Jacqueline Hartmann v Dr James Lewis Lander Harriett Desmond-Bryzak v Dr... [2019] NSWSC 1351 | Case summary

Judgment - EX TEMPORE (REVISED)

Before the court are two notices of motion for determination. In proceedings brought by Harriett Desmond-Bryzak against Dr James Lewis Lander, the plaintiff has filed a motion dated 19 March 2019 seeking an order pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act") that the proceedings be transferred to the Federal Court of Australia. That motion is supported by affidavits of Tony Barakat dated 28 May 2019, 10 September 2019, 1 October 2019, and 3 October 2019.
In those proceedings a motion dated 31 May 2019 has also been filed by the defendant seeking an order pursuant to s 5(2)(b)(iii) of the Cross-Vesting Act that the proceedings be transferred to the Supreme Court of Queensland. There are other orders sought in that notice of motion which are no longer pressed. The notice of motion is supported by affidavits of Nicola Amys of 3 June 2019 and 30 September 2019.
The factual background which gives rise to these motions can be summarised as follows.
The plaintiff alleges that she consulted the defendant, an obstetrician and gynaecologist, in about 2012 in relation to stress and urge incontinence and prolapse. She alleges that the defendant advised her, amongst other things, to undergo surgery incorporating the insertion of a tape product. It is the plaintiff's case that on the basis of that advice she agreed to undergo the recommended surgery which was performed on 28 November 2013 at the Mater Hospital in Brisbane.
The plaintiff alleges that the tape which was implanted by the defendant in the course of that surgery resulted in injury. She pleads a cause of action against the defendant in negligence and breach of contract. She also makes a claim pursuant to the Australian Consumer Law.
In separate proceedings brought by Jessica Hartmann against the same defendant, the plaintiff has filed a notice of motion dated 19 March 2019 again seeking an order under the Cross-Vesting Act that the proceedings be transferred to the Federal Court of Australia. That notice of motion is supported by affidavits of Tony Barakat of 11 April 2019, 10 September 2019, 1 October 2019, and 3 October 2019.
In those proceedings the defendant has also filed a motion dated 31 May 2019 seeking an order under the Cross-Vesting Act that the proceedings be transferred to the Supreme Court of Queensland. Again, there are other orders sought in that motion which are no longer pressed.
The factual background to those proceedings may be summarised as follows.
The plaintiff alleges that in or about 2017 she consulted the defendant in respect of stress and urge incontinence. The defendant is said to have advised her to undergo surgery incorporating the installation of what has been described as a sling product. It is the plaintiff's case that as a consequence of that advice, she agreed to undergo the surgery which was performed on 3 September 2019 at Sunnybank Private Hospital in Brisbane. The plaintiff alleges that the sling which was implanted by the defendant caused injury, and she pleads actions in negligence and breach of contract.
At the outset of the hearing, counsel for the plaintiff made an application for an adjournment of the hearing of each of the motions. The basis of that application was set out in the affidavit of Mr Barakat of 1 October 2019 filed in the proceedings brought by Ms Desmond-Bryzak. In an earlier affidavit sworn on 10 September 2019, Mr Barakat had made reference to the fact that other matters of a similar nature had been commenced by his firm in other Courts, including in the Federal Court of Australia. In his affidavit of 1 October 2019 Mr Barakat deposed as follows: [1] 3. One of the matters where AJB Stevens acts for the plaintiff is the matter of Rose Maree West versus Professor Ajay Rane. 4. The matter of West was initially commenced in this honourable court, but on 29 April 2019 was transferred by his Honour Judge (sic) Rothman to the Federal Court of Australia pursuant to the plaintiff's ex parte application. The defendant in (the) matter of West have (sic) filed an application in the Federal Court of Australia to have the matter transferred to the Queensland Supreme Court, the State where it is alleged the defendant performed the negligent implant operation on the plaintiff. 6. The application to transfer the matter of West to the Queensland Supreme Court is currently being considered by his Honour Burley J, and is being case managed, together with all other matters transferred to or commenced in the Federal Court, by AJB Stevens. 7. The matters including the matter of West were last before Burley J on 12 September 2019. 8. All matters in the Federal Court, including the matter of West, are next before Burley J on 29 October 2019 at which time senior and junior counsel briefed in the substantive proceedings will appear to address the court on matters sought by Burley J in respect of all matters in the Federal Court.
