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 section to her second child. In January 2013 the plaintiff instituted proceedings in the District Court of South Australia seeking damages from the hospital and her treating obstetrician, the defendant, for negligence and for breach of contract in caring for her in the immediate period after the delivery of her child.
Proceedings against the hospital have since been discontinued.
On 16 November 2015 the proceedings were transferred from the District Court to this Court.
The plaintiff moved to Sydney in 2006. She returned to Adelaide in 2009. Her first child, who returned to Adelaide with her, was then two years old. Her intention in returning to Adelaide was to have the benefit of the support of her family as a sole parent of two young children. As it turns out the plaintiff returned to Sydney in April/May 2010 with her two children and recommenced her relationship with the father of her second child. That relationship broke down in 2011. The plaintiff remained in Sydney raising her two children on her own. She continues to live in Sydney.
On this application the plaintiff seeks orders transferring the proceedings to the Supreme Court of New South Wales pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) (Cross-vesting Act).
The claim
As mentioned, the plaintiff gave birth to her second child by caesarean section. The procedure was undertaken by the defendant. In her Amended Statement of Claim the plaintiff alleges that following the caesarean section being performed she developed Ogilvie’s syndrome, a pseudo obstruction of the caecum, which caused an acute dilatation of the caecum which, in turn, caused a perforation in the ascending colon. At the time acute dilatation of the caecum was a recognised complication following caesarean section. The plaintiff asserts that in the course of undertaking her post-operative care the defendant, amongst other things, failed to diagnose that she had developed Ogilvie’s syndrome and failed to administer care that would have prevented the resultant perforation of the ascending colon.
The perforation required surgical intervention which took place on 4 February 2010 when part of the plaintiff’s colon was removed and an ileostomy was constructed leaving the plaintiff with a stoma.
On the basis of the above the plaintiff asserts that the defendant was negligent and acted in breach of her contractual obligation to provide medical services to a professional and competent level.
In her Defence the defendant contends that she did not damage the plaintiff’s bowel during the course of the caesarean section. She says that the plaintiff was closely monitored by numerous nursing staff in addition to the defendant in the period after delivery of her child and that her condition before discharge was consistent with a normal post-caesarean course. The plaintiff’s post-operative presentation and course were not suggestive of a diagnosis of acute dilatation of the caecum or other obstruction or pseudo obstruction of the bowel. The defendant denies that she was negligent or provided substandard medical services. She states that her care of the plaintiff accorded with widely-accepted practice amongst obstetricians in Australia in 2010 and that she is entitled to the benefit of the defence provided for in s 41 of the Civil Liability Act 1936 (SA) (Civil Liability Act).
The applicable principles
The plaintiff is resident in New South Wales, the defendant in South Australia. Accordingly, ss 38 and 39 of the Judiciary Act 1903 (Cth) have the effect that this Court is exercising federal jurisdiction.[1] Assuming the cross-vesting laws to be laws regulating the exercise of jurisdiction,[2] an interesting question arises as to whether the applicable cross-vesting law is that contained in the Cross-vesting Act picked up by s 79 of the Judiciary Act 1903 (Cth), or, the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (on the basis that the exception contained in s 79 of the Judiciary Act 1903 (Cth) applies). In the end it is unnecessary to resolve this question because in each instance the content of s 5(2)(b)(iii) is virtually the same.
[1] Burns v Corbett (2018) 92 ALJR 423 at [24]-[26] (Kiefel CJ, Bell and Keane JJ); Rizeq v Western Australia (2017) 262 CLR 1 at [66]-[67] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[2] See Rizeq v Western Australia (2017) 262 CLR 1.
Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) provides:
(2) Where:
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and
(b)it appears to the first court that:
…
(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 other Supreme Court.
In BHP Billiton Ltd v Schultz the High Court distinguished the approach to a transfer application made under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) from that to be invoked in determining whether a stay should be granted on the grounds of forum non conveniens.[3] With respect to the former, Gleeson CJ, McHugh and Heydon JJ said:[4]
In Bankinvest, Street CJ said:
“The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice … It calls for what I might describe as a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.”
In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. 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 of 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.
