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

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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

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

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

HIS HONOUR:

Introduction

1. 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’).

1. 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.

1. 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’).

1. 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.

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

Background facts

1. 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. 

1. 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.

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

The principles

1. 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 be heard.[2]

   [2]r 5.08(1) and r 47.01 of the Rules.

1. In effect, this represents the default position and, absent any other factor, the plaintiff’s choice of venue will prevail.  That choice will be displaced if other considerations satisfy a court that the chosen venue is inappropriate.

1. As I read the authorities, the primary factor in determining the appropriate venue is that of the balance of convenience. 

1. This consideration was emphasised by Hunt J in Hansen v Border Morning Mail Pty Ltd.[3]  In the course of a review of the relevant New South Wales authorities and rules relating to change of venue, his Honour said as follows:

It had long been held under those previous rules that local cases should be heard locally.  Weight was given to the plaintiff’s entitlement to choose the venue; but statements made by judges in some of the cases that the plaintiff’s choice could only be overcome by demonstrating a “manifest” preponderance of convenience of having the trial heard elsewhere, although repeated, were either not supported by or inconsistent with the views expressed by the other judges in those cases.  In the end, if it was shown by the defendant that the balance of convenience in his favour outweighed that entitlement of the plaintiff, the venue would be changed.

…

The balance of convenience was therefore the governing principle and was determined (in accordance with the relevant rule enforced at the time) by reference to the nature of the case, the residence of the parties and any other circumstances of the particular case.[4] 

[3](1987) 9 NSWLR 44 (Hansen).

[4]Hansen, 46-47.

1. Although the primary issue for Hunt J was whether a fair trial in a defamation case could be held in Albury, it is clear that his Honour regarded the balance of convenience test as the primary consideration in deciding whether to transfer the case from that city to Sydney:

In my view, these cases (including the two lines of authority to which the plaintiff has referred me) should be interpreted and applied so as to require the party who seeks to have the trial otherwise than in the place where the balance of convenience would dictate to establish either that a fair and unprejudiced trial might not be had at that place (in the sense that there is a real risk as opposed to the remote possibility that the trial would not be of such a character) or that reasonable people may suspect that there was such a real risk that the trial would not be of such a character.[5]

[5]Hansen, 46-47.

1. I respectfully agree with his Honour’s conclusion that the balance of convenience must be the primary factor in determining the appropriateness of a venue of a trial – the choice of the plaintiff is subsidiary to the result of that analysis.

1. There is, I think, a further consideration that cannot be overlooked: it is in the interests of the administration of justice in this state that cases arising out of a particular regional event and involving residents of that region be determined in the local court, if that can be accommodated and a fair trial ensured.  As Warren CJ has observed in several extra-judicial statements, the Supreme Court of Victoria is a court for all Victorians – this means not only the litigants but also those in regional centres who are entitled to expect that civil litigation arising in that area will be determined in the local court. 

1. Examples of this practice abound in recent years.  For instance, in the bushfire litigation arising out of the 2009 Black Saturday bushfires, four trials were conducted or proposed to be conducted at regional courts – Horsham, Beechworth, Hamilton and Warrnambool.  In two of those proceedings, the trials went for over a month and many, many expert witnesses (from Melbourne, interstate and overseas) gave evidence at those regional courts – some for over a week at a time.  No application was made (or even suggested) in the course of any of those pieces of litigation to transfer the proceedings to Melbourne. 

Application of principles to this case

1. The balance of convenience and the interests of justice clearly point to this trial being heard in Bendigo and not in Melbourne:

(a)      Inconvenience to the litigants and lay witnesses

1. Mrs McCready is an amputee.  She has difficulty with movement and requires considerable assistance.  She lives at Toolleen, which is only a short distance from Bendigo, and from which she would be able to travel each day for the trial without having her routine unduly disrupted.  Undoubtedly, members of her family and friends would be required to give evidence and their lives (including looking after Mrs McCready) would also not suffer undue disruption.  The idea that she would spend perhaps weeks awaiting trial in Melbourne is particularly unattractive.

1. Six of the defendant’s medical witnesses as to liability still work at the Hospital.  Not only would their own work (and that of the Hospital) be disrupted significantly if they were to travel to Melbourne, but the welfare of their patients at the Hospital may be compromised. 