Annexed to the affidavit of Mr Barakat is a transcript of proceedings before Burley J on 12 September 2019. One of the issues before his Honour was whether the proceedings should remain in the Federal Court of Australia, or be transferred to the Supreme Court of Queensland. Speaking generally, it would appear from that transcript that his Honour was justifiably frustrated at the lack of assistance which was being provided to assist in determining the issues which were before him. His Honour made reference to the necessity for the resources of the plaintiff to be directed towards determining whether there was a way of conducting all of the cases in a manner which was consistent with the objective of efficiently resolving them. His Honour queried, in particular, why separate statements of claim had been filed, in circumstances where there was provision for class actions in the Federal Court of Australia Act 1976 (Cth) and the accompanying rules. His Honour ultimately made orders adjourning the proceedings until 29 October 2019 so that senior and junior counsel who are briefed on behalf of the plaintiff could appear before him and assist in resolving the various issues that he had raised.
What may or may not happen before Burley J when the matter comes before his Honour later this month is a matter of conjecture. However, on the basis that such proceedings are pending before his Honour, it was the plaintiff's application that the hearing of the present motions should be adjourned. It was submitted that the appropriate course in all of the circumstances was to await the outcome of Burley J's determination, bearing in mind that the causes of action brought in the matters before his Honour mirror those brought by the plaintiffs in the matters before me. Counsel for the plaintiff candidly accepted that if his Honour ultimately concluded that the proceedings before him should be transferred to the Supreme Court of Queensland, the plaintiff would consent to a similar order being made in respect of each of the present matters. The application for an adjournment was opposed by senior counsel for the defendant.
Whilst there may be some superficial attraction in awaiting Burley J's determination, the fact of the matter remains that the motions which are before me were filed more than six months ago. A hearing date has been set, and the matters have been case managed in the interim. When Burley J will make his determination remains unknown. It is clearly not going to be before 29 October next.
In all of those circumstances, and given that the hearing of these motions was set down some time ago, I should proceed to determine them.
The application made in each of the notices of motion is made pursuant to the provisions of s 5(2) of the Cross-Vesting Act which is in the following terms. Transfer of proceedings … (2) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court of a State or Territory (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 Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and (C) the interests of justice; it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or (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.
The principles which govern the determination of these applications are not in dispute between the parties. They are helpfully set out in the written submissions of senior counsel for the defendant, from which I draw the following summary.
The law of the place of the tort is the governing law with respect to all torts committed in Australia which have an interstate element. [2] The application of the law of the place of the tort, or in other words the lex fori, is to be applied with respect to the existence, extent and enforceability of remedies, rights and obligations which are properly characterised as substantive rather than procedural. [3]
The ultimate determination of whether it is in the interests of justice for proceedings to be transferred to another jurisdiction depends upon what is the more appropriate forum for those proceedings. [4] The inquiry has been alternatively characterised as requiring the court to identify the natural forum for the proceedings. [5]
The Cross-Vesting Act is not to be construed and applied by reference to the Australian common law on forum non-conveniens. The principle that a plaintiff has a right of access to a Court possessing jurisdiction, and the Court has a corresponding duty to exercise the jurisdiction that it possesses unless it is a clearly inappropriate forum, has no application in the present circumstances. The focus of s 5 of the Cross-Vesting Act is on identifying the appropriate court by reference to the interests of justice. 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. [6]
It is also important to bear in mind that the terms of s 5 do not confer a discretion on the Court. If I conclude that the interests of justice warrant the transfer of the proceedings, then the section mandates that such an order be made and no question of discretion arises. [7]
In written and oral submissions counsel for the plaintiff emphasised that those acting for the plaintiff in each of these cases before me have commenced a large number of similar proceedings in various States of Australia, based upon the same cause of action, and thus giving rise to the same issues. Counsel informed me that there are a total of 187 potential causes of action, although not all of them are yet the subject of formal proceedings.
One of the principal submissions advanced by counsel for the plaintiff was that in each case the plaintiff relied on an expert opinion of Professor Korda for the purposes of establishing what were described as the common threads of the various causes of action. Accordingly, it was submitted that "the learning applied in many of the matters will be transferable and applicable to others".
