Henderson bhnf Sullivan v State of Queensland
[2017] NSWSC 1313
•25 September 2017
Supreme Court
New South Wales
Medium Neutral Citation: Henderson bhnf Sullivan v State of Queensland [2017] NSWSC 1313 Hearing dates: 25 September 2017 Decision date: 25 September 2017 Jurisdiction: Common Law Before: Adamson J Decision: 1. Dismiss the notice of motion filed on 19 June 2017.
2. Order that the costs of the notice of motion be costs in the cause.Catchwords: CROSS-VESTING – defendant’s application for transfer to Supreme Court of Queensland – interests of justice – proper law of tort is Queensland law – potential witnesses in Queensland and northern NSW – plaintiff’s solicitors in Sydney and expert witnesses in Sydney – possibility of Court sitting in Lismore to take evidence – order for transfer refused Legislation Cited: Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), s 5 Category: Procedural and other rulings Parties: Jane Henderson bhnf Ronald Sullivan (Plaintiff)
State of Queensland (Defendant)Representation: Counsel:
Solicitors:
K Burke (Defendant/Applicant)
A Campbell (Plaintiff/Respondent)
Gerard Francis Malouf (Plaintiff)
Minter Ellison (Defendant)
File Number(s): 2017/88874
Judgment: EX TEMPORE
Introduction
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By notice of motion filed on 19 June 2017, the State of Queensland (the applicant/defendant) in seeks an order that this Court transfer these proceedings pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) to the Supreme Court of Queensland. The plaintiff/respondent resists the notice of motion.
The parties’ submissions
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The applicant, for whom Ms Burke appears, contends that the interests of justice would be best served by a transfer and that the most appropriate forum to hear and determine the proceedings is the Supreme Court of Queensland. She refers to a number of matters to bear out this submission. The location of the place of the alleged wrong is Queensland, which means that the applicable substantive law is the law of Queensland. Between October and November 2015, the plaintiff was an in-patient at the Gold Coast University Hospital where she was diagnosed with metastatic small cell lung cancer. As a result of the diagnosis she was subjected to chemotherapy and prescribed anti-psychotic medication.
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In January 2016 she was admitted to the Tweed Base Hospital. In about March 2016 she was diagnosed with metastatic carcinoid tumour. It is alleged on her behalf that the failure to consider the differential diagnosis of metastatic carcinoid tumour when she was first diagnosed in late 2015, deprived the plaintiff of the opportunity to have the tumour removed surgically. It is said that the error also resulted in her being subjected to chemotherapy, which is alleged to have been inappropriate in the circumstances.
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The plaintiff alleges that the delay in diagnosis between October or November 2015 and March 2016 has caused her harm and means that the outcome for her is worse than it would have been. It is plain from the narrative set out above that the alleged negligence occurred in Queensland and that the subsequent tumour was in northern New South Wales in a place which is closer to Brisbane than it is to Sydney. The relevant events all appear to have taken place in Queensland and northern New South Wales.
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The applicant also relies on the location of potential witnesses. Ms Burke submits that the applicant's lay witnesses and probably its expert witnesses will be located in Queensland. Ms Burke points out that the respondent lives in Crystal Creek, New South Wales, which is located in the Tweed Shire, which is close to the border of Queensland. The respondent's treating oncologist, Professor Coward, is currently treating the respondent in South Brisbane.
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The relative distances between the respondent's residence and the Supreme Court of Queensland in Brisbane and the Supreme Court of New South Wales at Sydney are relied upon. There is also reference to the consideration that such matters as these are managed by a judge in the Supreme Court of Queensland.
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Mr Campbell, who appears on behalf of the plaintiff/respondent, submits that the plaintiff was entitled to commence the proceedings in the Supreme Court of New South Wales and have the proceedings conducted in Sydney. He has tendered, on her behalf, three expert reports, which are relevant to liability. Of these at least two of the experts appear to be based in Sydney. I infer that it would be more convenient to them if the hearing took place in Sydney.
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Ms Burke has confirmed that presently the further and better particulars which were sought by the defendant on 26 April 2017 have not been responded to. It appears that the defendant has not yet selected the expert or experts who will be qualified on its behalf in these proceedings. She informs me that that selection will be made, as I would expect it would be, on the basis of the result of this transfer application. Mr Campbell tells me that an answer to the particulars sought by the defendant on 26 April 2017 can be provided within a week.
Consideration
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It is common ground that the state of readiness of the matter (where particulars have not been provided and no defence has been served) does not enable any conclusion to be drawn as to whether a hearing date would be more readily forthcoming in New South Wales or in Queensland. There is, in any event, no suggestion that either the Supreme Court of Queensland or this Court would be better or have any other advantage other than the case management which is offered for these matters in the Supreme Court of Queensland. I have confirmed with the parties that judicial case management will be made available to this matter, in part having regard to the assumed diminution in the plaintiff's life expectancy, having regard to the diagnosis.
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Whilst there is much to be said in favour of the transfer of these proceedings to the Supreme Court of Queensland, there are other matters which tend against that. The plaintiff's solicitor operates from an office in Parramatta and has already retained experts who presumably will give evidence on behalf of the plaintiff who are located in Sydney. Wherever the proceedings are held will require the plaintiff to travel.
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I have spoken to the Listing Manager of this Court and ascertained that in certain circumstances this Court can sit in Lismore and it may be that arrangements can be made for these proceedings or at least part of them to be heard in Lismore or another Court in northern New South Wales to accommodate the convenience of the parties and to minimise the cost of the proceedings to the parties.
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Having considered all of the matters raised, I am not satisfied that it is in the interests of justice to transfer these proceedings to the Supreme Court of Queensland. Having said that, and bearing in mind that this decision itself will have ramifications for the selection of experts, I do not mean to foreclose any further application if either of the parties see fit to make it in the future.
Orders
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For the reasons set out above, I make the following orders:
Dismiss the notice of motion filed on 19 June 2017.
Order the costs of the motion to be costs in the cause.
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Decision last updated: 27 September 2017
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