1. I should add that I would expect that Mrs McCready may wish to call at least one local medical practitioner to support her case.

(b)     Inconvenience to the expert witnesses and additional costs

1. I was told that a medico-legal expert witness engaged by Mrs McCready will need to travel for the trial from Adelaide.  Assuming he or she flies to Melbourne, then the difference in time in travelling to Bendigo as opposed to the Melbourne CBD is about an hour to an hour and a quarter – not allowing for trying to find a park in the Melbourne CBD.  Tullamarine airport is located on the north side of Melbourne and it is not difficult to find the road to Bendigo – many have done this in the past. 

1. I am also by no means convinced that any significant additional cost would be incurred by such an expert giving evidence in Bendigo as opposed to Melbourne.  No evidence was adduced to support this proposition.

1. There is another group of experts I should mention. As part of Mrs McCready’s case on quantum, she will need to call a number of witnesses as to cost of living and therapy expenses (e.g. occupational therapists, physiotherapists and actuaries).  It was said that having the trial in Bendigo would result in an additional costs and, perhaps, delay in the trial.

1. I reject this proposition.  Each of the experts will be required to file Order 44 reports.  No doubt if there is a challenge to those reports by experts engaged by Bendigo Health then joint reports can be obtained, which may ultimately lead to a resolution of some – if not all – of the issues in dispute.  Even allowing that an expert is required to give evidence at the trial, then it is by no means certain he or she would need to venture to Bendigo – as appears to be dreaded by the lawyers for Mrs McCready.  His or her evidence could be taken by videolink (as is done week-in, week-out in Victorian courts).  If worse came to worst, then the expert would need to travel to Bendigo for a day.  It is a very pleasant and historic town – indeed, at one time, it was the richest in the country.  I can see no vice or undue expense (over and above that of the witness giving evidence in Melbourne) involved in this exercise.

1. Finally I should add that there was no evidence that any of the experts, as opposed to the lawyers, were resistant to travelling to Bendigo.

(c)       Inconvenience to counsel

1. This submission failed over a hundred and twenty years ago and should fail again now.  Leversha v Wrangham[6] involved an application made in 1889 to transfer a trial from Sandhurst (now known as Bendigo) to Melbourne.  The defendant lived in Benalla and the plaintiff in Sandhurst.  The contract that was the subject of the claim was made in Sandhurst.  A’Beckett J  said:

It was suggested that the expense of sending counsel to Sandhurst from Melbourne would be an additional expense.  That may very likely be so; but speaking from myself I would certainly refuse to change the venue where it is otherwise appropriate merely on the ground that counsel’s expenses will be greater in the country than Melbourne.  If that were a good ground, scarcely any important case would ever be tried in the circuit courts.[7]

[6](1889) 15 VLR 363, 364.

[7]Leversha v Wrangham (1889) 15 VLR 363, 364.

1. Undoubtedly it may be more convenient for counsel and their instructing solicitors to conduct the case in Melbourne.  But that is not the test.  The case must be looked at as a whole and, particularly, the interests of the litigants should be paramount.

A further consideration: community participation

1. Although by no means determinative of the result, I regard it as highly desirable that residents of Bendigo have the opportunity to watch and, perhaps as jurors, participate in a trial involving the treatment of a local resident at the major hospital in their city.  The events giving rise to the claim arose in Bendigo and it is the natural forum for the case.  It was not suggested by either party that either Mrs McCready or the Hospital could not obtain a fair trial in Bendigo.  No doubt the selection of the jury might require a greater pool than usual, but this is not an insurmountable problem.

Conclusion

1. This case should be tried at the Bendigo court.   The claim arose in that city, and there would be significant inconvenience to Mrs McCready and Bendigo Health’s medical witnesses if the case remained in Melbourne.

1. I am not satisfied that any real inconvenience or additional cost will be caused to the expert witnesses to be called by Mrs McCready.

1. As I indicated to the parties in Court, I propose to make the following orders:

1.The proceeding be transferred to the Civil Circuit List to be heard in Bendigo.

2.The proceeding be given a special fixture of 14 September 2015 (subject to further order), on an estimate of 15-20 days as a trial by jury.

3.Costs of this hearing be costs in the cause.