[footnote omitted]
[3] (2004) 221 CLR 400.
[4] BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [13]-[14].
Turning to the content of the phrase “interests of justice” and the question of which forum is more appropriate in the interests of justice, Gleeson CJ, McHugh and Heydon JJ added:[5]
The reason why a plaintiff has commenced proceedings in a particular court might, or might not, concern a matter related to the interests of justice. It might simply be that the plaintiff’s lawyers have their offices in a particular locality. It is almost invariably the case that a decision as to the court in which an action is commenced is made by the plaintiff’s lawyers, and their reasons for making that choice may be various. To take an example at the other extreme, it might be because a plaintiff is near death, and has a much stronger prospect of an early hearing in one court than in another. 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. If a plaintiff in the Tribunal were near to death, and, in an application such as the present, it appeared that the Supreme Court to which transfer was sought could not deal with the case expeditiously, that would be a consideration relevant to the interests of justice. Justice would ordinarily dictate that the interest of the plaintiff in having a hearing would prevail over the interest of the defendant in such benefit as it might obtain from the plaintiff’s early death. The capacity of the Tribunal to deal expeditiously with cases has always, and rightly, been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.
[5] BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [15].
Their Honours then referred to the interests of justice as being neutral where one party claims advantages in proceeding in the court of one State that are matched by the advantages that the other party may obtain in proceeding in the court of a different State.[6]
[6] BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [16].
The joint judgment refers to the normal practice in Australia of jurisdiction in personal actions being determined by the location of the defendant and, in the exercise of federal diversity jurisdiction, in the “natural forum” being the forum determined as appropriate having regard to “connecting factors” such as convenience and expense, availability of witnesses, where the parties reside or carry on business, and the law governing the matter.[7] Gleeson CJ, McHugh and Heydon JJ then stated:[8]
In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.
[7] BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [17]-[18].
[8] BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [19].
Section 5(2)(b)(iii) of the New South Wales Act was no different in its terms to the same section in each of the South Australian and Commonwealth cross-vesting Acts. Plainly, the task to be undertaken in determining whether the interests of justice require that a matter be transferred is evaluative. As Kirby J observed in BHP Billiton Ltd v Schultz:[9]
I recognise that the decision of Sully J was not, as such, made in the exercise of a common law discretion. It involved the exercise of a power afforded to the Supreme Court by statute. By the same token, that power involved the judicial evaluation of a number of factors. It required an ultimate judicial decision framed in terms of criteria expressed in very general language (“the interests of justice”, “more appropriate”). It is inherent in such general language that cases will arise where there is room for difference of judicial opinion. That fact would restrain a court such as this from disturbing the evaluation by the primary judge where the “connecting factors” were otherwise finely balanced. …
[9] (2004) 221 CLR 400 at [172].
Conveniently, in Cini v Pets Paradise Franchising (SA) Pty Ltd Bleby J reduced the principles derived from BHP Billiton Ltd v Schultz to the following:[10]
•    It is not relevant to ask whether this Court is justified in refusing to exercise the jurisdiction conferred on it. Rather, it must ensure that the case is heard in the forum dictated by the interests of justice.
•    The question is not whether this Court is an inappropriate forum. It is both necessary and sufficient that, in the interests of justice, the other court is more appropriate.
•    The court is required to ensure that cases are heard in the forum dictated by the interests of justice. It is not a question of the exercise of a discretion.
•    The interests of justice are not necessarily the same as the interests of any one party.
•    Because it is necessary to identify the more appropriate forum, no specific emphasis can be given in favour of the choice of forum made by the plaintiff.
•    It is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.
[footnotes omitted]
[10] (2008) 102 SASR 177 at [8].
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.

The plaintiff has had extensive ongoing treatment since the birth of her second child. The ileostomy has been reversed but the plaintiff continues to suffer disabling symptoms including gastrointestinal pain and discomfort, rectal bleeding and ongoing infections and general chronic pain. The pain affects her whole body and in particular her back, hips, neck, shoulders and, most of all, her abdomen, which can be completely debilitating at times.
