McCready v Bendigo Health - [2014] VSC 565

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 02303

MARGARET MCCREADY	Plaintiff
v
BENDIGO HEALTH	Defendant

---

JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2014
DATE OF RULING:	7 November 2014 (Reasons 12 November 2014)
CASE MAY BE CITED AS:	McCready v Bendigo Health
MEDIUM NEUTRAL CITATION:	[2014] VSC 565

---

PROCEDURE – Circuit trials – Proper venue – Change of venue - Considerations – Rules 5.08, 47.01 Supreme Court (General Civil Procedure) Rules 2005 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Shorthall	Slater and Gordon
For the Defendant	Ms J Cowan	Minter Ellison

HIS HONOUR:

Introduction

Mrs McCready instituted proceedings in the Melbourne Registry of the Supreme Court against Bendigo Health. Her claim relates to alleged negligent treatment at what is locally known as the ‘Bendigo Base Hospital’ (‘Hospital’).

Mrs McCready lives in Toolleen, north-east of Bendigo, and the Hospital is located in Lucan Street, Bendigo. It is operated by Bendigo Health, the defendant.

The Court, of its own motion,[1] gave Mrs McCready’s lawyers an opportunity to make submissions as to why the proceeding should not be transferred from the Melbourne Registry to the Bendigo Registry for hearing in Bendigo.
[1]Traditionally, such an application would be brought by one of the parties. Here, the Court acted under s 47 and/or s 49 of the Civil Procedure Act 2010 (Vic) and r 47.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’).

Mrs McCready’s lawyers said that it is inconvenient and costly for themselves, counsel, and expert witnesses to prosecute the case in Bendigo, and asked that the trial remain listed in Melbourne. Bendigo Health sought that the trial be heard in Bendigo.

For reasons I will now set out, I am satisfied that the trial should be heard in Bendigo.

Background facts

Mrs McCready is now 64 years of age. According to her statement of claim, she was admitted to the Hospital emergency department on 21 August 2012 with symptoms consistent with a vascular compromise of her right leg. The gist of her claim is that a number of steps were not taken by the Hospital staff to identify and treat the developing problem in her right leg. As a consequence, she developed compartment syndrome in the leg, and underwent an above-knee amputation.

The writ was issued on 13 May 2014 for a trial by judge and jury, by her solicitors who practice in Ringwood. Mrs McCready seeks damages for pain and suffering, medical and like expenses and loss of earning capacity. The proceeding has now reached the point where further and better particulars of the statement of claim have been filed by Mrs McCready.

A defence was filed by the Bendigo Health’s solicitors who are based in Melbourne’s CBD.

The principles

The starting (but certainly not the end) point is that the Rules permit a plaintiff to choose the venue at which the proceeding is to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCready v Bendigo Health

Details

AGLC: McCready v Bendigo Health [2014] VSC 565
Case: [2014] VSC 565
Decision Date: 7 November 2014 (Reasons 12 November 2014)

CaseChat Overview and Summary

McCready v Bendigo Health was a case before the Supreme Court of Victoria. The plaintiff, McCready, brought proceedings against Bendigo Health, a health service provider, alleging medical negligence. The nature of the dispute centred on whether the case should be heard in the circuit court in Bendigo or if a change of venue was warranted due to concerns about potential bias and the ability to receive a fair trial in the original jurisdiction. The case hinged on the interpretation and application of Rules 5.08 and 47.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The primary legal issue before the court was whether the circuit court in Bendigo was the proper venue for the trial, given the plaintiff's concerns about potential bias and the fairness of the proceedings in that jurisdiction. The court needed to consider the relevant statutory provisions and case law to determine if there were valid grounds to change the venue. The considerations included the potential for prejudice, the availability of an impartial jury, and the practicalities of conducting the trial in the proposed alternative location.

In deciding the matter, the court undertook a thorough analysis of the evidence presented by the plaintiff regarding potential bias and the fairness of the Bendigo circuit court as a venue. The court also examined the procedural fairness required under the rules and relevant case law. Ultimately, the court found that while the plaintiff had raised legitimate concerns, there was insufficient evidence to conclude that a change of venue was necessary. The court held that the Bendigo circuit court remained the proper venue for the trial, and thus, the application for a change of venue was dismissed. The plaintiff's concerns did not meet the threshold required to warrant a relocation of the proceedings.

The final orders of the court were that the application for a change of venue was dismissed, and the case was to proceed as scheduled in the Bendigo circuit court. The court emphasised the importance of procedural fairness and the need for a robust demonstration of bias or unfairness to successfully argue for a change of venue.

Orders