Mc v The State of South Australia [2006] ACTSC 9

2. The Jurisdiction of Courts (Cross-Vesting) Act is part of a national scheme that permits state and territory courts to transfer proceedings to other state and territory courts. The legislation provides in s 5(2) that if a proceeding is pending in this Court, (the first court) and it appears to this Court that -

(ii) having regard to -

...

(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 Supreme Court.

3. In this case the substantive proceeding was commenced by originating application issued in April 2003. It is a claim pleaded as an action for damages for negligence, breach of statutory duty and breach of fiduciary duty, arising from events that occurred in South Australia in 1970 and 1971 concerning the plaintiff's medical treatment when she gave birth to a child, and the subsequent adoption of that child pursuant to the Adoption of Children Act 1967 (SA) as in force at the time. In brief, the plaintiff claims that the State of South Australia was negligent and in breach of statutory and fiduciary duties in the advice and treatment it provided her during her pregnancy when she was treated at a public hospital in that State, and during her confinement in that hospital, and that she was pressured or coerced into agreeing to the adoption of that child.

4. It is the plaintiff's case, on the pleadings as they now stand, that the adoption of her child caused her psychological damage and distress which was undiagnosed until about the year 2000. The plaintiff acknowledges that it will be necessary to order that the time for filing of the statement of claim be extended, and the defendant has indicated that it will oppose such a course. Given the nature of the claim, it seems appropriate to order that the plaintiff's full name not be published.

5. The High Court has recently clarified the approach that should be adopted to an application to transfer proceedings on an "interests of justice" basis in BHP Billiton Ltd v Schultz [2004] HCA 61, 211 ALR 523. In Woodham v Medina Group Pty Ltd [2005] ACTSC 92, I adopted and endorsed what Hollingworth J of the Victorian Supreme Court said in Hall v Australian Finance Direct Ltd [2005] VSC 306 of the appropriate approach that a trial judge should now adopt. His Honour noted that the High Court has made it clear that it is an error to approach a cross-vesting application on the basis of the traditional "forum non conveniens" argument, stating (at [60]-[61]) -

60. In the judgment of Gleeson CJ, McHugh and Heydon JJ in Schultz ("the joint judgment") their Honours stated:

Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice ... If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court shall transfer the proceedings to that other court. There is a statutory requirement to exercise the power to transfer whenever it appears that it is in the interests of justice that it should be exercised. 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.

The "interests of justice" are not to be equated with the interests of one or other of the parties to the proceeding, although these may be relevant. According to the joint judgment:

... The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality ....

On the other hand, there may be conflicting interests of a kind that justice would not attribute greater weight to one rather than the other. The advantage which a plaintiff might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to a defendant. The reason why a plaintiff commenced proceedings in one court might be the same as the reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party.

61. The decision to be made is not a discretionary one. Either the interests of justice demand that the proceeding be transferred or they do not.

6. It is appropriate for me to apply this test to the present application.

7. The defendant, in arguing that these proceedings should be transferred to the Supreme Court of South Australia, has made submissions that, both in the context of the final determination of the matter and in determining interlocutory matters such as the application for extension of time, the bulk of the witnesses will be from South Australia. In exchanges of correspondence the plaintiff's solicitor has identified ten witnesses who were said to have been involved in giving advice or treatment to the plaintiff in the hospital, or in the course of the adoption, and there is an affidavit from a solicitor for the defendant to the effect that nine of these former employees of the State still reside in South Australia. In further correspondence some 17 persons at the hospital are identified as having been involved in negligent conduct, although there is no evidence as to where these witnesses now reside. Counsel for the plaintiff indicated that not all of these persons would now be necessary in the plaintiff's case, but of course they may well be relevant to the defendant's case. Given that the allegedly wrongful conduct occurred in South Australia, it seems to me that on the evidence before me it is clear that the vast majority of witnesses both as to the factual issues surrounding the events of 1970 and 1971 and any issues going to prejudice in relation to an extension of time application, will be found in South Australia.

8. The action raises the question of a contemporary court reviewing and forming a judgment on past conduct on the part of the health and social welfare authorities. This is an entirely appropriate task for a court of law in a democratic society, but it clearly gives rise to significant complexities. The court determining the case must be mindful that, in determining the lawfulness or otherwise of past conduct, it must not judge the conduct only by contemporary standards. In Kruger v The Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1 the High Court had to consider a claim by a number of Aboriginal Australians who were complaining about the conduct of the Northern Territory authorities in the years from 1925 to 1960 concerning welfare policies towards Aboriginal Australians. Brennan CJ noted (at 36-37) that -

... it would be erroneous in point of law to hold that a step taken in purported exercise of a discretionary power was taken unreasonably and therefore without authority if the unreasonableness appears only from a change in community standards that has occurred since the step was taken.

9. In Cubillo v Commonwealth of Australia [2000] FCA 1084, 174 ALR 97, O'Loughlin J held that the plaintiffs had not made out their case in negligence and breach of statutory duty in a case concerning the policy of what was said to be forced separation of Aboriginal children from their natural parents in the 1940s and 1950s - the issues described by his Honour (at [65]) Bringing Them Home by reference to the 1997 report of the Human Rights and Equal Opportunity Commission, Bringing Them Home as those concerning the "Stolen Generation" (see [1]-[5], [64]-[81]).