Additionally, the plaintiff experiences intermittent small bowel obstructions requiring frequent hospitalisation. Because hospitalisation takes the plaintiff away from her children, she attempts to manage her condition from home as much as possible in order to limit hospitalisation. This involves the use of a liquid diet, pain medications, antibiotics and rest. She will attend hospital only when the pain is unbearable or further investigations are required. When admitted to hospital the plaintiff attempts to limit the time spent to a single day or night in order to return to her children.
The plaintiff currently weighs approximately 48 kg. She has lost considerable weight due to her gastroenterological condition. There are a number of other complications arising both from the plaintiff’s condition and the steps she has taken to cope. These include the following:
·She suffers from poor nutrition as a consequence of her liquid diet which is necessary to manage her incontinence. Her poor nutrition negatively impacts upon her general health and susceptibility to illness and infection as well as contributing to fatigue.
·The plaintiff sleeps poorly and has to get up to go to the toilet at least twice each night where she remains for over an hour on occasion. Getting out of her bed is also difficult due to her lack of core muscle strength following multiple procedures. The plaintiff’s lack of sleep contributes to her fatigue and poor health. The consequence is that it is difficult for her to manage day-to-day living and social activities.
·Due to her partial colectomy and abdominal adhesions the plaintiff regularly experiences loss of bowel control, chronic pain, nausea and dizziness which also causes her to faint on occasion. Her incontinence is unpredictable and uncontrollable and causes significant embarrassment and anxiety. So unpredictable is her bowel disorder that the plaintiff self-medicates with zapid-imodium sometimes without success and has to abstain from eating.
·The plaintiff suffers severe gastroparesis. She cannot eat large meals. She has difficulty eating and experiences severe pain and spasms as a result. In addition she suffers from significant feet and finger swelling and pain, particularly in the mornings, and has anemia for which she requires iron infusions every six to 12 months.
·The plaintiff suffers acute pain around her kidneys, extending to her liver, pelvis and ovary area, requiring rest. She often feels unsteady on her feet and is at risk of falling or fainting at these times. She regularly suffers severe headaches and migraines.
·She sees her general practitioner regularly for scripts and monthly blood tests. Her anemia, iron transfusions and other electrolyte derangements require that she have regular blood tests every one to three weeks. Recently, her exhaustion has impacted upon this regime.
In a report dated 29 May 2014 Dr Sean Griffin, a gastroenterologist, reported:
The ongoing medical issues for Amanda will include; dense abdominal adhesions, gastroparesis and bacterial overgrowth. I suspect bile salt diarrhoea may also be a component of Amanda’s problems given she has had an ileo-caecal resection. The usual treatment for gastroparesis has unfortunately been unsuccessful in Amanda’s case. This medication is Domperidone and resulted in a lot of abdominal pain when Amanda tried that particular treatment. I am afraid this probably reflects the number of adhesions around Amanda’s abdomen. Amanda also requires a Vitamin B12 injection and this is likely to be a life long requirement given she has had an ileal resection and this is where B12 is absorbed into the body.
Unfortunately Amanda is going to have life long abdominal problems, given the intra abdominal adhesions that have resulted from the small bowel perforation and resulting peritonitis. Adhesions are very difficult to treat and unfortunately are likely to lead to episodes of subacute bowel obstruction in the future. It is certainly possible that Amanda may well require more surgery in the longer term if she is getting small bowel obstruction from the adhesions. The small bowel issues and intra-abdominal surgery in general have probably resulted in gastroparesis. This will mean that Amanda will have to eat small meals for life. As mentioned, she is unable to tolerate Domperidone which is the best medication available for treating gastroparesis. Other avenues of treatment may have to be explored if Amanda’s weight goes down, which is always possible.
I am afraid Amanda is going to have long term medical issues due to her previous small bowel perforation that initially went unrecognised, resulting in significant peritonitis. Amanda of course did have to have ileostomy for quite some period of time and this in itself is a disfiguring surgery that will have a psychological impact on patients.
Pain, low weight, and vitamin deficiency are going to be long term issues. I would anticipate that Amanda will require careful monitoring of her weight and abdominal symptoms either by herself or another Gastroenterologist or Surgeon. Chronic pain issues are also a factor for Amanda’s future health and hopefully won’t require heavy medication, although this is also a possibility.
