able to give evidence in this fashion for more than two decades: see Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482 at 498 per Hunt CJ
The giving of evidence from a remote location is widely acknowledged to save significant cost not only for the parties but for the court. Courtroom facilities are increasingly aimed to permit this kind of evidence to be given: see The Honourable Chief Justice M L Warren AC, QC, "Embracing technology: The way forward for the courts" (Speech delivered at the 23rd Biennial Conference of District and County Court Judges, Australia and New Zealand, Melbourne, 19 April 2015). Practitioners, as well as the courts, need to embrace these new methods of preparation of proceedings and presentation of evidence. It was, in part, with these technological advances in mind that ss 56-62 Civil Procedure Act 2005 (NSW) came into being. This was adverted to by Mr Campbell SC, whose submissions included pointing to the AVL screens on either side of this courtroom and asking rhetorically: "Do these things work?"
The second, and perhaps more relevant, case management technique that I should take into account is the use of concurrent evidence, which has transformed the traditional process of expert evidence in court hearings. The defendant's claims of length and difficulty of issues begin to unravel after an enquiry was made as to whether the time estimate included the likelihood of experts giving evidence concurrently. The 5-day estimate appears to have been arrived at on the assumption that doctors would give evidence one after the other in the traditional manner.
Thanks to the increasing use of concurrent evidence (see The Honourable Justice P D McClellan AM, "Concurrent Expert Evidence" (Medicine and Law Conference, Law Institute Victoria, 29 November 2007) and The Honourable Justice P R Garling RFD, "Concurrent Expert Evidence - The New South Wales Experience" (University of Oxford, Faculty of Law, 1 December 2015)) and the new Standard Orders for Hearing, hearing times are now streamlined to ensure the parties focus on the principal issues, and hearing time is correspondingly lessened.
In these proceedings, the two main medical issues of contention identified by the parties can readily be resolved by consideration of concurrent evidence procedures. Whether the witnesses are called at the same time, or simply agree to a list of issues in dispute, the likelihood is that those issues will be substantially reduced or that the need for any cross-examination (let alone the lengthy cross-examinations gloomily forecast by the defendant) may fall away. However, I shall leave it to the parties to determine which issues are most suited to concurrent evidence, and have accordingly only made a general order for them to consider concurrent evidence.
Finally, there is an additional advantage, in leaving the proceedings in the Wollongong District Court, in that these proceedings (whether or not they actually run for five days) can obtain a hearing date much more quickly in Wollongong than is the case in the Sydney Registry. As is apparent from the orders set out below, I have listed these proceedings to commence in the 8 August 2016 sittings, which gives the parties plenty of time to consider the manner in which the expert evidence should be prepared and presented, with the certainty of a hearing date within the foreseeable future. No August hearing date would be available for a 5-day matter in the Sydney Registry, partly because of other long trials and partly because of the cheaper and more readily available accessibility of the registrars in this court to supervise case management issues such as expert evidence, which they can start doing straight away (the parties agreeing the medical evidence is now complete), rather than waiting for the proceedings to obtain a review date in the Sydney registry, with the prospect of a hearing date in the distant, rather than relatively close, future.
Taking into account the Wollongong District Court's new AVL facilities, the likelihood of concurrent expert evidence and the advantages of an earlier hearing date than is available in the Sydney registry, I am satisfied that these proceedings should remain in Wollongong.
Mr Campbell SC also asked me to take into account the defendant's delay in bringing this application, but I am of the view that the defendant was entitled to wait until the issue of medical complexity crystallised, and that this problem only became apparent after all the medical evidence was served. Accordingly, this is not a factor which I have taken into account in dismissing this application.
[8]
Orders
1. Defendant's notice of motion dismissed.
2. Defendant is to pay the plaintiff's costs of the notice of motion.
3. Matter listed for hearing to commence in the 8 August 2016 sittings.
4. The parties are to serve chronology and statement of issues, agree on a tender bundle, and to provide these to the court 7 days prior to the sitting commence.
5. The parties are to give consideration to concurrent evidence if appropriate.
6. Note - Parties agree no further medical evidence may be served without leave of the court.
7. Matter listed on the 6 June 2016 for directions only, in the event that either side may wish to seek leave to file updating medical evidence.
[9]
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Decision last updated: 05 April 2016