It was submitted on behalf of each of the plaintiffs that as a consequence of the existence of common features across each of the matters, the parties would benefit from a common forum, and that the balance of convenience and the interests of justice would be better served by all of these matters being determined within the same forum. It was the submission of counsel for the plaintiff that such forum was appropriately the Federal Court of Australia. In advancing these submissions counsel referred me to the decision of Sperling J in Rosenboom v Qantas Airways Ltd (2002) 56 NSWLR 164; [2002] NSWSC 792.
Senior counsel for the defendant submitted that the interests of justice, and the public interest, were best served by the proceedings being transferred to the Supreme Court of Queensland. In both written and oral submissions senior counsel cited a number of factors which had a connection to that State. They included the fact that the events giving rise to the cause of action in each case occurred in Queensland, and that it had been agreed between the parties that questions of liability and quantum were to be determined pursuant to the provisions of the Civil Liability Act 2003 (Qld) ("the CLA").
Senior counsel also pointed out that procedural provisions applicable to matters commenced in the Supreme Court of Queensland would necessarily apply if the proceedings were transferred, and that such provisions included compulsory conferences which, it was submitted, would be conducive to the refinement of the issues, and the speedy determination of the proceedings.
Senior counsel also submitted that there was no principle which mandated that the jurisdiction chosen or preferred by a plaintiff should be given any weight or emphasis. He also pointed to the fact that all of the parties were (and remain) resident in Queensland, that the Supreme Court of Queensland was geographically more convenient, and that in each case the majority, if not all, of the post-operative treatment undertaken by the respective plaintiffs had been undertaken in Queensland.
As I have already noted, the principal (and indeed the only) question for me is whether it is in the interests of justice that the proceedings be transferred. If I come to the conclusion that this is so, then the provisions of s 5 of the Act mandate such an order. Although there are competing positions of the parties in respect of the notices of motion, each party advocates that the proceedings be transferred. The place of the transfer is the issue.
The events giving rise to the claim in each case occurred in Queensland. That is not, by any means, decisive. However, it is an appropriate starting point because, as a consequence, the law applicable to the determination of liability and the assessment of damages is the law of Queensland, in this case the CLA. It is accepted by both parties that liability will not be determined by the application of common law principles. This is so irrespective of where the cases might ultimately be heard and determined. In these circumstances there, is in my view, considerable force in the submission advanced by senior counsel for the defendant that the interests of justice favour the transfer of the proceedings to the Supreme Court of Queensland, for the simple reason that liability and damages will be determined by reference to a statutory regime which is idiosyncratic to that jurisdiction.
The fact that rules operating in Queensland provide for procedures to be applied by the court in relation to matters such as this with a view to ensuring their efficient disposition is a further factor which weighs in favour of a conclusion that the interests of justice warrant the proceedings being transferred to that State. Those procedures, if adopted, would include procedures for compulsory conferences and the like which I am satisfied would be conducive to a speedy resolution of the proceedings. [8]
I also accept the proposition that medical specialists who practice in Queensland are necessarily more familiar with the CLA, and are therefore in a better position to assess quantum than medical practitioners who may be less familiar with such matters.
I have already referred to the fact that the entirety of the events giving rise to the proceedings occurred in Queensland. That is a matter of importance in exercising the power under s 5 of the Act. [9] It is also the case that all of the parties were resident in Queensland at the time of the relevant events and remain resident in that State.
In Rosenboom, upon which counsel for the plaintiff relied, Sperling J was faced with making a determination which is not dissimilar determination to the one that I am required to make. Counsel for the plaintiff called in aid, in particular, his Honour's observations as to the advantages of pooling cases in the one court. In particular his Honour said: [10] "The principles applicable to the phrase 'in the interests of justice' appearing in the Act will accommodate the advantages of pooling cases in the one court for joint case management where the cases involve the same or similar issues of fact and/or law and where joint case management may minimise cost and court time."
One could not cavil with that general proposition. However, it necessarily assumes, amongst other things, that all of the cases will ultimately remain in the Federal Court of Australia, to where the plaintiff wishes to have these matters transferred. That is an assumption that I am not in a position to make. The circumstances and factors to which I have pointed overwhelmingly favour a conclusion that it is in the interests of justice that these proceedings be transferred to the Supreme Court of Queensland to be dealt with in that jurisdiction.
