Blum v CHANDLER - [2019] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BLUM v CHANDLER
[2019] SASC 43
Judgment of The Honourable Justice Hinton
22 March 2019
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - CASES OTHER THAN UNDER CROSS-VESTING LEGISLATION
In January 2013 the plaintiff instituted proceedings in the District Court of South Australia against her treating obstetrician and Burnside War Memorial Hospital. The plaintiff sought damages from the defendants for negligence and for breach of contract in caring for her in the immediate period after the birth of her second child in January 2010. The plaintiff alleged that the defendants’ failings in caring for her left her with multiple long-term medical problems. The proceedings against the hospital were subsequently discontinued.
The plaintiff moved to Sydney in 2006, returned to Adelaide in 2009, during which time she gave birth to her second child, and then moved back to Sydney in 2011 where she remains living.
The plaintiff made an application to have the proceedings transferred to New South Wales pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA). The plaintiff submitted that whilst the proceedings were commenced in South Australia and whilst the applicable law is the law of this State, it would be in the interests of justice to have the proceedings transferred to New South Wales. In making this contention she relied on a number of factors including her poor health, which would make travelling to Adelaide for any hearing of the matter difficult, the fact that she is a single mother of two children, her extremely limited financial resources and the fact that the witnesses that she intends to call who all reside in Sydney would be inconvenienced by having to travel to Adelaide. The defendant submitted that the proceedings should remain in South Australia given that the plaintiff’s concerns could be alleviated by a combination of the appropriate judicial management of the trial coupled with the use of technology.
Held, dismissing the application; the Supreme Court of New South Wales is not, in the interests of justice the appropriate forum for the trial of the action.
Civil Liability Act 1936 (SA) ss 41, 52, 58; Judiciary Act 1903 (Cth) ss 38, 39, 79; Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5(2); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5(2); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(2)(b)(iii); Supreme Court Civil Rules 2006 (SA) r 115, referred to.
BHP Billiton Limited v Schultz (2004) 221 CLR 400, discussed.
Burns v Corbett (2018) 92 ALJR 423; Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177; Condon v Pompano Pty Ltd (2013) 252 CLR 38; Dawson v Baker (1994) 123 FLR 194; Rizeq v Western Australia (2017) 262 CLR 1, considered.

BLUM v CHANDLER
[2019] SASC 43
Application
HINTON J:
Introduction

On 27 January 2010 at the Burnside War Memorial Hospital in suburban Adelaide the plaintiff, Amanda Blum, gave birth by caesarean…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blum v CHANDLER

Details

AGLC: Blum v CHANDLER [2019] SASC 43
Case: [2019] SASC 43
Decision Date: 22 March 2019

CaseChat Overview and Summary

In the matter of Blum v Chandler, the plaintiff sought an order transferring the proceedings from the District Court of South Australia to the Supreme Court of South Australia for the purpose of cross-vesting the matter to the Supreme Court of New South Wales. The plaintiff, who is a dental hygienist, alleged that she suffered injuries during a childbirth that resulted in her being unable to work and requiring ongoing medical treatment. The defendant, a gynaecologist and obstetrician, denied the allegations and argued that her care was satisfactory.

The court had to determine whether the proceedings should be transferred from the District Court to the Supreme Court of South Australia and then cross-vested to the Supreme Court of New South Wales. The court considered various factors, including the substantive law to be applied, the forensic advantage or detriment conferred by procedural laws, the choice made by the plaintiff and the reason for that choice, substantive connections to the forum, the balance of convenience to parties and witnesses, and convenience to the court system. The court found that there was no significant difference in the grade of justice administered by the two courts and that the plaintiff's choice to proceed in South Australia was influenced by her desire to avoid cross-vesting. The court also found that the plaintiff's personal circumstances, including her inability to work and care for her children, did not outweigh the convenience of proceeding in South Australia.

