Kok v Sheppard

CATCHWORDS : PROCEDURE - application by defendants to have proceedings for medical negligence removed to Queensland - plaintiff commenced proceedings in New South Wales - whether Queensland more appropriate forum

Jurisdiction of Courts Cross-Vesting Act (NSW) 1987 LEGISLATION CITED : Jurisdiction of Courts Cross-Vesting Act (Qld) 1987 Limitations of Actions Act 1974 (Qld) Personal Injuries Proceedings Act 2002 (Qld)

Bankinvest AG v Seabrook (1988) 14 NSWLR 711 BHP Billiton Limited v Shultz [2004] HCA 61; (2004) 221 CLR 400 Bloodsworth v South Coast Regional Health Authority (Supreme Court of NSW, 21 August 1995, unreported) British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 CASES CITED : British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83 Hamilton v Merck & Co [2006] NSWCA 55; (2006) 66 NSWLR 48 James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36

Lynette Anne Kok (Plaintiff) PARTIES : Dr James Sheppard (1st Defendant) Dr Grant Withey (2nd Defendant) Queensland Hospital X-Ray Partnership No. 3 (3rd Defendant)

COUNSEL : Mr D Elliott (Plaintiff) Dr A Bell SC (Defendants)

SOLICITORS : Gerard Malouf & Partners (Plaintiff) Blake Dawson (Defendants)

• 12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20535/08 Lynette Anne KOK v Dr James SHEPPARD & Ors

JUDGMENT 1 HER HONOUR: In November 2005, Ms Lynette Kok was diagnosed with invasive carcinoma of the breast. These are proceedings brought by her against two Queensland doctors and a Queensland x-ray hospital over their alleged negligent failure to give that diagnosis in July 2005. 2 The claim faces two potential legal hurdles. One is that the proceedings were not commenced within the three-year limitation period prescribed under Queensland legislation. The second is that the proceedings were commenced before the parties had completed a process of pre-court negotiation also prescribed under Queensland legislation. 3 Before filing any defences in the proceedings, the defendants have brought the present application for an order that the proceedings be transferred to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987. The principal area of contest between the parties was the significance of the two legal hurdles faced by the plaintiff in the determination of that application.

4 At the time of the relevant events, Ms Kok lived in Townsville, Queensland. She consulted the first defendant, Dr Sheppard, after noticing a lump or thickening in her left breast in about May 2005. Dr Sheppard lives and practices in Townsville, and did so at the time Ms Kok consulted him. The statement of claim does not specifically identify the place where the consultation occurred (nor the date) but according to the defendants' evidence, it was at Dr Sheppard's general practice in Aitkenvale, Townsville. Ms Kok's evidence did not suggest otherwise. 5 On 5 July 2005 Ms Kok attended the premises of the third defendant, an x-ray hospital also in Townsville. She underwent a bilateral mammogram and an ultrasound to the left breast. A radiologist, Dr Withey, prepared a report of the ultrasound that day. Dr Withey is the second defendant in the proceedings. He also lives in Townsville and practiced there at the relevant time. 6 Dr Withey's report stated: "I see no lesions suspicious of neoplasim. Possible area of liponecrosis." 7 Ms Kok alleges that she then consulted Dr Sheppard again. She says that Dr Sheppard read Dr Withey's report, looked at the images of the mammogram and the ultrasound and said to her "these people are the experts". Ms Kok says further that Dr Sheppard did not arrange for any follow-up examination. The lump continued to grow and in due course, on 15 November 2005, Ms Kok was diagnosed as suffering from an invasive carcinoma.

Principles applicable to the present application 8 The defendants' application is brought under s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act, which relevantly provides: "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

…. (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court."

