Jeske v Rowe & Anor

[2024] NSWSC 242

Supreme Court

New South Wales

Medium Neutral Citation:

Jeske v Rowe & Anor [2024] NSWSC 242

Hearing dates:

12 March 2024

Date of orders:

12 March 2024

Decision date:

12 March 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1) The proceedings are transferred to the District Court of New South Wales at Sydney pursuant to s 146 of the Civil Procedure Act 2005.

(2) Costs of the motion are costs in the cause.

Catchwords:

PROCEDURE – transfer of proceedings – transfer of medical negligence proceedings from Supreme Court to District Court – orders made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 146

Uniform Civil Procedure Rules 2005 (NSW), r 42.34

Category:

Procedural rulings

Parties:

Jeanette Jeske (Plaintiff)
Kieran Rowe (First Defendant)
Ramsay Health Care Australia Pty Ltd trading as Greenslopes Private Hospital (Second Defendant)

Representation:

Counsel:
A Campbell (Plaintiff)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)
Minter Ellison (Second Defendant)

File Number(s):

2021/351230

Publication restriction:

Nil

JUDGMENT – DUTY LIST – EX TEMPORE REVISED

1. In this matter the plaintiff filed a Notice of Motion on 6 February 2024, seeking an order that medical negligence proceedings 2021/351230 be transferred to the District Court of New South Wales at Sydney pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW) (the CPA). Section 146(4)(b) of the CPA is the relevant subsection and provides:-

146 Transfer of proceedings to a lower court

…

(4) Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied –

…

(b) in any other case –

(i) that the amount to be awarded to the plaintiff if successful is likely to exceed the jurisdictional limit of the District Court, or

(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.

2. It is common ground that the amount likely to be awarded to the plaintiff, if successful, will not exceed the jurisdictional limit of the District Court. The question, therefore, is whether or not there is sufficient reason for hearing the proceedings in the Supreme Court. The plaintiff relies on the affidavit of Susan Newman affirmed on 5 February 2024. The first defendant relies on an affidavit of Donald Alan Ross Munro sworn on 29 February 2024. The first defendant opposes the plaintiff's motion. The second defendant neither consents nor opposes the motion.

3. Mr Munro in his helpful written submissions identifies the reason for keeping the proceedings in the Supreme Court as being the ability for the matter to be case managed in the Professional Negligence List, in circumstances where it is agreed that the issues to be decided ultimately by the Court will be difficult, in particular breach of duty and causation.

4. The first defendant has agreed not to seek an order under r 42.34 of the Uniform Civil Procedure Rules 2005 (UCPR) in the event that the plaintiff is awarded damages under $500,000, which means that the plaintiff will not be prejudiced as to costs if the matter remains in the Supreme Court. However the second defendant has not agreed to not seek an order under r 42.34 of the UCPR in the event that the plaintiff is awarded damages less than $500,000 and therefore, at least as against the second defendant, in the event of her success the plaintiff will at present be so disadvantaged.

5. Leaving to one side the fact that it is likely that a hearing date will be obtained either in the District Court or the Supreme Court at about the same time, in my opinion, that the second defendant has not agreed to not seek an order under r 42.34 is reason enough to find that there is no sufficient reason for hearing the proceedings in the Supreme Court, and that the proper venue in those circumstances is the District Court.

6. I therefore transfer the proceedings to the District Court of New South Wales at Sydney pursuant to s 146 of the Civil Procedure Act 2005. Costs of the motion are to be costs in the cause.

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Decision last updated: 13 March 2024