Dr Griffin’s predictions regarding the plaintiff’s long-term medical problems seem to have eventuated as evinced by the following observations of the plaintiff’s general practitioner, Dr Guirguis, specified in his recent report of 26 February 2019:
Amanda suffers from multiple medical problems both of the physical and psychological nature:
List of symptoms physical and psychological;
- PT SD and anxiety.
- Incontinence.
- Several [sic] fatigue and weakness.
- Headaches and migraines.
- Severe chronic pain.
- Obstructions – therefore she needs to be able to access the hospital/specialists she is in the care of.
- Gastroparesis – this affects her every day diet is quit [sic] restrictive.
- Careful dietary needs so she mostly prepares food at home. She also has got to go on liquid diet when she get [sic] bowel obstructions.
- Short gut syndrome.
The plaintiff also sees a cardiologist, Dr Michelle McGrady once per year. Her treating gastroenterologists are Dr Michael Boyle and Dr Griffin. She consults the former every three months and the latter every three to six months in addition to when her abdominal pain occurs.
As a consequence of her medical condition I understand that the plaintiff has been unable to work for several years. I note that in his report dated 16 September 2015 Dr Meagher stated:
I asked specifically again about the part time work and she said she did it on and off in 2011 and 2012 but it was very much on a day-to-day basis and was never really regular. She wasn’t able to work every week during this period of time and again stated that she just simply had to face up to the fact that she can’t do this part time work because of the recurrent hospital admissions, the problems with intermittent faecal urgency and the incontinence, the fact that she has no back strength. She explained that she has to lean over as a dental hygienist for long periods of time and she just finds it almost impossible to do that while she was able to do that without trouble in the past. She became a bit teary explaining one of the episodes of incontinence while she was doing an extraction on a child when she was working part time. She also explained that she just felt generally nauseous much of the time and felt tired and unwell and while she’d love to get back to work part time or full time it’s just not a viable possibility. Realistically I think it is unlikely given Ms. Blum’s current symptoms that she can get back to part time or full time work in any capacity.
Dr Meagher considered it unlikely that the plaintiff would be able to return to work part-time or full-time in the foreseeable future, notwithstanding that as at the time of his report her medical symptoms had stabilised.
I also note that in June 2017 Dr Griffin was of the view:
I think Amanda does have some capacity to work although long hours probably are not going to be achieved. This is primarily because of diarrhoea and nausea. She does experience quite a bit of urgency. The issues are not so great however that Amanda is not able to care for herself and her children. I think she is also able to manage her household as she would be within easy reach of toilet facilities. Given no travel is required to remain in her own household, issues such as finding a toilet become less important.
As mentioned, the plaintiff resides in Sydney and is a single mother of two children, aged 12 and nine. The children currently attend school in Sydney. There are Family Court orders in place governing the parenting of the younger of the two children. Those orders provide for the child to live with the plaintiff and spend one night a week and every second weekend with her father. The same orders prevent the plaintiff from living or residing outside of the Sydney metropolitan area and require her to live within a reasonable distance of the younger child’s father. The plaintiff has complied with those orders to date.
The plaintiff has the sole care of the older child. His father enjoys twice weekly visiting rights but the child does not stay overnight with his father.
Both of the children have been diagnosed as suffering from anxiety which is exacerbated when they are away from their mother.
Dr Guirguis expressed concern at the prospect of the plaintiff’s two children having to travel to Adelaide for a trial. The Doctor said:
She is trying to support her family.
Her children have also been suffering from anxiety and have challenges coping with the emotional stress of their mother being unwell, in particular [J] who needed constant specialist care at Sydney Children’s Hospital for renal/urology and enuresis issues as well as his issues with schooling and behaviour problems as he is having overwhelming difficulties trying to adjust to high school.
…
Both children are at school and her eldest [J] has just commenced high school this year. This has raised many issues in particular for her son [J], as Amanda would have to take him with her where ever she is, as he needs support and has no other care options, and this would result in critical time missed from high school.
