Campton v Centennial Newstan Pty Ltd

[2013] NSWSC 1020

Supreme Court

New South Wales

Medium Neutral Citation:

Campton v Centennial Newstan Pty Ltd [2013] NSWSC 1020

Hearing dates:

24/7/13

Decision date:

24 July 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Subject to the discretion of the trial judge, the hearing of this matter is to commence in Newcastle on 28 October 2013 and resume in Sydney for the completion of the evidence and final addresses.

(2) I direct the parties to approach the listing manager forthwith, by which I mean with all due despatch, in order to initiate the process of making suitable arrangements to carry order 1 into effect.

(3) I grant liberty to each party to apply on 3 days prior notice to the Common Law case management registrar and to the other side.

(4) Costs of the application to be costs in the cause.

(5) I will fix the defendant's application for an order requiring the plaintiff to keep the appointment with Dr Coolican for hearing before me at 3pm on Friday, 26 July 2013. I dispense with the need to file a motion but I direct that any affidavit which either party wishes to rely upon be lodged with my chambers before 4pm, Thursday, 25 July 2013.

Catchwords:

PRACTICE & PROCEDURE - application for change of venue of hearing - no question of principle

Category:

Interlocutory applications

Parties:

Ian Barry Campton (plaintiff)
Centennial Newstan Pty Limited (defendant)

Representation:

Counsel:
P O'Rourke (plaintiff)
D Stanton (defendant)
Solicitors:
Whitelaw McDonald (plaintiff)
Sparke Helmore (defendant)

File Number(s):

2012/70316

EX TEMPORE Judgment

1. Campbell J: In this matter, the plaintiff applies for a change of venue from Sydney to Newcastle. The matter involves an industrial accident in a mine and the plaintiff, members of his family, other lay witnesses and his treating doctors all reside in the Newcastle and Lake Macquarie region. The matter has been fixed for hearing commencing on 28 October 2013 which will run for several days.

1. The defendant is content for there to be a change of venue for the purpose of some evidence, provided it has the opportunity of calling its medical experts in Sydney. I am informed by counsel that there is a significant issue as to medical causation in the case. As against the plaintiff's position, the defendant at this stage is unsure whether it will have an expert on liability. That matter remains under consideration due to the late service of the plaintiff's liability expert report.

1. Since the matter was last before me the list judge, Garling J, has made detailed case management directions to bring the case to final preparation in a timely way to ensure it is ready to proceed on 28 October 2013. Those orders include, consistently with the current practice of the Court, the requirement that experts confer to produce a joint report, and give their evidence concurrently.

1. Many of the plaintiff's experts of a medical type, as I have said, are from the Newcastle region. Obviously, there will be significant preparations that will need to be made, whether the matter is heard here or in Newcastle, to accommodate concurrent evidence of experts in separate cities by way of audio-visual link. Newcastle is New South Wales' second city, and doubtless has adequate facilities to accommodate that necessity, regardless of venue.

1. It seems to me to be an important consideration touching upon the administration of justice that where necessary, the Court should be prepared to sit in cities other than Sydney and indeed, anywhere in regional New South Wales.

1. It is part of the long history of this Court, and of other courts in New South Wales, that justice is taken to the people where they live. This Court no longer conducts regular sittings in its civil jurisdiction outside of the City of Sydney, but it is always been prepared to reinvigorate the tradition when it seems appropriate and convenient to do so.

1. In my judgment, the affidavit of Mr McDonald sworn 5th April 2013 demonstrates that it is appropriate and convenient that the case at least commence in Newcastle; that evidence be taken there from the witnesses resident in that region; and that the matter then return to Sydney for further hearing during the period already allocated for its disposition to enable appropriate expert evidence to be taken here. Obviously, precisely how much evidence is taken in Newcastle and how much in Sydney is better left to the direction of the trial judge who is appointed to hear the case in due course, and I would not wish to fetter my colleague's (whoever that might be) ultimate discretion in relation to the conduct of the trial by being prescriptive as to how changing the venue from Newcastle to Sydney is managed.

1. I note that the list judge has made, as I have said, detailed directions for the further management of the matter and an issue arose before me as to whether the expression "expert medical evidence" in his directions extends to the occupational therapists, and also to the treating surgeon, Dr Frisch. To my mind, given the usual practice of the Court, I would interpret his Honour's order in relation to the conference, and concurrent evidence, of medical experts to include the treating specialist in the appropriate specialist category.

1. I think that the parties should proceed on the basis that the occupational therapists are, for the purposes of the orders made by his Honour, medical experts and that his Honour's orders extend to the necessity for them to confer and to give their evidence concurrently. To the extent to which the general practitioner may be required for cross-examination, it is unlikely that there will be other doctors falling into that category and I would envisage that his evidence could be given singly and in Newcastle.

1. My orders are that:

(1)   Subject to the discretion of the trial judge, the hearing of this matter is to commence in Newcastle on 28 October 2013 and resume in Sydney for the completion of the evidence and final addresses.

(2)   I direct the parties to approach the listing manager forthwith, by which I mean with all due despatch, in order to initiate the process of making suitable arrangements to carry order 1 into effect.

(3)   I grant liberty to each party to apply on 3 days prior notice to the Common Law case management registrar and to the other side.

(4)   Costs of the application to be costs in the cause.

(5)   I will fix the defendant's application for an order requiring the plaintiff to keep the appointment with Dr Coolican for hearing before me at 3pm on Friday, 26 July 2013. I dispense with the need to file a motion but I direct that any affidavit which either party wishes to rely upon be lodged with my chambers before 4pm, Thursday, 25 July 2013.

Decision last updated: 01 August 2013