Holmes v Olsson
[2003] VSC 237
•25 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 7636 of 2002
| ISAAK HOLMES (BY HIS LITIGATON GUARDIAN SHARON HOLMES) | Plaintiff |
| v | |
| A. OLSSON | Firstnamed Defendant |
| WOMEN'S AND CHILDREN'S HOSPITAL | Secondnamed Defendant |
---
JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 JUNE 2003 | |
DATE OF JUDGMENT: | 25 JUNE 2003 | |
CASE MAY BE CITED AS: | HOLMES v OLSSON & ANOR | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 237 | |
---
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 – Relevance of fee arrangements – Special circumstances – Right of plaintiff to choose the forum – Jurisdiction of Courts (Cross-Vesting) Act 1987, s.5(2)(iii).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr F. Saccardo | Maurice Blackburn Cashman |
| For the Firstnamed Defendant | Mr J. Petts | Tress Cocks & Maddox |
| For the Secondnamed Defendant | Mr J. Noonan | Phillips Fox |
HIS HONOUR:
The writ by which this proceeding was instituted was issued on 10 October 2002. By his statement of claim the plaintiff claims that he suffered an hypoxic brain injury at or about the time of his birth. This resulted in cerebral palsy. The first defendant, it is alleged, managed his mother's pregnancy and the birth itself. The plaintiff further alleges that on 12 February his mother was admitted to the birthing centre of the second defendant in the early stages of her labour, and that by reason of that admission, the second defendant undertook the management of that labour which resulted in the birth of the plaintiff in consultation with the first defendant.
The relevant events occurred in Adelaide. The plaintiff and the first defendant are residents of that city. The second defendant is a South Australian institution. But the proceeding has been instituted in this Court. The first defendant, having been served on 7 May 2003, filed a Notice of Conditional Appearance on 3 June last. The second defendant was only served on 16 June, which was last Monday week. It entered a conditional appearance on the following Monday; that is, two days ago. The defendants now apply pursuant to s.5(2)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 to transfer the proceeding to the Supreme Court of South Australia.
The effect of the relevant provisions in the Act is that where it appears to this Court that it is in the interests of justice that the relevant proceeding be determined in the Supreme Court of another State or Territory, this court shall transfer the proceeding to that other Supreme Court.
As I understand the plaintiff's position, it is that his mother, who is his litigation guardian, considered the engagement of Adelaide solicitors, but could not find any with "significant" experience in acting on behalf of plaintiffs in birth injury cases. She was then referred to her present solicitors, Maurice Blackburn Cashman, and particularly to one of its partners, Kathryn Margaret Booth. Ms Booth is a Law Institute of Victoria accredited personal injury specialist. In an affidavit sworn on 23 June 2003 in opposition to the present application, Ms Booth says that her firm is prepared to act on a "no win/no charge" basis although the plaintiff (by the arrangement to which the plaintiff and his solicitors have since come) will be required to make a contribution towards disbursements. Ms Booth added at paragraph 17 of her affidavit, "This type of litigation is extremely complex and requires considerable expertise, as well as financial resourcing. I practise exclusively in the area of medical negligence of behalf of plaintiffs, with the majority of my practice in birth trauma litigation".
The plaintiff's litigation guardian has also sworn an affidavit in opposition to the present application. It is dated 25 June 2003. In it, Mrs Holmes, the plaintiff's mother, swears at paragraph 5 as follows: "It is of paramount importance to me that this case is entrusted to a lawyer specialising in the area, both from an emotional and financial point of view. I have conferred with Catherine Booth and Frank Saccardo", whom I interpolate to say has been engaged as counsel for the plaintiff, "and feel very comfortable with them handling the case. I feel that they have the expertise required to run a case of this significance and complexity. They will also act on a no win/no charge basis. I have made enquiries through various connections in Adelaide, and have not been able to locate a lawyer who has significant experience in acting on behalf of plaintiffs in birth injury cases."
Having been contacted by Mrs Holmes in late January 2001 and having first conferred with her in Melbourne on 25 July 2001, Ms Booth assumed the conduct of the case. She arranged for the plaintiff to consult Victorian specialists, and has also engaged an expert based in Sydney. She adds, by paragraphs 11 and 12 of her affidavit, "I commissioned a report from Michelle French, a very experienced occupational therapist of North Fitzroy Victoria, who travelled to Adelaide and met with the plaintiff on 17 March 2003 and who will provide us with a written report in the near future. It is my intention to engage further experts in Victoria who regularly provide expert material for our office. Arising from the occupational therapist's report will be the need for expert physiotherapy and speech therapy reports. It is also intended to engage another expert obstetrician from Victoria".
