Liddell v Southern Area Health Service

[2010] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

LIDDELL & ANOR v SOUTHERN AREA HEALTH SERVICE

[2010] SASC 11

Reasons for Rulings of The Honourable Justice Bleby

20 January 2010

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - CASES OTHER THAN UNDER CROSS-VESTING LEGISLATION

Application to transfer action from the District Court - whether action appropriate to be heard in Supreme Court - whether good reason to transfer - whether prejudice to the defendant - transfer allowed - plaintiff to pay costs of the application - whether action should be assigned special classification under r 115 - application refused.

District Court Act 1991 (SA) s 24; Supreme Court Civil Rules 2006 (SA) r 115, referred to.
Research in Motion Ltd v Samsung Electronics Australia Ltd (2009) 176 FCR 66, considered.

LIDDELL & ANOR v SOUTHERN AREA HEALTH SERVICE
[2010] SASC 11

Civil

1. BLEBY J. The plaintiffs have commenced an action against the defendant in the District Court for damages for very serious personal injury in the form of permanent brain damage.

2. The first plaintiff alleges negligence on the part of the defendant in her care and treatment at the Flinders Medical Centre.

3. By summons in this action the plaintiffs seek the following orders:

   1That proceedings in the District Court, action No.1095/2004 in which the plaintiffs claim damages with respect to catastrophic personal injury suffered by the first plaintiff be transferred from the District Court of South Australia to the Supreme Court of South Australia.

   2That the Honourable Chief Justice or his delegate:

   (1)assign a special classification to the action in view of the complexities involved;

   (2)assign a judge to supervise the conduct of this action to the point of trial.

   3That the plaintiffs be granted leave to amend their statement of claim in terms of the draft exhibited as TS6 to the affidavit of Ms Tanya Segelov sworn on 1 September 2009.

   4That a direction be made as to whether the Supreme Court Rules 1987 or the Supreme Court Rules 2006 apply to this action, the action thus far having been conducted in accord with the District Court Rules 1987.

   5Such further order or other orders and directions as this honourable Court deems fit.

4. The application first came before a master. The defendant opposed the transfer and one affidavit was filed by the defendant in opposition.

5. The argument put by the plaintiffs was based on the alleged complexity of the action by virtue of the likely quantum of the claim, but also on an intended inference that the plaintiffs would seek to draw based on the absence of what the plaintiffs claim are crucial records of the monitoring of the first plaintiff’s condition while undergoing treatment at the Flinders Medical Centre. Before the Master, the plaintiffs’ counsel argued that at trial the plaintiffs would seek to rely on what is known as the presumption arising from spoliation of documents. There was further argument as to whether that should have been pleaded by the plaintiffs in their statement of claim.

6. The Master expressed the view that under the 1987 Rules which presently govern the District Court action, it probably was necessary to plead the issue. However in the light of the decision of the Federal Court of Australia in Research in Motion Ltd v Samsung Electronics Australia Ltd [2009] FCA 320, (2009) 176 FCR 66, he considered that, at the very least, notice of the allegation should be given to the defendant and that such notice had not been given. He directed that notice be given by the plaintiffs of their case based on spoliation by 15 January 2010.

7. He referred the balance of the application to me, being the delegate of the Chief Justice referred to in para 2 of the plaintiffs’ summons.

8. The plaintiffs’ solicitors have since provided a letter to the defendant’s solicitors which reports to comply with the Master’s direction. I will defer comment on that letter for the time being.

9. In my opinion it was inappropriate for the Master to become involved in an argument on adequacy of pleadings when the action is still an action in the District Court. It was inappropriate to give directions in the nature of clarification of the issues in the case unless and until the action was transferred. It was inappropriate for the Master to give directions with a view apparently to discerning the nature of the alleged complexity of the action. The application to transfer the action stood or fell on the material before the Master.

10. The first question to be addressed was, therefore, whether the action should be transferred from the District Court to this Court under s 24 of the District Court Act 1991 (SA). It is not until that question is resolved that the subsequent questions raised by the plaintiffs’ summons can be addressed in this Court.

11. It does not have to be a special classification action in order to be transferred, although the plaintiffs’ intention to seek such a direction, as opposed to continued management of the action by the District Court, may be relevant to that question. It does not have to be transferred in order for the proposed amendment of the statement of claim to be dealt with adequately. Accordingly it was incumbent upon the Master to deal with that first question before dealing with any other.