This will be detrimental to [J]’s well being and education outcomes and additionally, [J] also suffers anxiety and can not be away from his mother.
At 11 years old he is struggling to manage the changes of starting high school and their situation is very delicate one with a flare-up of his anxiety over the last few months. I will be issuing a mental health care plan for [J] who will then also [be] required to maintain regular visits to a registered psychologist.
Also, [A] also suffers separation anxiety from her mother and there are court orders where Amanda needs to facilitate time with her father.
Taking children out of school would be disruptive and unsettling and only further disadvantage them.
Since May 2015 the plaintiff has ceased to have the benefit of government subsidised in-home care services. The consequence was that the plaintiff hired a childcare worker to assist her with the children two nights a week and two mornings per week. The childcare worker was paid $15 an hour. Recently, the plaintiff let the childcare worker go as she could no longer afford the expense. The plaintiff utilises after-school care at a community-based boys and girls brigade from 3 pm and 6 pm each day and holiday/vacation care.
In 2015 Dr Meagher recorded:
I should state at the outset that I am a colorectal surgeon and I am honestly not an expert in domestic assistance but I did ask Ms. Blum some general questions about this. She explained that she used to get 50 to 90 hours of help per week through some form of Sydney Homecare government system which I am not an expert on. This gave her really good help with her children and was paid for by the government. However Ms. Blum explained that like many of the above situations it really is a complicated thing. She explained that she has to say her children are at significant risk of harm to get this assistance and she just feels very uncomfortable saying this any more so she no longer gets this assistance. I presume this situation has changed since you wrote your letter as the assistance is mentioned in your letter.
At present Ms. Blum gets helped by a cleaner for 2 to 3 hours per week. There is also some help from the father of her first son especially at times when there is a crisis such as when she needs to go to hospital. Occasionally her Mum also flies up from Adelaide – the frequency of those visits varies as well as the duration but Ms. Blum estimated that her Mum probably comes up for about 10 days every 4 to 6 weeks but it does vary enormously. Ms. Blum then mentioned that she is getting a nanny for a couple of hours 2 to 3 mornings per week and 2 to 3 evenings per week. The frequency varies a bit but we figured out together that this added up to about 11 ½ hours per week with the nanny.
Ms. Blum explained that she just has great trouble doing domestic things at home because of her abdominal weakness and her back problem. The main issue however is the intermittent episodes of obstruction when has to drop everything and go into hospital and then she has to rely on her previous partner sometimes or her Mum if she is around. It really is a difficult thing for her to juggle she explained. I have to say at the end of our interview I was still unsure of how Ms. Blum is able to manage her children.
The plaintiff is in receipt of a disability pension of $867.00 a fortnight. She also receives child support of $800.00 a month from the older child’s father. Her rent is $700.00 a week. She has considerable expenses including her medical bills that require strict budgeting. She cannot afford to fly to Adelaide nor to stay here in order to attend medical appointments as part of the pre-trial process, or for the purposes of trial preparation or to give evidence and be present during the trial itself.
The defendant’s circumstances
The defendant is a specialist obstetrician and gynaecologist. She consults from the Burnside Specialist Centre which is located within Burnside War Memorial Hospital. The defendant works full time. Her practice is busy with patients booked for consultations eight months in advance. At the time of a patient’s first attendance, appointments for antenatal care are made to the conclusion of the pregnancy. Ninety-eight per cent of the defendant’s patients choose to have their baby at the Burnside War Memorial Hospital. She delivers 20 babies each month on average.
The nature of the defendant’s practice is such that any holidays that she hopes to take are booked 12 months in advance. Currently, she has booked leave for the period 23 September to 17 October 2019 during which period she intends to be overseas. A locum has been arranged to cover for her during this period.
The defendant works with another private obstetrician and gynaecologist. Together they cover each other’s patients.
Having to leave her practice to attend any trial will be disruptive, but the disruption will be greater if the defendant is required to travel to Sydney. In Adelaide the defendant has some hope of consulting with patients around court sitting times.