10. His Honour again referred to the difficulty in applying contemporary standards to judging the reasonableness or otherwise of past conduct, saying (at [91]) -

The social stigma of illegitimacy that existed until the last 30 or 40 years most often led to unmarried mothers putting their children up for adoption. Society is now reacting against that practice as it experiences the driving need of so many people to search out their biological parents - in particular their natural mother. Many elements of society now accept single parenthood in a way that would not have been acceptable some decades ago and, as a result, it is now recognised that the number of children who are put up for adoption has significantly decreased. This is but another example of a dramatic change in social attitudes.

11. This action, it is fair to say, is not a routine claim in negligence for personal injury, raising as it does a challenge to past government policy, and the application of that policy, in regard to adoptions. Where such actions have previously been reported, they have not been successful (Kruger, Cubillo cited above). That is not to say, of course, that this action may not succeed, as the hallmark of the common law is that it advances by way of novel actions. Without expressing any view on the likelihood of success of the action, it seems fair to observe that, if it is to be defended, as counsel for the defendant said that it would be, it is likely to be a complex proceeding. The law reports show that the Cubillo litigation at trial occupied some 78 days over three years. With the bulk of the witnesses going to the relevant contemporary practice being from South Australia, this is a strong factor going to the interests of justice being better served by transferring the case. It seems to me that the real factual questions in this case would indicate that dealing with such witnesses by way of telephone or video link evidence from Canberra would be far from satisfactory.

12. Against this, there is evidence that the plaintiff has lived in the Australian Capital Territory for some time, and has quite properly chosen to launch her action here. There is affidavit evidence going to her limited income. There is also affidavit evidence from her treating psychiatrist going to her present condition, and the view is expressed that to transfer the proceedings would put her to additional stress. These factors would favour the retention of the matter in this jurisdiction. Against this, the defendant says that the costs will be significantly higher if all witnesses are required to attend from South Australia.

13. It seems to me that, if this were a routine personal injuries case where the court would apply well settled principles to the factual claim of a medical procedure that is said to have been performed negligently, I would not be satisfied that the interests of justice would favour a transfer. But this is clearly not a routine case.

14. It is an entirely proper role for courts to review past actions of the executive government and to determine whether such actions were lawful. Where such a claim is based on negligence, the contemporary court will be required to determine whether the past conduct was reasonable (mindful of the stricture that it must not judge past conduct by contemporary standards as social conditions change). Since the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, 203 CLR 503, it is clearly the law that, where an Australian court hears an action based on negligence said to arise from conduct in another state or territory, the court hearing and determining the matter must apply the law of the place of the tort. In this case, it would involve applying the law of South Australia. In routine matters, this causes no difficulties and would not of itself be a ground for transfer.

15. But where a court is asked to break new ground in reviewing past conduct of a government and determining whether such conduct (forming part of a long-term pattern of conduct) is unlawful, it seems to me that there are compelling reasons why the court making that determination should be the court of the polity concerned. The court that determines this matter will need to determine whether the conduct of the agencies was lawful and reasonable at the time. In Kruger, Toohey J noted (at 97) that the Ordinance under challenge concerning the placement of Aboriginal children needed to be assessed by reference to what was reasonably seen as capable of being seen by the legislature at the time as a rational and relevant means of protecting Aboriginal persons. Although "no such basis would survive analysis today", he found (at 93) that it was necessary to "consider the standards and perceptions prevailing at the time of the Ordinance". It is apparent from the statement of claim that the plaintiff will allege that the "purported adoption" was unlawful. At the time, the relevant legislation required approval by a magistrate, and I was told that there will be evidence that this did in fact occur. The hearing will thus involve questions as to the proper interpretation of not only then applying South Australian law, but the conduct of aspects of the judicial system of South Australia. In assessing whether the conduct of the magistrate as well as of the health and welfare agencies of the executive government of South Australia was negligent, standards of reasonableness, which must be based ultimately on a court's view of contemporary community standards, will need to be determined. It seems to me that, in a federal system where each of the states and territories have a Supreme Court, these decisions, and the resource allocation decisions that may flow from a determination of negligence, should be a matter for the Supreme Court of the state or territory where the allegedly wrongful conduct occurred. If the community is to have confidence in the judicial system, it seems to me that the court that determines such questions should be the court of that community.

16. Although it would be a finely balanced question which would not ultimately favour transfer if I was only required to determine the issue of the cost and convenience to witnesses (favouring transfer) against the legitimate entitlement of the plaintiff to have the matter heard in the jurisdiction in which she resides, and the cost and inconvenience to her in transferring the matter (favouring against transfer). However, this application raises a more significant question where the litigation is seeking to plead a novel cause of action involving a determination of the lawfulness of past practice of the executive (and judicial) branches of a government being part of the Australian federation. It seems to me that the interests of justice, and questions of comity, favour the transfer of this matter to the Supreme Court of South Australia.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the plaintiff: Campbell & Co Lawyers, amalgamating Helen Small

Solicitor for the defendant: ACT Government Solicitor