Place of the alleged negligence and residence of the parties
15 All of the conduct complained of in the present case occurred in the State of Queensland and that is plainly the place of the alleged negligence. Accordingly, the issue of the defendants' liability, any assessment of damages and the question whether the proceedings are statute-barred all stand to be determined according to the law of Queensland, wherever the case is heard: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at [86]-[87] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
16 All of the parties were resident in Queensland at the time of the relevant events. So far as the defendants are concerned, the evidence established that they remain resident in Queensland. As to Ms Kok, there was evidence that, although she has a residence in Queensland, she has also spent a substantial amount of time in Sydney since being diagnosed with cancer. Ms Kok stated that, during the three years following the commencement of her treatment, she spent thirteen months in Sydney. She stated further that she only travels back to Townsville because her husband lives in their home and operates a tax business from the residence.
17 An additional connection with the State of New South Wales is that Ms Kok's treating doctors (some of whom will probably be witnesses at the trial) are in Sydney. Ms Kok stated that, following the events over which she now sues, she lost trust in Queensland radiologists. She sought treatment from a team of breast cancer specialists in Sydney recommended to her by her daughter, who works for Illawarra Health and provides a great deal of support to Ms Kok. Ms Kok stayed in the Sydney area for a total of one year during her treatment, living in North Parramatta and also staying with her daughter in Wollongong. While in Sydney, Ms Kok sought legal advice from the Sydney law firm that now represents her in these proceedings.
18 Notwithstanding her substantial ties with Sydney, I am satisfied on the strength of Ms Kok's affidavit that Townsville remains her principal place of residence. Accordingly, this is a case where the place of the tort and the residence of the parties coincide, which is a compelling reason for concluding that the appropriate court to hear the claim is the Supreme Court of Queensland.
19 Mr Elliott, who appeared for Ms Kok, identified a number of factors which he submitted militate against the conclusion that Queensland is the more appropriate forum. First, he relied on the fact that the proceedings have been regularly commenced in New South Wales. However, as submitted by Dr Bell, who appeared for the defendants, the decision of the High Court in Schultz clearly establishes that no particular or specific weight or emphasis should be given to the plaintiff's choice of forum.
20 Secondly, Mr Elliott submitted that, wherever the proceedings are heard, there will be inconvenience to some witnesses and that the inconvenience is "capable of remediation by use of technology or by taking evidence other than at trial and by careful listing". There was evidence relied upon by the two individual defendants as to their professional commitments and the disruption that would be occasioned to their practices and domestic arrangements were they to be required to travel to Sydney for a hearing. Mr Elliott submitted, however, that any prejudice to the defendants is largely illusory. He relied on travel records of the defendants, noting that they are often absent from their practices and can travel extensively "when it suits them".
21 In my view, considerations as to the convenience of the parties and potential witnesses are equivocal in the present case. As effectively conceded by Mr Elliott, there will plainly be inconvenience to one party or the other wherever the proceedings are heard. There is no proper basis for preferring the interests of one or other party in that respect.
22 A third consideration relied on by Mr Elliott was Ms Kok's loss of faith in Queensland doctors. Mr Elliott referred me to the decision of Studdert J in Bloodsworth v South Coast Regional Health Authority (Supreme Court of NSW, 21 August 1995, unreported). In that case, the plaintiff gave evidence in a similar application expressing his distrust toward the medical profession of Queensland. Studdert J stated:
"… even though such distrust be unjustified, that he entertains it is a factor to be weighed on this application because it is relevant to have regard to the possible impact upon his personality disorder should this action be transferred to be heard in Queensland."
23 The specific basis for taking the plaintiff's attitude towards the Queensland medical profession into account in that case was the existence of a personality disorder which may have been exacerbated. It has not been suggested that the prospect of such adverse impact exists in the present case.
24 Leaving aside those matters, the principal basis on which the plaintiff opposed the defendants' application was the "prejudice" to her of "retrospective compliance with the Personal Injuries Proceedings Act 2002 (Qld)". In order to understand the prejudice alleged to arise, it is necessary to consider the application of that legislation to the plaintiff's claim.