Holmes v Olsson

[2004] VSC 250

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7686 of 2002

ISAAK HOLMES	Plaintiff
v
A. OLSSON & ANOR	Defendants

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JUDGE:	WARREN, C.J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2004
DATE OF JUDGMENT:	16 June 2004
CASE MAY BE CITED AS:	Holmes v Olsson and anor [No 2]
MEDIUM NEUTRAL CITATION:	[2004] VSC 250

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CROSS-VESTING – Alleged medical negligence – Cause of Action arising in South Australia – Parties resident in that jurisdiction – Witnesses located in Victoria, South Australia and elsewhere – Plaintiff’s choice of Victorian legal representatives with suitable expertise – Writ issued in Supreme Court of Victoria – Jurisdiction of Courts (Cross-Vesting) Act 1987 – Appropriateness of Court to re-visit the decision of Harper, J. to review and overturn that decision – Balance of convenience to parties and witnesses – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Forrest Q.C. with Mr F.D. Saccardo	Maurice Blackburn Cashman
For the First Defendant	Mr J. Petts	Tress Cox & Maddox
For the Applicant	Mr C. Kourakis Q.C.	Solicitor General for the State of South Australia

HER HONOUR:

1. In this matter an application was made by the Attorney General for the State of South Australia for the cross-vesting of the proceeding.  It is essentially a second application, one having been previously considered in this court by Harper J on 25 June 2003.[1]

   [1](2003) VSC 237

1. On that occasion His Honour dealt with much of the affidavit material that was before me although it has been supplemented since that hearing.  I do not propose, for present purposes, to revisit in these reasons the affidavit material as it largely sets out the facts of the matter, much of it on a non-contentious basis.

1. In summary, the argument put by the Solicitor General on behalf of the Attorney General of South Australia was that various considerations underscored the general proposition cited by Spigelman CJ in James Hardie & Co Pty Ltd v Barry[2] in these types of matters to the effect that:  “Where the place of the retort and the residence of the parties coincide this will generally be determinative of the issue of, ‘Appropriate court’, although other facts may need to be assessed in the process of determining where the interests of justice lie.”

   [2](2000) 50 NSW Law Reports 357 at 361.

1. In submissions on behalf of the plaintiff Mr Forrest, who appeared with Mr Zaccardo, argued that the matter was essentially determined on the previous occasion by Harper J and that it did not lie with the Attorney General to bring the application as had occurred.  Essentially reliance was placed upon the four principles set out in Christie v. Baker.[3] In that case the Court of Appeal set out the various principles and I have considered those matters. On the basis of those matters it seems to me it is inappropriate for this court to re‑visit the decision of Harper J and to effectively review and overturn that decision.  It seems to me on a consideration of the material that there are no additional issues over and above those considered by Harper J and that to re-ventilate or reconsider the application would constitute no more than a re-litigation of the issues before His Honour.

   [3](1996) 2 VR 382.

1. That said, insofar as it is necessary, I give consideration to the merits of the application.  It seems to me that there are a number of matters to be considered for the purposes of considering an application under the Jurisdiction of Courts (Cross‑Vesting) Act 1987. The applicant, in this case the Attorney General of South Australia, bears the onus of persuading the court that it is in the interests of justice that the transfer of the proceeding take place. The plaintiff's choice of forum must, of course, be accorded due weight, or weight in accordance with the circumstances of the case. Other factors considered by the court include the timing of the application, the application of substantive law, forensic advantage or detriment conferred by procedural law, substantive connections with the forum and the balance of convenience to parties and witnesses and convenience to the court system. Having considered all these matters I am satisfied that on the merits the applicant fails.

1. Insofar as it is necessary, I will specifically consider the balance of convenience to parties and witnesses.  First of all I turn to expert witnesses.  Account needs to be taken that the number of witnesses in this proceeding will necessarily be expert witnesses.  In my view the issue of balance of convenience with respect to expert witnesses should be accorded due weight.  In practical circumstances and in this day and age of modern litigation expert evidence may be given by video link by any witness who finds it inconvenient to travel in Melbourne.  In practice, it is my view, that the conduct of the trial in Melbourne would have little consequence on the availability or convenience of expert witnesses for the reasons set out in the affidavit of Virginia Martindale sworn 25 June 2003. There is the aspect of balance of convenience to the parties themselves.  In deciding the application I consider I should take into account the issue as to whether, in reality, the applicant's assertion that substantial evidence will be called on the issue of the medical management of the circumstances of this case is likely to be the case.

1. Having considered the matters set out in the medical report of Dr Peter Wayne dated 5 March 2003 and the various other matters that were described by Mr Forrest in the course of submissions, in my view it cannot be said that substantial issues will arise that will be the subject of expert evidence that cannot be dealt with in this State.  I am mindful that in considering the issues of the convenience of the parties, account should be taken of the fact that the Supreme Court of this State has video link facilities which would enable any witness who is a resident of South Australia to give evidence by that medium. Cases are regularly heard in Melbourne and on circuit with relevant evidence taken by video link.  I observe such is the modern course, face and conduct of litigation in this State.

1. The next matter I turn to is the availability of the plaintiff to attend medical examinations in Victoria if required.  The plaintiff, I observe, attends Victoria for the purposes of undergoing treatment therapy twice yearly.  It seems to me on the circumstances put before me that the plaintiff will be able to attend medical examinations. There will be similar assessments by Victorian experts in Victoria and it does not seem to me that there will be any disadvantage or difficulty so far as the defendants are concerned, in particular the State of South Australia.

1. The remaining matter I consider is the connection with the forum.  Mr Forrest, on behalf of the plaintiff, conceded that the plaintiff resides in South Australia and that the course of action arose in that State.  He submitted, however, that the issue of connection with the forum should not be given undue weight in the circumstances of the present case.  He urged that the overwhelming consideration is the interests of justice.  I accept that submission. The plaintiff has solicitors and counsel who have acted thus far. The proceeding has a momentum such that it would be disproportionately unfair to transfer the proceeding in the contexts of the overall circumstances of all the parties.

1. Finally, in the general exercise of the discretion which I have under the cross-vesting legislation, I consider that the court should refuse the transfer of the proceeding to South Australia initially having regard to the previous decision of Harper, J.  However, with respect to the matters and merits and balance of convenience, I have addressed those matters in the event.  Accordingly I am of the view that the application should be dismissed.