Koroma v Australian Capital Territory

[2020] NSWSC 1450

Supreme Court

New South Wales

Medium Neutral Citation:

Koroma v Australian Capital Territory [2020] NSWSC 1450

Hearing dates:

On the papers

Date of orders:

19 October 2020

Decision date:

19 October 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) These proceedings be transferred to the Supreme Court of the Australian Capital Territory pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

(2)   The order that the Defendant file and serve its Defence by 18 October 2020 be vacated until such time as the matter is transferred to the ACT Supreme Court.

(3)   No order as to costs.

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Transfer to Supreme Court of the Australian Capital Territory

Legislation Cited:

Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), s 5

Category:

Procedural and other rulings

Parties:

Musu Koroma (Plaintiff)
Australian Capital Territory (Defendant)

Representation:

Solicitors:
PK Simpson & Co (Plaintiff)
ACT Government Solicitor (Defendant)

File Number(s):

2020/217324

Judgment

Introduction

1. By statement of claim filed in this Court on 24 July 2020, Musu Koroma (the plaintiff) commenced proceedings in which she claimed damages in negligence against Canberra Health Services (the defendant). The defendant has, apparently, no separate legal personality to that of the Australian Capital Territory (the ACT). Accordingly the defendant is now referred to as the ACT.

2. By notice of motion filed on 25 September 2020, the defendant sought orders that the proceedings be transferred to the Supreme Court of the ACT pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) (the Act). Section 5(2) of the Act relevantly provides:

5   Transfer of proceedings

…

(2)     Where:

(a)     a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and

(b)     it appears to the first court that:

…

(iii)     it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

…”

The nature of the proceedings and the allegations made

3. The plaintiff’s claim relates to treatment she received on 28 July 2017 at the Canberra Hospital in the ACT. She alleges that the total abdominal hysterectomy and bilateral salpingo-oophrectomy (surgery to remove the ovaries and fallopian tubes) which she underwent was performed negligently and that she was not given the appropriate warnings before the surgery was performed. On this basis, it can be concluded that the cause of action in negligence arose in the ACT. The defendant is located in the ACT, as are its solicitors. The cause of action is governed by ACT law.

4. Correspondence between the parties revealed that the plaintiff resides in the ACT and is receiving treatment in the ACT. She is said to suffer from ongoing pain which makes it difficult for her to travel. Neither of the surgeons who performed the operation is presently employed by the defendant and neither resides in the ACT. Dr Tobias Angstmann resides in Victoria and Dr Leon Foster resides in New South Wales.

5. It is common ground that it is in the interests of justice that the proceedings be transferred to the Supreme Court of the ACT pursuant to s 5(2) of the Act. Although this order cannot be made by consent, I am satisfied, on the basis of the evidence of Jessica Steele, whose affidavit was relied on in support of the notice of motion, that the order for transfer ought be made. The Supreme Court of the ACT is a plainly more appropriate forum.

6. For these reasons, I made the orders sought by the parties which are set out in the short minutes of order which I have signed and dated and placed with the papers and which are as follows:

1. These proceedings be transferred to the Supreme Court of the Australian Capital Territory pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

2. The order that the Defendant file and serve its Defence by 18 October 2020 be vacated until such time as the matter is transferred to the ACT Supreme Court.

3. No order as to costs.

**********

Decision last updated: 20 October 2020