Gallard v Henderson

[2019] NSWSC 12

Supreme Court

New South Wales

Medium Neutral Citation:	Gallard v Henderson [2019] NSWSC 12
Hearing dates:	In Chambers – on the papers
Date of orders:	24 January 2019
Decision date:	24 January 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Under s 5(2) Jurisdiction of Courts (Cross-vesting) Act 1987, these proceedings are transferred for determination by the Supreme Court of Queensland; (2) Each party is to bear his or her own costs of the motion.
Catchwords:	CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – relevant factors – interests of justice – consent judgment filed
Legislation Cited:	Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Noeleen Gallard (Plaintiff) Peter Henderson (First Defendant) Judith Goh (Second Defendant)
Representation:	Counsel:     Solicitors: AJB Stevens Lawyers (Plaintiff) Moray & Agnew (First and Second Defendant)
File Number(s):	2018/208894

Judgment

1. By statement of claim filed on 6 July 2018, the plaintiff commenced proceedings in the Common Law Division’s Professional Negligence List claiming damages for medical negligence against three medical practitioners in respect of the consequences of advice they provided in the course of treating her and the outcome of four surgeries she undertook in reliance upon that advice. The course of events relied upon to give rise to the various causes of action is said to have commenced in or about 1994 and concluded on 6 July 2015 when she was discharged from hospital following the fourth surgery. A fifth operation to correct what is said to be the consequence of earlier negligence was carried out on 24 January 2018.

2. By notice of motion filed in court on 24 August 2018, the first and second defendants seek orders under s 5 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) transferring these proceedings to the Supreme Court of Queensland. That motion is next listed for a contested hearing before me on 1 February 2019.

3. On 8 January 2019, the parties filed a consent judgment providing for an order that the proceedings be transferred as sought in the Notice of Motion. Those orders have been referred to me by the Prothonotary for consideration in chambers.

4. Because I was concerned about the appropriateness of making orders solely by consent, I requested that the Prothonotary contact the legal representatives of the parties to have the matter mentioned before me at some convenient time. However, doubtless due to the current vacation period, I am informed that the parties have not indicated that they are available to appear in accordance with my request.

5. The reason for my concern is that s 5(2) of the Act requires the Court to make its own assessment of whether it is more appropriate that the proceedings be determined by another Supreme Court, having regard, relevantly for present purposes, to the interests of justice. If such a view is formed the Court is required by law to transfer the proceedings to the other Supreme Court. I am not of the view that transfer occurs “automatically” upon the say-so of the parties. Having said that, naturally in the context of civil litigation the consent of the parties may be a critical factor leading to the exercise of the Court’s discretionary power, even if not always decisive.

6. As it transpires having considered the matter in chambers and having regard to the consent of the parties, it appears to me that the Supreme Court of Queensland is the more appropriate forum for the determination of these proceedings. In making this decision I have had regard to the interests of justice, including the attitude of the parties and their consent. The other facts which have influenced me are that the only obvious connection with this State is the place of practice of the plaintiff’s legal advisors. On the other hand, the factors connecting the proceedings with the State of Queensland include: it is the place of residence of the plaintiff; each of the defendants practised as medical practitioners in that State at the time they treated the plaintiff; all of the surgery material to the proceedings was undertaken in hospitals in Queensland; all legal questions of liability, and governing the assessment of damages to which the plaintiff may be entitled, are informed by Queensland Statute Law; in short, the law of Queensland applies except perhaps to which federal law informs the cause of action pleaded in contract (if at all); and it is inevitable that a large number of witnesses who can give material evidence of the events spanning that period of 14 years I have referred to already also reside in Queensland.

7. In the circumstances, I make the following orders:

By and with the consent of the parties:

1. Under s 5(2) Jurisdiction of Courts (Cross-vesting) Act 1987, these proceedings are transferred for determination by the Supreme Court of Queensland;

2. Each party is to bear his or her own costs of the motion.

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Decision last updated: 24 January 2019