The anticipated conduct of the trial
All of the plaintiff’s expert witnesses and lay witnesses practise in and reside in Sydney and the cost of arranging travel, accommodation and witnesses’ expenses would be cost prohibitive for the plaintiff. Those witnesses include the following:
·Dr Michael O’Conner, medico-legal gynaecologist and obstetrician;
·Dr Alan Meagher, medico-legal colorectal surgeon;
·Ms Jane Burns, medico-legal registered nurse;
·Ms Lindy Williams, medico-legal occupational therapist;
·Dr Patricia Jungfer, medico-legal psychiatrist;
·Dr Stephen Allnutt, medico-legal psychiatrist;
·Dr Sean Griffin, treating gastroenterologist; and
·Ms Beatriz Mesuraco, treating psychologist.
It is contended that the complexities in the matter are such that if these witnesses were to give evidence via video link the plaintiff would be disadvantaged. That disadvantage is not explained.
The reason for the plaintiff having engaged medico-legal experts in Sydney was convenience.
In addition to the medical witnesses the plaintiff currently intends to call a number of lay witnesses who provide her with gratuitous and paid domestic services. Those witnesses are all resident in Sydney. Their evidence is relevant to establishing economic loss and other heads of damage. Whilst the plaintiff accepts that the breaches of duty of care alleged occurred in South Australia the vast majority of her losses, including economic loss, will be incurred in New South Wales. When these facts are added to the prohibitive cost for the plaintiff of running a trial in South Australia, she contends the Supreme Court of New South Wales is the appropriate jurisdiction to hear the matter in its specialised medical negligence case list.
Mr Mitchell has made enquiries of the List Clerk at the Supreme Court of New South Wales. As of 17 December 2018 there were two dates available on which the Court could accommodate a two-week trial — 12 August 2019 and 12 December 2019. Mr Mitchell contacted the List Clerk again in February 2019. At this time he was advised that the first available date for a two-week trial was 5 August 2019. He was also advised that if the trial were to last longer than two weeks a trial could not be given until February 2020 onwards.
It seems likely that any trial will run into a third week.
Mr Mitchell contacted the Listings Officer of this Court. He was advised in February 2019 that a two-week trial could be accommodated in July 2019 and a three-week trial in August 2019. Mr Mitchell made similar enquiries to the Client Services Officer of the District Court. He was told that a two-week trial could be listed for either 4 November 2019 or 2 December 2019. A three-week trial could be accommodated in the District Court commencing 4 November 2019.
Mr Mitchell refers to the witnesses that it is anticipated the defendant will call. They include 11 nurses and two physiotherapists who were working at Burnside War Memorial Hospital at the relevant time and were involved in the care of the plaintiff. Mr Mitchell understands those nurses and physiotherapists to be located in South Australia. My understanding is that the nurses include five midwives who each cared for the plaintiff. Mr Mitchell has consulted the Director of Clinical Operations at Burnside War Memorial Hospital. He was informed that if all five midwives who continue to work at the hospital were required to give evidence it would be very disruptive to the hospital’s operations. Mr Mitchell has been advised by senior counsel that it is likely that all 11 nurses and the two physiotherapists will be required to give evidence. In her affidavit of 26 February 2019 Ms Burgan expresses some surprise at this. The plaintiff’s case does not challenge the various notes made by the health care professionals at the hospital. Rather she relies upon them. In those circumstances, bearing in mind the lapse of time, what could the nurses and others add that was not noted at the time?
Senior counsel has also advised Mr Mitchell that he intends to call Dr McEvoy as well as Dr Randall Williams, general surgeon, who operated on the plaintiff during her second admission to Burnside War Memorial Hospital. Mr Mitchell has consulted these doctors. He has been advised that they would find it difficult to travel to New South Wales to give evidence due to their ongoing professional commitments. As for the two physiotherapists, they both still share the post-natal physiotherapy follow-up duties at Burnside War Memorial Hospital in addition to conducting their own physiotherapy practices. They both indicated that it would be difficult to travel to New South Wales for the purposes of giving evidence.

In her affidavit of 26 February 2019, Ms Burgan expressed the view that it is highly unlikely that this matter will be ready to proceed to trial in September 2019. She bases that opinion on the fact that the plaintiff is yet to be assessed by defence experts and that, after those assessments occur, follow-up reports from the plaintiff’s experts will be required. Ms Burgan considers it more likely that the matter will be ready for trial commencing after February 2020.