The defendants in response make what seems to me a good point. Having engaged Victorian solicitors to conduct what in essence is a South Australian case, the plaintiff cannot then, before the writ is served, preclude any application for transfer by conduct designed to support the original decision to bring proceedings here.
I therefore place little weight on the proposition, which I accept, that the majority of the plaintiff's witnesses, although not all, reside in Victoria. I nevertheless also accept that these days, in litigation of this kind, relevant expertise is likely to be sought outside the jurisdiction in which the impugned conduct took place. Not only is such expertise inevitably scattered, but it is somewhat easier for a plaintiff to retain experts from locations other than that in which the defendants are based.
I also take into consideration the fact that by arrangements presently in place in this Court, as in no doubt every other Supreme Court in Australia, it is relatively easy to arrange for experts and indeed other witnesses to give their evidence via video link. There are, it is true, some disadvantages to the trier of fact in assessing evidence given by this means, but it is clear from the relevant legislation that Parliament considers that modern technology ought not inhibit a court from acceding to a request for a witness to give evidence by video link.
Accordingly, given that arrangements can be made for witnesses to give evidence in this way, it seems to me that the fact that witnesses reside in one jurisdiction rather than another, is not a matter of particular significance in determining the outcome of an application such as this.
I have had put before me in helpful submissions the relevant considerations to be taken into account when determining an application of this kind. I have also had reference to the authorities to which my attention has been directed.
This case is, I think, unusual, in that (as is accepted by both sides), not only does the cause of action arise in a jurisdiction other than the jurisdiction in which the proceedings have been instituted, but the parties have their principal place, if not their only place, of residence or location, in another jurisdiction. As against that, the plaintiff relies upon the evidence to which I have already referred, given in his mother's affidavit. I accept that for both mother and child, litigation of this kind is of particular importance emotionally as well as financially, and that there are special reasons why, in these circumstances, the plaintiff and those charged with his care, should be comfortable with the legal advice at their disposal.
Given those circumstances, it seems to me to be reasonable that the plaintiff went outside the jurisdiction in order to find legal practitioners with the characteristics which the plaintiff sought. I mean in making that remark, no disrespect at all to practitioners elsewhere, particularly in Adelaide. The fact is, however, that the plaintiff has obtained through his present solicitors, solicitors with appropriate expertise who are prepared to undertake their engagement on terms which the plaintiff finds financially attractive. Those are matters which, it seems to me, are of considerable weight in determining the outcome of this application.
Also of weight are the matters put before me in the able submissions which I received on behalf of the defendants. They rely not only upon the proposition that their witnesses will in large part be based in South Australia and that their clients are similarly based, but also on the undoubted fact that if the proceedings continue in Victoria, they will be put at additional expense and inconvenience; additional, that is, to the expense and inconvenience which they will necessarily have to face wherever the proceedings are heard. These too are matters of weight. Together, the matters put before me on both sides of the argument leave the decision delicately poised. In short I have sympathy with the positions taken by each of the parties to this application, and it has not been one that I have found easy to determine.
In those circumstances I do place some weight on the proposition that the plaintiff is ordinarily entitled to choose his or her forum and that, to the extent that an onus applies in applications of this kind, it is an onus which rests with those seeking to persuade the Court that it is in the interests of justice that there be a transfer.
Placing all these matters into the scales, I have decided that the matter should not be transferred from this Court. It seems to me that in the end I ought, in this case, to allow the matter to remain in the forum chosen by the plaintiff. I would emphasise that this application ought not to be seen as a precedent for the proposition that plaintiffs can have a real expectation of succeeding in keeping litigation in a particular jurisdiction simply because they happen to like the solicitors in that jurisdiction, rather than those in a jurisdiction where otherwise the proceeding should be brought. I have been persuaded that in this case there are special reasons why the plaintiff has engaged his present solicitors, and why their engagement should not be upset by a decision to transfer this litigation. I should add, however, that I do bear in mind the fact that it would be possible for the plaintiff's solicitors to remain as such and engage agents in South Australia. It has been put to me, and I accept, that the expense in that process would be considerable, and that it would deprive the plaintiff of the benefits which flow from having his solicitors in the jurisdiction of the court in which the proceeding is to be brought. That advantage may or may not be real; but I am inclined to think that it is of some significance. I have, indeed, little doubt that it neutralises the disadvantage to the defendants in having to engage agents to act for them in Victoria. I mention these matters really in order to ensure that the parties appreciate that I have not overlooked them.
For the reasons that I have previously said, however, it seems to me that I ought not to order the transfer of this proceeding. Accordingly, it will remain with the Supreme Court of Victoria.
---
0
0
0