Evangeline Vandermark v Australian Capital Territory
[2017] NSWSC 233
•10 March 2017
Supreme Court
New South Wales
Medium Neutral Citation: Evangeline Vandermark v Australian Capital Territory [2017] NSWSC 233 Hearing dates: 10 March 2017 Date of orders: 10 March 2017 Decision date: 10 March 2017 Jurisdiction: Common Law Before: Campbell J Decision: Orders made in accordance with the form of consent order, amending order 2 to delete the number 2016/245048 and substitute 2017/296651.
Catchwords: CIVIL PROCEDURE – cross-vesting – application to transfer proceedings from the Supreme Court of New South Wales to the Supreme Court of the Australian Capital Territory – medical negligence – whether it is in the interests of justice that the proceedings be determined by the Supreme Court of another State – held that the Supreme Court of the Australian Capital Territory the more appropriate venue Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)Category: Procedural and other rulings Parties: Evangeline Vandermark by her tutor Matthew Vandermark (Plaintiff)
Australian Capital Territory (Defendant)Representation: Counsel:
Solicitors: Benjamin Lawyers (Plaintiff)
(No appearance on consent application)
Mr Black SC (Defendant)
ACT Government Solicitor (Defendant)
File Number(s): 2015/00308959
ex tempore judgment - revised
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This is an application under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) to transfer two sets of proceedings pending in this court to the Supreme Court of the Australian Capital Territory. The application is made with the consent of the plaintiffs’ legal advisers.
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The cause of action sued upon is a medical negligence claim arising on and/or shortly after 23 October 1995 when the primary plaintiff was then an infant aged about one year. She was admitted to hospital with symptoms which were subsequently diagnosed as referrable to encephalitis related to the herpes simplex virus type I.
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The case is that the diagnosis of her condition, and therefore treatment of it, was unreasonably delayed by what is now referred to as the Canberra Hospital and the medical consultants who examined and treated the primary plaintiff. As a result of the encephalitis, and on the plaintiffs’ case, the negligence of the defendant, she suffered a most catastrophic brain injury. She is now completely disabled.
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She and her family have, at all material times, been resident in New South Wales and happened to be visiting Canberra in October 1995. Her parents have now also brought claims for nervous shock damages. Those claims commenced in the District Court and were transferred to this court by order made on 9 February 2017.
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Mr Black SC, who appears for the applicant-defendant, has provided me with helpful written submissions. He informs me that the plaintiff is represented by Mr Higgs SC, who, like Mr Black, is a well-known expert practitioner in this field.
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The ground set out in s 5 of the Act relied upon by the applicant is the ground which appears in s 5(2)(b)(iii) that it is “in the interests of justice that” the proceedings be determined by the Supreme Court of another State. If I am so satisfied, I am required by law to transfer the proceedings to the Supreme Court of the Australian Capital Territory.
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Matters relevant to the exercise of that evaluative judgment, identified by Mr Black, include: the obvious consideration that the lex loci delicti, informing questions of both liability and damages, is a law of the Australian Capital Territory; the defendant is an administrative manifestation of the government of the Australian Capital Territory; the medical attendants who treated the plaintiff at hospital are still alive and still resident in or near the Australian Capital Territory; both are still in medical practice in that vicinity; and, I think it of less significance that, the solicitor and junior counsel for the defendant both practice in the Australian Capital Territory.
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Initially, I was concerned that, given the plaintiff’s catastrophic injury and disability, there might be very significant inconvenience from her point of view in the case being transferred to the Territory. Moreover, because of her residence here, it is very likely that any of the experts, who have treated her and who have been qualified for the case, would be resident in or about the city of Sydney. However, it has been pointed out that given the very severe nature of the plaintiff’s disabilities, she would not be giving evidence in any event and I infer that it seems very unlikely that she would be able to be brought to court whether the case proceeds in Sydney or in Canberra.
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Given that the application is brought by consent and having regard to the factors I have referred to, I am satisfied that on balance the Supreme Court of the Australian Capital Territory is a more appropriate venue for the determination of this case given that the lex loci delicti and lex fori will, as it were, coalesce in that court.
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I am reinforced in this determination by two additional factors. First, it has been made quite clear by Mr Black, as it had been made clear earlier to the court by his instructing solicitor, that the availability of any statutory bar under Territory law will be waived so far as the primary plaintiff is concerned. It is proposed to file an amended defence to that effect in the future; and, secondly, that the Australian Capital Territory government solicitor has instructions from the Territory government to waive any non-compliance with the pre-litigation procedural requirements of the Civil Law (Wrongs) Act 2002 (ACT).
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For those reasons, I will make the order sought in both proceedings titled Evangeline Vandermark v The Australian Capital Territory 2015/00308959-1, and Matthew Vandermark & Fiona Vandermark v The Australian Capital Territory 2017/00029651-1.
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I make orders in accordance with the form of consent order signed by the solicitors for the parties and by me. These orders may be entered forthwith.
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I have amended order 2 in the consent orders deleting the number 2016/245048 and substituting the number 2017/296651.
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I direct that the seal of the court be affixed to the form of order.
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Decision last updated: 14 March 2017
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