Brejcha v Krieger

[2020] NSWSC 964

Supreme Court

New South Wales

Medium Neutral Citation:

Brejcha v Krieger [2020] NSWSC 964

Hearing dates:

24 July 2020

Decision date:

28 July 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(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 costs of this notice of motion are to be costs in the cause.

Catchwords:

CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – where plaintiff is member of a class action in the Federal Court – whether it is more appropriate and in the interests of justice for the proceedings to be determined by the Federal Court

Legislation Cited:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5

Cases Cited:

Gill v Ethicon Sarl (No 5) [2019] FCA 1905

Tester v Trueman [2020] NSWSC 756

Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440

West v Rane (No 2) [2020] FCA 616

Category:

Principal judgment

Parties:

Serena Patricia Brejcha (Plaintiff)
Mark Krieger (First Defendant)
Eric Jeffrey Tarr (Second Defendant)

Representation:

Counsel:
Ms J Hillier (Plaintiff)
Mr S Jackson (Defendants)

Solicitors:
AJB Stevens Lawyers (Plaintiff)
Moray & Agnew (Defendants)

File Number(s):

2018/326219

Judgment

1. The plaintiff, Serena Brejcha, filed a notice of motion on 24 June 2020 seeking 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.

2. The defendants consent to the proposed transfer, the only issue being the costs in the application.

3. The plaintiff commenced medical negligence proceedings by statement of claim filed on 24 October 2018, against the defendants, who are medical practitioners specialising in obstetrics and gynaecology, arising out of operative treatments provided by each defendant for her gynaecological symptoms in 2005 and 2007 respectively. The first defendant performed a “transvaginal sling procedure”. The second defendant treated the plaintiff by way of a surgery with a “Gynecare Prollift” or “Gynecare TVT System” material. The plaintiff pleaded that both defendants performed the surgeries without discussing with the plaintiff potential complications with each of the procedures which they knew, or ought to have known, from the literature. The plaintiff pleaded that consequent to a breach by one or both of the defendants of their duty of care owed to her, she suffered injury, loss and damage.

4. In support of her application, the plaintiff relied upon an affidavit of her solicitor, Nicolette Tyras, sworn 24 June 2020. Ms Tyras deposed that the plaintiff is a group member of the Gill & Ors v Ethicon SarI & Ors NSD 1590/2012 (“Ethicon class action”), in the Federal Court, and stated that similar damages are claimed in this proceeding on behalf of the plaintiff as in the Ethicon class action. Ms Tyras relied upon observations made by Lee J in West v Rane (No 2) [2020] FCA 616, as follows:

“36   In these circumstances, and as a matter of common sense, it is in the interests of justice that the entire justiciable controversy between the claimants and all those said to be responsible for the wrongs that they allege they have suffered (and the attribution of any responsibility between those alleged concurrent wrongdoers) be determined concurrently; to do otherwise would not only run the risk of potential inconsistency in fact finding, but would be inefficient (and accordingly inimical to facilitating the overarching purpose) …

…

41   If a cross-vesting application is made in relation to any State Proceeding 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.”

5. Section 5(1) of the Act provides 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:

…

(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,

…

the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.”

6. In Tester v Trueman [2020] NSWSC 756, Lonergan J considered a similar application to this, and observed at [14], with reference to Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 (“Valceski”):

“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].

7. I am satisfied that it is in the interests of justice that these proceedings be transferred to the Federal Court.

Costs

8. On the issue of costs on this application, the defendants submitted in their written submissions as follows:

“8   The plaintiff has provided no explanation as to why proceedings were issued in the Supreme Court in the first place knowing that the plaintiff was a group member in the Ethicon class action in the Federal Court and given there were a number of similar vaginal mesh claims against medical practitioners being case managed in the Federal Court. It was not until March/April 2020, that it was disclosed that the plaintiff was a group member of the Ethicon class action and that it was proposed that the proceedings be transferred to the Federal Court.

9   In the circumstances, the appropriate order is that the plaintiff should bear the costs of the motion and pay the defendant’s costs.”

9. At the hearing of the application, the plaintiff responded that the proceedings that were commenced by the statement of claim were in the nature of an allegation of medical negligence, and that it was only after the judgment of Katzmann J in Gill v Ethicon Sarl (No 5) [2019] FCA 1905 was handed down, and then the judgment of Lee J in West v Rane (No 2), that it became apparent that the matter should be transferred to the Federal Court, to enable the plaintiff to pursue her claim as to the product liability element.

10. I accept the explanation provided by the plaintiff and will order that costs be in the cause.

Orders:

11. I make the following 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 costs of this notice of motion are to be costs in the cause.

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Decision last updated: 28 July 2020