12. I therefore turn to address that question. Both courts have jurisdiction to try the action. This is the plaintiffs’ application. The plaintiffs could have commenced the action in this Court if they had chosen to do so. I consider that that is a relevant factor.

13. Against that background, the first question to be addressed in such a case is whether the action is an appropriate one to be heard in this Court. The second question is whether there is some good reason to transfer the action. The third question is whether there is any prejudice to the defendant in so doing. A different approach may be necessary on an application by a defendant who has been brought to the District Court by compulsion, at the option of the plaintiff.

14. The plaintiffs’ claim is for damages. If successful the damages will be very large. It is an appropriate action to be heard in this Court. The plaintiffs, if they wished, could have commenced the action in this Court. It is the plaintiffs who now wish to have the action transferred.

15. It is clear that they wish to have the matter judge managed as a special classification action in this Court. Although that can theoretically happen in the District Court, the set-up of managing such actions in this Court is well established and the procedures for doing so are well known and frequently invoked. I understand that that is not the case necessarily in the District Court. The nature of the action is such that it may be appropriate so to classify the action. It would not be a futile application to do so.

16. The plaintiffs also believe that by transferring the action to this Court they are likely to get an earlier trial. That in itself is not an adequate reason. Transfers will not be made merely to assist plaintiffs in jumping a District Court queue.

17. There is no evidence of irremediable prejudice to the defendant by having the action transferred. It was the plaintiffs’ choice in the first place to sue in the District Court. They could have chosen to sue in this Court but did not. They are not bound by that election for ever. As it is not an inappropriate action to be heard in this Court, and as there is an acceptable reason for the plaintiffs now to wish to have the action heard in this Court and there is no irremediable prejudice to the defendant, I consider that the plaintiffs are entitled to the order that they seek, but only subject to conditions.

18. The condition will be that the plaintiffs pay their own and the defendant’s costs of and incidental to the application to transfer the action in any event. As the plaintiffs could have commenced the action in this Court, there is no reason why the defendant should suffer the burden of the costs of the transfer. I include in the costs that the plaintiffs must bear the filing fee of $1740 paid on commencing this action. The application could have been made without payment of any fee to a judge or master of the District Court.

19. The next question for determination is whether the action should now be assigned by me as a special classification action under rule 115 of the Supreme Court Civil Rules 2006 (SA). It is those Rules which now apply, as this action was commenced in this Court by the plaintiffs on 2 September 2009. That is a decision which is normally made administratively, without argument in open court by counsel. Although the plaintiffs’ damages, if the action is successful, will be high, there is nothing in the papers before me to indicate that for any other reason, the case requires judge management at this stage.

20. The question of whether the plaintiffs can rely on the so-called presumption of spoliation, and whether it is required to be pleaded, and whether the plaintiffs’ letter is adequate for the purpose are not issues which in themselves require judge management. They may not arise until trial. I expressly refrain from commenting on the adequacy of the plaintiffs’ letter delivered in response to the Master’s order.

21. At this stage and until the file is transferred to this Court, I am not prepared to make an order on the material presently before me that the action be assigned a special classification under rule 115. That does not mean to say that if other complexities in the case become evident, that question cannot be revisited. Issues relevant to such a determination may include the expected length of the trial, the number and complexity of the issues in the case, the likely number of documents, the number of areas of evidence the subject of expert evidence and the number of intended expert witnesses, whether senior counsel is or is likely to be briefed, and if referred by a master, the recommendation of the Master.

22. It is a matter which, as I said, is considered administratively by the Chief Justice or by me as his delegate. If the request does not come from a master, it may be addressed by letter to the Chief Justice, who is likely to refer it to the delegate at the time.

23. The question of the amendment of the plaintiffs’ statement of claim and any other interlocutory proceedings will therefore need to be referred back to the Master.

24. The orders that I therefore make are as follows:

    1That pursuant to s 24 of the District Court Act 1991, action No.1095/2004 in the District Court of South Australia be transferred to the Supreme Court of South Australia.

    2That the plaintiffs pay their own costs and the defendant’s costs of and incidental to the application in any event.

    3That the plaintiffs’ application for assignment of a special classification to the action be refused without prejudice to the plaintiffs’ right to renew the application at some future time.

    4That the question of the amendment of the plaintiffs’ statement of claim and any other interlocutory proceedings be referred to Master Lunn for determination.