The plaintiff, Nicola Tester, seeks an order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("the Act") that this proceeding be transferred to the Federal Court of Australia.
The defendant consents to the proposed transfer.
Ms Tester commenced proceedings by statement of claim on 16 March 2018 arising out of operative treatment provided by the defendant for her gynaecological symptoms. As part of this treatment, the defendant utilised a sub-urethral sling which he knew, or ought to have known, would likely cause serious complications. Ms Tester sued the defendant in tort and breach of contract as well as for breaches of the Australian Consumer Law.
In support of her application, Ms Tester relies upon an affidavit of her solicitor, Nicolette Tyras, sworn 12 June 2020. Ms Tyras deposes to the fact that Ms Tester is a group member of the Gill and Ors v Ethicon SarI (NSD 1590 of 2012), "the Ethicon class action", in the Federal Court of Australia, and states that:
"Similar damages are claimed in this proceeding on behalf of the plaintiff as in the Ethicon class action."
This assertion perhaps does not fully reflect the likely subtleties of the position. Some clarity was obtained from the written submissions helpfully provided by counsel for the defendant, Ms Oreb. Ms Tyras indicated that the plaintiff also relies upon, and endorses, the submissions of Ms Oreb.
It seems that the position accepted between the parties is as follows:
"On 16 March 2020 the applicants in a significant number of Federal Court proceedings involving Ethicon served a schedule entitled "Commenced Proceedings". The schedule set out which of the applicants in the Federal Court proceedings and in proceedings in other jurisdictions (including Ms Tester) were group members in either the Ethicon class action or one of the other two Federal Court class actions concerning the use of a vaginal mesh: see West v Rane (No 2) [2020] FCA 616 [29]."
Counsel for the defendant explained further in her submissions:
"From that date, Ms Tester has asserted (as have her legal representatives), that she is a group member in the Ethicon class action. Dr Trueman accepts that Ms Tester is, prima facie, a group member."
It is against this background that the transfer of this proceeding to the Federal Court is sought.
Section 5(1) of the Act provides relevantly as follows:
5 Transfer of Proceedings
(1) Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court, and
(b) it appears to the Supreme Court that:
(i) (Repealed)
(ii) having regard to:
(A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court,
(B) the extent to which, in the opinion of the Supreme 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 Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and
(C) the interests of justice,
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be,
(iii) (Repealed)
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.
In Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 ("Valceski"), Brereton J dealt with an application to transfer proceedings commenced in the Equity Division of this Court to the Family Court of Australia. His Honour identified the relevant considerations to be:
Whether, but for cross vesting legislation, the relevant proceeding would have been incapable of being instituted in the Supreme Court but capable of being instituted in the Family Court;
The extent to which the matters for determination in the relevant proceeding arise under a law of the Commonwealth and are not otherwise within the jurisdiction of the Supreme Court, and
The interests of justice.
There is certainly no issue that the Federal Court of Australia has jurisdiction to hear the proceedings. Indeed there are many similar proceedings both representative and otherwise already before that Court.
Ms Oreb submitted that the proper interpretation of s 5(1) in the circumstances is that I do not need to make any formal finding about the matters set out in s 5(1)(b)(ii) A and B, and C, that the interests of justice, can be an overarching consideration, and that once I have determined that the interests of justice make it "more appropriate" that the relevant proceeding be determined by the Federal Court, I must transfer the relevant proceeding; it is not a discretionary matter.
In the context of the considerations here, that seems to me to be a persuasive and sensible approach.
When determining the question of the interests of justice, in Valceski, Brereton J at [60] and [69] emphasised the need to adjudge this test by analysing objective factors to facilitate identification of the natural forum in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party. It is not necessary that the Supreme Court of New South Wales be a clearly inappropriate forum; it is both necessary and sufficient that in the interests of justice, the second Court is "more appropriate". If one Court is more appropriate than the other, however so slightly, then a transfer to the more appropriate Court is mandatory. The Court does not retain any residual discretion to refuse to transfer the proceedings in those circumstances: Valceski at [70].
I adopt and agree with the approach taken by Brereton J. I take the view that such considerations are persuasive and apply directly to the circumstances here. The potential for inconsistent approach and inconsistent conclusions are clear if the matters proceed on the question of liability in different courts. The practical benefits of pursuit in the Federal Court, which has already dealt with and continues to deal with matters like Ms Tester's arising out of the negligent use of vaginal mesh, is obvious.
To the extent that it needs to be articulated, Lee J when dealing with a directions hearings in the Ethicon class action West v Rane (No. 2) [2020] FCA 616 at [41] noted this:
"…If a cross-vesting application is made in relation to any State Proceedings which falls into this category, then it will be a matter for that state court exercising federal jurisdiction (because the individual proceeding is part of a wider federal "matter" involving the same claim for personal injury damages) to make a determination as to where the interests of justice lie. It may be that a judge hearing such an application would see that there is some merit in those individual proceedings being transferred to this Court so that they can be dealt with in the same manner as the Federal Proceedings commenced in the same circumstances, but it would be a matter for that judge in the state court to take the course that was regarded by them as best reflecting the interests of justice."
I am of the view that it is in the interests of justice, having considered all aspects of s 5(1) of the Act, that these proceedings be transferred to the Federal Court of Australia.
[2]
Orders:
1. Pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) this proceeding is transferred to the Federal Court of Australia.
2. The proceeding is to be listed for directions before Justice Lee (or whichever Judge in the Federal Court is managing the Ethicon matters) on a date to be notified to the parties in the next two to three weeks.
3. The costs of this notice of motion are to be costs in the cause.
[3]
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Decision last updated: 17 June 2020