State of Queensland v Moon

Judgment 1Before the Court is an application by the State of Queensland to have proceedings brought against it by Ms Rachel Moon in the District Court of New South Wales transferred to this Court, and thereafter to the Supreme Court of Queensland. The application is brought pursuant to ss 5(2)(b) and 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). Ms Moon opposes the application. 2Ms Moon is the plaintiff in the District Court, and the State of Queensland is the plaintiff in this Court. For ease of comprehension I shall refer to the parties by name, except in my orders. 3To state the background of the matter succinctly, in 2007 Ms Moon underwent an obstetric procedure in a hospital in Nambour, Queensland. She alleges that she suffered a perforated bowel that should have been diagnosed earlier, and that as a result she developed a serious heart condition. By way of a statement of claim filed on 11 April 2011, she claims that she suffered injuries as a result of medical negligence, and is consequently entitled to damages. 4Although there was dispute between the parties as to whether or not the matter should be transferred to Queensland, there was no real dispute between them about the test to be applied to such an application. In a nutshell the Court is required to identify the "more appropriate" or the "natural" forum for the proceedings: see in particular British American Tobacco Australia Services Ltd v Laurie [2009] NSWSC 83 at [25]-[27]. 5The State of Queensland, the moving party on the application submitted that the following facts, in combination, demonstrate that the test for transfer is made out, because Queensland is the more appropriate forum. 6First, the alleged tort occurred in Queensland. 7Secondly, the applicable substantive law is that of Queensland. 8Thirdly, Ms Moon resides in Queensland. 9Fourthly, Ms Moon has been treated for her injuries in Queensland. 10Fifthly, in a matter in which both liability and quantum of damage are expected to be in dispute, one would expect that there would be at least some oral evidence required with regard to each question. The likelihood is that the vast majority of any such witnesses reside in Queensland, including the medical professionals said to have been negligent, and the treating doctors of Ms Moon. 11In short, the submission of the State of Queensland was that the proceedings have little or nothing to do with New South Wales, and everything to do with Queensland. 12Ms Moon resists the application on a number of bases. Although counsel for Ms Moon acknowledged the importance of the place of the alleged tort and the residence of the parties, he submitted that the following factors should be taken into account "in the process of determining where the interests of justice lie": see James Hardie & Co v Barry [2000] NSWCA 353; 50 NSWLR 357 at [7] per Spigelman CJ. 13The first factor is delay on the part of the State of Queensland in bringing the application. Ms Moon emphasised that her proceedings were commenced in 2011, with regard to events alleged to have occurred in 2007. The application for transfer was brought in September 2014. Pursuant to r 44.5 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules), she submitted that that delay in itself would stand in the way of any transfer. 14Secondly, Ms Moon has qualified a number of medical experts, the majority of whom are based in Sydney. It would be inconvenient and expensive for them to be required to travel to Queensland to give evidence. 15Thirdly, the proceedings were commenced in New South Wales because of a long-standing relationship between a firm of solicitors in Sydney and the family of Ms Moon. Furthermore, Ms Moon alleges that she has suffered psychiatric problems as a result of the negligence of the State of Queensland. In short, it would be difficult logistically and emotionally for new solicitors based in Brisbane to take over the conduct of the matter on behalf of Ms Moon. 16Fourthly, transferring the proceedings to Queensland could cause substantial prejudice to Ms Moon. That submission had the following bases. First, the statute of limitations of that State could very possibly preclude the claim of Ms Moon. Secondly, the authority of Nicholls & Ors v Brisbane Slipways and Engineering P/L [2003] QSC 193, a judgment of a single judge of the Supreme Court of Queensland, suggests that the failure of Ms Moon to comply with a Queensland statutory provision could provide a further basis for preclusion of the proceedings. Thirdly, the rules of evidence with regard to client legal privilege in Queensland, which are said to be different to those applying in New South Wales pursuant to the Evidence Act 1995 (NSW), have the potential to disadvantage Ms Moon. 17Fifthly, the issues of liability and quantum could well be determined on the documents. Accordingly, there would be no need for medical practitioners said to have been negligent, or the subsequent treating doctors or nurses, to be called as witnesses in the proceedings. Therefore their place of residence could very well be irrelevant. Determination 18To my mind, the circumstances that I have outlined above argue strongly for the proceedings to be transferred to Queensland. 19As I have said, the tort allegedly occurred there, and there was no dispute between the parties that the substantive law of Queensland will apply at any trial. The hearing of the motion itself demonstrated the practical difficulties of conducting proceedings in a New South Wales court in which Queensland law must be applied. 20Ms Moon resides in Queensland, and it will occasion no logistical difficulty to her personally for the proceedings to be conducted there. 21I accept that it is possible that no witnesses will be required in order to determine liability and quantum. Nevertheless, I think it very likely that at least some cross-examination will be required of the medical professionals said to have been negligent, or of treating medical professionals. I also accept that it is very likely that the vast majority of those persons reside in Queensland. 22As for the experts qualified by Ms Moon, the majority of whom reside in Sydney, I think there is force in the submission of the State of Queensland that it is unlikely that there will be credibility issues requiring them to give evidence in person. I think that is far more likely that the parties will be content for them to give evidence by way of audio-visual link. That procedure would not occasion undue expense or logistical difficulty to Ms Moon. 23As for delay standing in the way of the transfer, the position of the State of Queensland was that the proceedings in the District Court were stayed so that Ms Moon could comply with some procedural requirements of the law of Queensland. There could be some force in the submission of Ms Moon that, even if that be the case, this application could nevertheless have been made much earlier, thereby forestalling Ms Moon qualifying a number of experts in Sydney. But I respectfully consider that the position of the lawyers of Ms Moon that there was no appropriately early "hint" of such an application being made by the State of Queensland before December 2013 was not quite correct. An affidavit of Katharine Philp of 25 May 2011 that was read before me and had been filed in the proceedings on 30 May 2011 demonstrates that the possibility was raised more than two and a half years before December 2013. 24Finally, I accept that it could be forensically disadvantageous for Ms Moon to have the matter proceed in Queensland. There will be differences between the two States in matters such as (at least) rules of court and the rules of evidence. Some of those differences may benefit the State of Queensland; others may benefit Ms Moon. But I am not of the view that those are the kinds of considerations that are to be taken into account when one seeks to evaluate the "interests of justice" for the purposes of such an application. If it be the case that Queensland is the appropriate State for the conduct of the proceedings, and if it be the case that the procedural law of that jurisdiction favours or disfavours one or other party, that is simply an inevitable consequence of determining the appropriate forum. 25In short, apart from the fact that the solicitors whom Ms Moon chose to instruct happen to be based in Sydney, to my mind the dispute between the parties has no connection with New South Wales. In contrast, the matter is firmly rooted as a matter of law and fact in Queensland. It should be litigated there. To express my view another way, Queensland is the natural forum for the resolution of this litigation. 26As for costs, each party claimed costs in written submissions if successful, and neither party submitted that costs should not follow the event. Orders 27I make the following orders: (1)Pursuant to s 9 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("the Act"), proceedings No 2011/117253 pending in the District Court of New South Wales between Rachel Moon as Plaintiff and State of Queensland as Defendant be removed to the Common Law Division of this Court. (2)Pursuant to s 5(2)(b) of the Act, the District Court proceedings, when removed into this Court, are to be transferred to the Supreme Court of Queensland. (3)The Defendant in this Court, Ms Moon, must pay the costs of the Plaintiff in this Court, the State of Queensland.