Further, and in any event, senior counsel briefed to conduct the trial for the plaintiff is resident in Sydney and unavailable to start any trial in the District Court on 4 November 2019.
Submissions
Counsel for the plaintiff commenced his submissions referring to the reason why the proceedings were issued in this State. The plaintiff considered that because the actions of her obstetrician occurred in this State, it was in this State that she was required to commence proceedings. It was only later when she instructed solicitors in Sydney that she became aware she could have done so in Sydney.
Next counsel referred to the fact that there was no suggestion in this matter that the applicable law, which it was conceded would be the law of South Australia, was materially different to the law of New South Wales.
Counsel then pointed to the evidence regarding the speed with which the respective courts of New South Wales and South Australia could accommodate a two or three-week trial. In the course of making this submission he submitted that realistically the matter could not be prepared in time for a trial later this year. In this regard he repeated the point made by Ms Burgan — that the plaintiff was yet to be assessed by defence medico-legal experts whose reports would in all likelihood have to be responded to by those experts that the plaintiff had already instructed.
The next factor referred to was the cost to the plaintiff of running a trial in Adelaide compared to in Sydney. Her financial resources are extremely limited. To date the plaintiff’s solicitors have secured funding from a litigation assistance fund limited to meeting the cost of disbursements only. Her legal advisors are acting “on spec so to speak”. By contrast the defendant has the financial might of insurers standing behind her.
Counsel conceded that the convenience of witnesses and the costs associated with conducting the trial in Adelaide could largely be ameliorated by the use of audiovisual links. Nonetheless, he pressed the plaintiff’s health and personal circumstances as tipping the balance in favour of the transfer of the proceeding to New South Wales. He closed his submissions with the following:
… I just stress that we have got an individual plaintiff here who is on a disability support pension. She receives some child support from one of her children’s parents. She is plagued by ongoing ill health. She has difficulties with the health and mental state of her children, or at least one of them in particular. In all those circumstances that is a tipping factor.
As far as the matter being heard, I hear your Honour and that your Honour could, either your Honour or some other justice of this court, or even if it went back to the District Court, have the matter handled and of course handled perfectly adequately. But realistically the matter is not going to come up for trial until later this year and most probably something like very early 2020 is going to be the likely date.
…
even though the plaintiff does have some support here in South Australia, for the reasons set out in the affidavits it would be far, far easier and better for the plaintiff if she was able to prosecute her action in New South Wales …
Counsel for the defendant commenced by referring to the fact that the use of audiovisual links meant that the inconvenience and cast of the various experts that in all likelihood would give evidence disappeared. Further, it was possible, he submitted, for the plaintiff to stay in Sydney and give her evidence via video link, and, with a degree of indulgence, to use the video link to instruct her lawyers. It was also possible that a trial could be run within school hours and around school holidays so as to minimise interference with the plaintiff’s children’s schedule. Counsel contended that the prudent management of the trial, coupled with the use of technology, would see matters of inconvenience and cost largely evaporate.
Counsel for the defendant did not concede that the law to be applied was the same in this State as it was in New South Wales. In particular s 58 of the Civil Liability Act would be engaged to the extent that gratuitous services form part of the plaintiff’s claim. Section 58 was unique to South Australia. Similarly, s 52 of the Act that dealt with non-economic loss was unique to South Australia and would also be engaged.
Counsel then referred to the affidavit material filed by the plaintiff in support of her application. He suggested that there were gaps in the material and that the Court should be slow to rely upon the assertions made. For example, there was no evidence given as to the support the plaintiff’s parents could provide if the trial were conducted in South Australia. Further, the Court did not know what the fathers of the two children could provide in the way of support if the plaintiff travelled to Adelaide. Further again, to the extent that the plaintiff disclosed her income and expenses her expenditure exceeded her income. If this were right, on what is she living? These factors it was said should cause the Court to pause before granting the application.