The court dismissed the application for transfer and cross-vesting, finding that the burden of proceeding in Adelaide would be much greater for the plaintiff than it would be for the defendant if the trial were to take place in Sydney. The court noted that the availability of audiovisual technology meant that the plaintiff could attend the trial remotely, and that the defendant had undertaken to fund the link throughout the duration of the trial. The court ordered that the trial be listed well in advance of its commencement to allow for satisfactory arrangements to be made for the taking of evidence by audio-visual link.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

And helpfully in Dawson v Baker the Full Court of the Supreme Court of the Australian Capital Territory provided the following non-exhaustive list of factors to be considered:[11]·the substantive law to be applied;·the forensic advantage or detriment conferred by procedural laws;·the choice made by the plaintiff and the reason for that choice;·substantive connections to the forum;·the balance of convenience to parties and witness; and·convenience to the court system.[11] (1994) 123 FLR 194.The evidence In support of the plaintiff’s application I received three affidavits from her solicitor, Kasarne Burgan, sworn 9 November 2018, 26 February 2019 and 27 February 2019, and one affidavit from the plaintiff herself sworn 7 March 2019. In opposition the defendant filed an affidavit herself, sworn 20 February 2019, in addition to two affidavits from her solicitor, Edward Andrew Mitchell, affirmed 21 February 2019 and 22 February 2019. What follows is taken from those affidavits.The conduct of the proceedings to date The proceedings were instituted in the District Court on 25 January 2013. In his affidavit of 21 February 2019 Mr Mitchell sets out the history of the proceedings in the District Court since the Statement of Claim was first filed. Significantly, he refers to the fact that it was on 13 November 2015 that the plaintiff applied to have the proceedings transferred to this Court for the purpose of making an application to cross-vest the matter to New South Wales. That application to transfer was heard on 16 November 2015. Over two years passed during which no action was taken by the plaintiff with respect to the foreshadowed cross-vesting application. During that period the defendant obtained an expert report from Dr Michael McEvoy, gynaecologist and obstetrician, dated 7 May 2016. In his report Dr McEvoy expresses the opinion that the defendant’s care of the plaintiff was at all times satisfactory. That report was disclosed to the plaintiff’s solicitors on 16 May 2016. Dr McEvoy is based in Adelaide. In December 2017 the plaintiff instructed her now current solicitors. By email dated 19 February 2018 the plaintiff’s solicitors provided the defendant’s solicitors with a proposed Amended Statement of Claim. Subsequently, the defendant’s solicitors obtained a supplementary report from Dr McEvoy, dated 19 April 2018. In that report Dr McEvoy expresses the opinion that the defendant acted in a manner widely accepted in 2010 by specialist obstetricians in Australia as competent professional practice. It was not until 15 November 2018 that the interlocutory application seeking orders that the matter be transferred to New South Wales was filed.The plaintiff’s personal circumstances The plaintiff is a 39-year-old dental hygienist. In an April 2017 Nursing Services and Equipment Report it states:Amanda reports she now suffers from post-traumatic stress syndrome as a result of her injuries and associated complications. She states that she experiences feelings of tearfulness, lack of motivation, general exhaustion, and has a tendency to withdraw socially. She has also found it difficult to return to full-time work as a Dental Hygienist as she was unable to adequately perform her tasks due to her need for frequent toilet breaks, ongoing gastrointestinal pain and fatigue. Consequently, Amanda remains unemployed.Amanda currently lives in Sydney with her two (2) children, but Amanda’s injuries have greatly impacted her children. [A] and [J] have psychological illnesses which makes caring for them challenging. [A] suffers from anxiety, while [J], like Amanda, suffers from post-traumatic stress disorder. Due to the ongoing effects of her injuries Amanda’s ability to care for her children continues to be impaired. Amanda had previously been receiving government-assisted care for the children 50-90 hours per week, but this provision was ceased in May 2015 due to changes in the conditions for receiving care, highlighting the dangers of having to rely on public assistance over one’s lifetime.Since this time, Amanda has hired a babysitter two (2) mornings and evenings per week. Amanda is also unable to live with her mother again for assistance with the children as she is not permitted to live outside of Sydney due to a family court order requiring her to be within a reasonable distance from the children’s father. Amanda continues to suffer from episodes of small bowel obstruction that require regular treatment in hospital. Amanda also states that approximately once a week she experiences sub-acute episodes of obstruction that she treats herself by changing her diet to clear fluids. The bowel obstructions are accompanied by significant abdominal pain. Amanda continues to wear an incontinence pad constantly due to faecal incontinence. However, she also experiences episodes of constipation.Amanda struggles to gain or maintain weight and has been advised by her General Practitioner (GP) that if she is unable to put on weight she will need to be admitted to hospital. Amanda weighed 44kgs at the time of the assessment. She reported on 02 March 2017 that her weight is 45kgs.