9 As noted in the defendants' written submissions, the principles applicable to an application under that section are conveniently summarised in the judgment of Harrison J in British American Tobacco Australia Services Limited v Laurie [2009] NSWSC 83 at [25]-[27]. Those principles relevantly include the following propositions. 10 The burden of the task of determining whether it is "in the interests of justice" that the proceedings be determined by the Supreme Court of another State is to identify the "more appropriate" forum for the proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Shultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161]-[169] per Kirby J. 11 The inquiry has alternatively been characterised as requiring the Court to identify the "natural forum" for the proceedings: British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44]; Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69]. 12 The determination as to the more appropriate or natural forum for the proceedings should be made "without specific emphasis in favour of the choice of forum made by the plaintiff": Schultz at [77] per Gummow J. Counsel for the defendants submitted that the High Court was "at pains" in that case to correct the contrary view: at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J. 13 In James Hardie & Co v Barry, Spigelman CJ expressed the view that, where the place of the tort and the residence of the parties coincide, that will generally be determinative of the issue of the "appropriate Court". However other factors, such as the governing law of the wrong, are also relevant. 14 Another relevant factor is whether the assessment of any questions arising in the litigation is dependent upon a degree of local knowledge: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 729D per Rogers AJA.

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.

Application of the Personal Injuries Proceedings Act 2002 (Qld) 25 The Personal Injuries Proceedings Act (Qld) is part of the law of Queensland. There is no doubt that, had the proceedings been brought in that State, the Act would apply to the claim.

26 Chapter 2 of the Act, headed "Pre-court procedures", prescribes procedures that must be taken by a claimant before commencing proceedings in a court. The first of the prescribed procedures is a requirement to give written notice of the claim to the person against whom the proceeding is proposed to be commenced. Section 9 of the Act makes detailed provision as to the requirements of such a notice.

27 In the case of a claim for medical negligence, there is an additional requirement under s 9A of the Act to provide an "initial notice" before giving Part 1 of a notice under s 9. Section 9A(4) prescribes the period within which the initial notice must be given. The evidence before me does not establish with certainty the period within which such notice was required in the present case, but it appears to have ended no later than 16 August 2006 (the day nine months after the date on which the invasive carcinoma was diagnosed) and possibly as early as mid-February 2006 (see s 9A(4)(b)). 28 The failure of a plaintiff to give the initial notice in accordance with that provision is addressed in 9A(6), which provides: "If the initial notice is not given within the period prescribed under subsection (4), the obligation to give the initial notice continues and a reasonable excuse for the delay must be given in the initial notice to the person against whom the proceeding is proposed to be started." 29 In correspondence between the parties in the present case, the defendants have contended that Ms Kok did not give the initial notice within the period prescribed under s 9A(4) and, further, that she has not provided a reasonable excuse for the delay. By letter dated 23 April 2007 to Ms Kok's solicitors, the defendants complained, in particular, that no explanation had been given for the delay between the date upon which those solicitors took instructions in the matter (12 January 2006) and the date on which Dr Sheppard received the initial notice (about February 2007) and the notice of claim (March 2007). 30 The letter stated that, in the interests of proceeding expeditiously with the claim, Dr Sheppard was prepared to waive the requirement to provide further explanation but that he specifically reserved his right to rely upon any "limitation defences" available either under the Personal Injuries Proceedings Act (Qld) or the Limitations of Actions Act 1974 (Qld). 31 After that point, it appears that the parties continued to process the claim in accordance with the pre-court procedures prescribed in Chapter 2 of the Act. In June 2008, the plaintiff's solicitors became concerned that the expiration of the limitation period was "fast approaching" and foreshadowed moving "the Supreme Court at Brisbane" for orders under s 43 of the Act. That section allows a Court to give leave to a claimant to commence proceedings despite non-compliance with the prescribed pre-court procedures in circumstances where there is an urgent need to start the proceedings. 32 Shortly afterwards, however, the plaintiff's solicitors formed the view that the three year limitation period commenced to run from the date of the plaintiff's diagnosis on 15 November 2005. On that basis, they concluded that their proposed application under s 43 was premature. Those views were communicated to the defendants' Queensland solicitors in a letter dated 2 July 2008. 33 If those views were correct, proceedings had to be commenced by the middle of November 2008 (probably 15 November 2008), and the letter dated 2 July 2008 discloses that the plaintiff's solicitors were aware of that fact. However, so far as the evidence before me discloses, no proceedings were commenced within that time. As already noted, the present proceedings were commenced in this Court on 3 December 2008. 34 There are accordingly two potential legal hurdles to the plaintiff's claim which do not touch on the merits of the case. The first is that the proceedings were commenced before the pre-court procedures prescribed in Chapter 2 of the Personal Injuries Proceedings Act (Qld) had been complied with. The second is that the proceedings appear not to have been commenced within the time prescribed under the Limitations of Actions Act (Qld).

