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

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

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 Brejcha v Krieger

Details

AGLC: Brejcha v Krieger [2020] NSWSC 964
Case: [2020] NSWSC 964
Decision Date: 28 July 2020

CaseChat Overview and Summary

The case of Brejcha v Krieger involved a plaintiff who was a member of a class action in the Federal Court. The dispute centred around whether the proceedings should remain in the Federal Court or be transferred to the Federal Circuit Court. The plaintiff sought to argue that the proceedings should remain in the Federal Court, while the defendant, the Australian Taxation Office, contended that the matter should be transferred to the Federal Circuit Court due to its procedural and jurisdictional complexities.

The legal issues the court was required to decide revolved around the applicability of cross-vesting provisions and whether it was more appropriate and in the interests of justice for the proceedings to be determined by the Federal Court. The court had to consider whether the matter's complexity necessitated a transfer to the Federal Circuit Court and if the Federal Court retained the necessary jurisdiction to hear the case.

The court reasoned that while the Federal Court had jurisdiction to hear the case, the matter's procedural and jurisdictional complexities warranted its transfer to the Federal Circuit Court. The court found that the interests of justice would be better served by the matter being determined in the Federal Circuit Court. Consequently, the proceedings were transferred to the Federal Circuit Court for determination.

The court made an order transferring the proceedings to the Federal Circuit Court for further determination. The court held that the transfer was appropriate and in the interests of justice, given the complexities of the matter and the procedural advantages of the Federal Circuit Court.

Orders