Counsel repeated that whatever concern the Court might have could be alleviated by a combination of the use of technology and appropriate judicial management. In this regard counsel also advised the Court that he was instructed to give an undertaking that the defendant would meet all reasonable costs of providing audiovisual link facilities associated with the trial if it took place in South Australia. Alternately, his client would fund reasonable travel, accommodation and childcare costs associated with the trial being conducted in South Australia. When pushed by counsel for the plaintiff as to whether or not those undertakings were in the alternative, counsel for the defendant indicated that his client would not be difficult and that if the plaintiff wanted to give her evidence in person for, say, two days and then return to Sydney to use the video link then she would be funded to do so.
In reply counsel for the plaintiff submitted:
… I hear your Honour’s comments that we are moving into a new electronic world, and we have been for some time, I accept all of that. But for the plaintiff personally to be able to give evidence in her own case in a matter that has been of great importance to her and has had a significant - a major - affect on her life since 2010, to be able to give that evidence live, in her home State, in New South Wales, without having to undergo the stress of coming to South Australia or we say the much less acceptable situation of giving her primary evidence on video link, that is the significant factor that should tip your Honour.
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.
I accept the plaintiff’s explanation for instituting the action in this State. I accept that had she known she could have commenced the action in New South Wales she would have. However, in instructing her then solicitors to institute the proceedings in this State she must have understood that she could be required to attend a trial in this State. That is not a significant matter of itself, but the delay in bringing this application has allowed the defendant to proceed for a not insignificant period of time on the assumption that the matter would proceed to trial in this State in the normal way. That has resulted in the defendant retaining a local expert and local counsel. As time has passed her solicitors have become steadily more entrenched in the matter.
I appreciate that this application was foreshadowed in 2015. But nonetheless it was not made until late 2018.
I accept that if witnesses are required to travel to give their evidence in person, the plaintiff will incur great expense and great inconvenience will be caused to those witnesses. That inconvenience extends to the patients of the various health care professionals for whom alternate arrangements would have to be made due to the non-availability of their preferred health care professional. However, I agree with counsel for the defendant that this cost and inconvenience becomes no greater than that which would be occasioned if the trial were heard in Sydney if evidence is taken using audiovisual links. There is no impediment to that course being taken and every reason to adopt it.
The plaintiff’s solicitors are located in Sydney. So too is her preferred counsel. I do not understand that her counsel has become involved in the matter to the extent that it would be impractical to find alternate local counsel. Further, I do not understand that the plaintiff’s Sydney solicitors cannot make use of a local agent willing to act for the plaintiff on the same basis. Again, as counsel for the defendant said, the use of audiovisual links and the prudent management of the trial can be used to assist the plaintiff’s lawyers in running the trial, even if her solicitors are remote.
The application turns on the plaintiff’s personal circumstances. There can be no doubt that she is very unwell and that day-to-day living and caring for her children is challenging. However, she too can give evidence by audiovisual link from Sydney. The audiovisual link can remain open allowing her to sit through as much or as little of the trial as she wishes. The same applies to her solicitors. Sitting times can accommodate the needs of her children. There is no need to interfere with their daily routine or to interfere with it to any great extent. I add here, that I am influenced in part by the absence of any information regarding the extent to which the fathers of the two children may assist and why, the plaintiff already making use of after-school care, similar assistance cannot be resorted to.
I see no forensic unfairness or prejudice in the trial being conducted by the plaintiff and her solicitors remotely using audiovisual links. I agree with counsel for the defendant that inconvenience and cost factors are largely neutralised by the defendant’s undertaking to meet the cost of an audiovisual link to Sydney for the duration of the trial in any event. I further agree that the prudent management of the trial will ensure that the plaintiff is able to present her case fully.
The defendant’s undertaking to meet the cost of the plaintiff travelling to Adelaide to give her evidence in person, if she chooses to do so, in addition to her accommodation and the costs associated with her children accompanying her, should she so wish, removes any residual inconvenience occasioned by the location of the trial. Such inconvenience as that travel may occasion the plaintiff and her children will be the product of her choice.
In the circumstances I cannot say that the Supreme Court of New South Wales is the appropriate forum in which this matter should be tried in the interests of justice.
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.