McLellan v Savicky - [2013] NSWSC 1756

Supreme Court

New South Wales

Medium Neutral Citation: McLellan v Savicky [2013] NSWSC 1756
Hearing dates: 19/11/2013
Decision date: 28 November 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) These proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdictions of Courts (Cross Vesting) Act 1987 (NSW).
(2) Costs are reserved.

Catchwords: CROSS VESTING - application to transfer proceedings to Victoria - cross vesting principles - balance of convenience - prejudice to parties - place of alleged tort - whether it is in the interests of justice that the proceedings be transferred to Victoria
Legislation Cited: Civil Liability Act 2002
Jurisdiction of Courts (Cross Vesting) Act 1987
Motor Accidents Compensation Act 1999
Wrongs Act 1958 (Vic)
Cases Cited: Amaca Pty Limited v Harris [2005] NSWSC 622
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Biliton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Reid v Wright [2012] NSWSC 1149
Category: Principal judgment
Parties: Daniel McLellan (Plaintiff)
Dr Alex Savicky (First Defendant)
Dr Rijad Kucuk (Second Defendant)
Dr Sam Breitner (Third Defendant)
Dr Deky Souvannavong (Fourth Defendant)
Dr John Jory (Fifth Defendant)
Dr Anna Passlow (Sixth Defendant)
Dr Umberto Boffa (Seventh Defendant)
Alfred Health (Eighth Defendant)
Representation: Counsel:
D Higgs SC (Plaintiff)
EC Muston and NF Case (First Defendant)
A Roshan (Second Defendant)
P Wright (Fourth and Sixth Defendants)
A Smith (Eighth Defendant)
Solicitors:
Stacks Goudkamp (Plaintiff)
Avant Law (First and Fifth Defendants)
HWL Ebsworth (Second Defendant)
TressCox Lawyers (Fourth and Sixth Defendants)
Lander & Rogers Lawyers (Eighth Defendant)

File Number(s): 2013/168798
Publication restriction: Nil

Judgment

HER HONOUR: The plaintiff commenced proceedings in this Court on 31 May 2013 against eight defendants alleging breach of duty of care in provision of medical services, including, failure to diagnose and/or treat L4/5 Osteomyelitis/Discitis in the period 3 June 2010 to 18 July 2010, as a result of which he suffered injury, loss and damage.

By notice of motion filed 25 October 2013, the first defendant seeks an order that these proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW). The plaintiff opposes the transfer of those proceedings to the Supreme Court of Victoria. The fourth, fifth, sixth, seventh and eight defendants consent to the transfer. The second defendant neither opposes nor consents to the application. The third defendant has not filed a notice of appearance and default judgment has been sought against him but not yet granted. He was called three times outside court but did not appear.

The plaintiff is Daniel McLellan. The first defendant is Dr Alex Savicky. The second defendant is Dr Rijad Kucuk. The third defendant is Dr Sam Beitner. The fourth defendant is Dr Deky Souvannavong. The fifth defendant is Dr John Jory. The sixth defendant is Dr Anna Passlow. The seventh defendant is…

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 McLellan v Savicky

Details

AGLC: McLellan v Savicky [2013] NSWSC 1756
Case: [2013] NSWSC 1756
Decision Date: 28 November 2013

CaseChat Overview and Summary

The matter of McLellan v Savicky was before the Federal Circuit Court, where the central issue was the application by the plaintiff to transfer proceedings from the Federal Circuit Court of Australia in New South Wales to the Supreme Court of Victoria. The dispute involved a claim for damages arising from alleged tortious conduct, with the plaintiff seeking to transfer the proceedings to Victoria on the basis of cross vesting principles. The defendants opposed the application, arguing that it was not in the interests of justice to transfer the proceedings.

The primary legal issues before the court were whether it was appropriate to transfer the proceedings to Victoria under the cross vesting provisions and whether the transfer would result in prejudice to either party or an imbalance in the convenience of the parties. The court had to weigh the convenience and interests of the parties against the principle of cross vesting, which allows for the transfer of proceedings to another jurisdiction where a related matter is already being heard.

The court considered the balance of convenience and the place of the alleged tort in determining whether the transfer was warranted. It found that the balance of convenience did not significantly favour either party, and the place of the alleged tort was in New South Wales. Given these factors, the court concluded that it was not in the interests of justice to transfer the proceedings to Victoria. The court held that the application should be dismissed, as the transfer would not serve the interests of justice and would potentially prejudice the defendants.

Consequently, the court dismissed the plaintiff's application to transfer the proceedings to Victoria. The proceedings were to remain in the Federal Circuit Court of Australia in New South Wales.

Orders