In light of the conclusions that I have reached, the parties have consented to the making of orders in each case. Accordingly: 1. In the proceedings brought by Jacqueline Hartmann against Dr James Lewis Lander, being proceedings 2018/00308708, I make the following orders: 1. Pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the proceedings are transferred to the Supreme Court of Queensland. 2. Proposed orders 2, 3 and 4 of the defendant's notice of motion filed 31 May 2019 be stood over until the time of any hearing of the plaintiff's application to extend time pursuant to section 31(2) of the Limitation of Actions Act 1974 (Qld) (LAA), otherwise the notice of motion is dismissed. 3. The plaintiff to pay the defendant's costs of and incidental to the plaintiff's notice of motion filed 19 March 2019 and the defendant's notice of motion filed 31 May 2019. 4. The plaintiff's notice of motion dated 19 March 2019 is dismissed. 5. Upon transfer of these proceedings, the plaintiff consents to the amendment of the defendant's notice of motion filed 31 May 2019 to claim relief under rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) rather than rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) rather than rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), and rule 280 Uniform Civil Procedure Rules 1999 (Qld) rather than rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). 6. Pursuant to s 44 of Personal Injuries Proceedings Act 2002 (Qld) (PIPA), the plaintiff be allowed to commence proceedings for a claim for damages for personal injuries, arising out of medical treatment provided to the claimant despite non-compliance of Chapter 2, Part 1 of PIPA. 7. Pursuant to s 44(8)(b) of PIPA, the proceedings commenced by agreement are stayed, pending compliance with Chapter 2, Part 1 of PIPA. 8. The plaintiff must file and serve her application to extend time pursuant to section 31(2) of the LAA, along with all material which she intends to rely upon, on the solicitors acting for the defendant prior to proceeding with Chapter 2, Part 1 of PIPA. 9. Immediately upon a decision of the Supreme Court of Queensland in relation to the plaintiff's application to extend time pursuant to s 31(2) of the LAA, allowing the claim to proceed against the defendant, the processes set out in Chapter 2, Part 1 of PIPA are to be commenced. 10. All parties are at liberty to apply to the Supreme Court of Queensland. 1. In the proceedings brought by Harriett Desmond-Bryzak against Dr James Lewis Lander, being proceedings 2018/00393955, I make the following orders: 1. Pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the proceedings are transferred to the Supreme Court of Queensland. 2. Proposed orders 2, 3 and 4 of the defendant's notice of motion filed 31 May 2019 be stood over until the time of any hearing of the plaintiff's application to extend time pursuant to section 31(2) of the Limitation of Actions Act 1974 (Qld) (LAA), otherwise the notice of motion is dismissed. 3. The plaintiff to pay the defendant's costs of and incidental to the plaintiff's notice of motion filed 19 March 2019 and the defendant's notice of motion filed 31 May 2019. 4. The plaintiff's notice of motion dated 19 March 2019 is dismissed. 5. Upon transfer of these proceedings, the plaintiff consents to the amendment of the defendant's notice of motion filed 31 May 2019 to claim relief under rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) rather than rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) rather than rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), and rule 280 Uniform Civil Procedure Rules 1999 (Qld) rather than rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). 6. Pursuant to s 44 of Personal Injuries Proceedings Act 2002 (Qld) (PIPA), the plaintiff be allowed to commence proceedings for a claim for damages for personal injuries, arising out of medical treatment provided to the claimant despite non-compliance of Chapter 2, Part 1 of PIPA. 7. Pursuant to s 44(8)(b) of PIPA, the proceedings commenced by agreement are stayed, pending compliance with Chapter 2, Part 1 of PIPA. 8. The plaintiff must file and serve her application to extend time pursuant to section 31(2) of the LAA, along with all material which she intends to rely upon, on the solicitors acting for the defendant prior to proceeding with Chapter 2, Part 1 of PIPA. 9. Immediately upon a decision of the Supreme Court of Queensland in relation to the plaintiff's application to extend time pursuant to s 31(2) of the LAA, allowing the claim to proceed against the defendant, the processes set out in Chapter 2, Part 1 of PIPA are to be commenced. 10. All parties are at liberty to apply to the Supreme Court of Queensland.

Jacqueline Hartmann v Dr James Lewis Lander Harriett Desmond-Bryzak v Dr James Lewis Lander

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