35 The plaintiff initially sought to rely on the limitations issue as an additional basis for opposing the defendants' application, apparently on the premise that there would be some advantage to her in having this Court determine the question whether an extension of time should be granted. However, Mr Elliott abandoned reliance on that consideration during the hearing. In my view, that was appropriate. The issue whether the proceedings are statute-barred is to be determined according to the law of Queensland, wherever the proceedings are heard: Pfeiffer. Accordingly, that is a consideration that is, at best, equivocal and arguably one that points in favour of transferring the proceedings, assuming it is accepted that the more appropriate court to apply the Limitations of Actions Act (Qld) is the Supreme Court of Queensland. 36 As to the position under the Personal Injuries Proceedings Act (Qld), the prejudice perceived by the plaintiff, as I understand it, is that the Act prohibits the commencement of proceedings until after the pre-court procedures have been complied with. The risk that the requirement to take those steps will prevent a claimant from commencing proceedings within the limitation period is addressed by the mechanism provided for in s 43 of the Act, permitting the Court to grant leave to a claimant to commence proceedings despite non-compliance with those procedures. 37 The parties did not address me as to the status of proceedings commenced before compliance with the pre-court procedures prescribed by the Act so far as the law of Queensland is concerned. In any event, the basis for the plaintiff's opposition to having the proceedings transferred was that any disadvantage that might have been suffered had the proceedings been commenced in Queensland does not arise in proceedings commenced in this Court. The premise of that position was that the relevant provisions of the Personal Injuries Proceedings Act (Qld) are procedural and, accordingly, that they do not apply to proceedings outside Queensland. 38 So far as the law of New South Wales is concerned, that appears to be correct. Section 7(1) of the Personal Injuries Proceedings Act provides: "Provisions of this Act that provide for the kinds of damage, and the amount of damages, that may be recovered by a person, and the provisions of chapter 2, part 1, divisions 1, 1A, 2 and 4, are provisions of substantive, as opposed to procedural, law."

39 However, in Hamilton v Merck & Co [2006] NSWCA 55; (2006) 66 NSWLR 48, the Court of Appeal held that the pre-court procedures prescribed by the Act are procedural provisions and will therefore be disregarded by a New South Wales Court applying the substantive law of Queensland. As to s 7(1), the Court held that that provision modifies the common law for the purposes of the rules to be applied by the courts of Queensland, but cannot conclusively determine for other courts the issue of whether the provisions are substantive or procedural. 40 Dr Bell submitted, however, that even if the plaintiff faces a procedural hurdle in Queensland that does not arise in proceedings heard in this Court, that is not a basis for refusing the application if Queensland is otherwise the appropriate forum. He submitted that the Court's task is to do justice between the parties. To accede to the plaintiff's argument would be to prefer the interests of the plaintiff over the interests of the defendants, to whom the reciprocal argument is equally open. 41 Although it may appear to operate harshly against the plaintiff, I think it must be accepted that the contention put by Dr Bell is right. The proposition may be tested by enquiring whether, had the proceedings been commenced in Queensland, non-compliance with the pre-court procedures would be a proper basis for the plaintiff to have the proceedings transferred to New South Wales so as to remove a procedural hurdle. I do not think it would. 42 I am satisfied, in accordance with the view expressed by Spigelman CJ in Barry, that the appropriate forum for the present proceedings is Queensland, since that is the place of the alleged negligence and the place of residence of all of the parties. On that basis, I am satisfied that the defendants should have orders as sought. 43 The orders are:

1. That Supreme Court of New South Wales proceedings number 20535 of 2008 be transferred to the Supreme Court of Queensland, pursuant to s 5(2) of the Jurisdiction of Courts Cross-Vesting Act (NSW) 1987 and s 5(2) of the Jurisdiction of Courts Cross-Vesting Act (Qld) 1987.

2. That the plaintiff pay the defendants' costs of the motion. **********

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