Decision

Reasons for decision

I make plain that in arriving at my conclusion I am heavily influenced by the advantages that audiovisual technology offers. It should mean no greater inconvenience to the plaintiff than if she were to attend a courtroom in Sydney. I understand the defendant’s undertaking to be to fund the link throughout the duration of the trial so that the plaintiff may sit in on all that occurs. If I am wrong in my understanding as to the capability of the technology, or have misunderstood the breadth of the undertaking given, a further application may be made. Further, it will be necessary to list this trial well in advance of its commencement in order that satisfactory arrangements for the taking of evidence by audio-visual link may be made and, if they cannot, a further application made.Conclusion and orders The application is dismissed.

Ratio Decidendi

Legal Principle Established

Proportionately, the burden of proceeding in Adelaide will be much greater for the plaintiff than it would be for the defendant if the trial were to take place in Sydney.Consideration What is the appropriate court in which, in the interests of justice, this matter should be tried? The question is answered on the basis that between this Court and the Supreme Court of New South Wales there is no difference in the grade of justice as administered.[12] Procedurally, nothing has been brought to my attention that would suggest this matter would be dealt with in a manner materially different by either Court such that the interests of justice pointed to one or other as being the more appropriate forum. As to the time in which the trial may be heard in either Court, again I discern no telling difference. That said, there is nothing preventing me remaining seized of this matter for management purposes and, possibly, conducting the trial as if it were a special classification action.[13] No doubt, the Supreme Court of New South Wales has the same or similar capability. [12] Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [123] (Hayne, Crennan, Kiefel and Bell JJ) quoting with approval Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 31 at 103 (Gaudron J). See also Wainohu v New South Wales (2011) 243 CLR 181 at [45] (French CJ and Kiefel J), [105] (Gummow, Hayne, Crennan and Bell JJ).[13] Supreme Court Civil Rules 2006 (SA) r 115. The plaintiff concedes that the substantive law to be applied in this matter is the law of South Australia. The plaintiff adds that there is little difference between the law of contract and tort between this State and New South Wales that would be engaged in determining the action. With respect to the question of liability that submission was not, as I understood submissions, disputed. It was, however, disputed in relation to the question of damages. In this regard counsel for the defendant pointed to ss 52 and 58 of the Civil Liability Act which are unique to South Australia. The cross-vesting scheme contemplates that the court of one State may be required in the determination of a matter to apply the law of another State. It also necessarily contemplates that an appellate court in the State to which a proceeding is transferred may be called upon to apply the law of another State in the determination of an appeal from the trial of the matter transferred. Bearing this in mind, the mere fact that there is some difference between the law of each State is, of itself, of little consequence. The judicial function is the same. The approach to statutory construction is the same. As a medical negligence claim this case does not, respectfully, throw up issues that either Court is more specialist in dealing with. All this said, the starting point must be that this State is the appropriate forum having regard to the fact that the defendant is here, the alleged tort and breach of contract occurred here, and that the applicable law is the law of this State.