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

1. 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.

1. 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.

1. 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 Dr Umberto Boffa. The eighth defendant is Alfred Health (the Alfred Hospital). The first to seventh defendants were all medical practitioners at the St Kilda Superclinic, St Kilda, Victoria between 3 June 2010 and 18 July 2010. Currently, the first, third, fifth and seventh defendants are still employed by the eighth defendant. The second defendant now resides in Moonie Ponds in Victoria and the fourth defendant resides in Darwin in the Northern Territory.

1. The plaintiff relied on the affidavit of his solicitor Julie Mahoney dated 15 November 2013. The first defendant relied on two affidavits of Mia Campbell dated 6 November 2013 and 18 November 2013. The fourth and sixth defendants relied on the affidavit of Lara Larking dated 19 November 2013. The eighth defendant relied on the affidavit of Hayley Marano dated 4 November 2013.

Cross vesting scheme

1. The cross vesting scheme gives the Supreme Court of every state and territory the jurisdiction to hear proceedings based on the law of another state or territory: s 4 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) and BHP Biliton Limited vSchultz [2004] HCA 61; (2004) 221 CLR 400 per Gummow J at 431.

The relevant legislation

1. Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) relevantly reads:

"5 Transfer of proceedings

...

(2) Where:

...

(b) it appears to the ... court that:

...

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

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

The application of cross-vesting principles

1. The concept of the "interest of justice" involves a broadly based and flexible concept (see discussion by Street CJ in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730)

1. The process of determining the "interests of justice" entails a judicial evaluation there being no precise or fixed principles, which guide or determine the weight to be attached to particular factors of a potentially varied nature, but a determination under s 5(2)(b)(iii) does not involve the exercise of a common law discretion: see BHP Biliton Limited vSchultz [2004] HCA 61; (2004) 221 CLR 400 per Kirby J at [172].

1. Both parties referred to Reid v Wright [2012] NSWSC 1149 and I shall respectively reproduce and adopt the principles set out by McCallum J in Reid v Wright [2012] NSWSC 1149 at [6] to [11]. They are as follows:

"6 The burden of the task of determining whether it is "in the interests of justice" that the proceedings be determined by the Supreme Court of another State is to identify the "more appropriate" forum for the proceedings: James Hardie & Company Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [87] per Mason P; BHP Billiton Limited v Shultz [2004] HCA 61; (2004) 221 CLR 400 at [13] per Gleeson CJ, McHugh and Heydon JJ; [77] per Gummow J and [161]-[169] per Kirby J.

7 The inquiry has alternatively been characterised as requiring the Court to identify the "natural forum" for the proceedings: British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 at [44]; Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [69].

8 The determination as to the more appropriate or natural forum for the proceedings should be made "without specific emphasis in favour of the choice of forum made by the plaintiff": Schultz at [77] per Gummow J. As I accepted in Kok at [12], the High Court took care in Schultz to correct the contrary view: at [25] per Gleeson CJ, McHugh and Heydon JJ; at [72] and [77] per Gummow J; and [168] per Kirby J.

9 In James Hardie & Co v Barry, Spigelman CJ expressed the view that, where the place of the tort and the residence of the parties coincide, that will generally be determinative of the issue of the "appropriate Court". However other factors, such as the governing law of the wrong, are also relevant.

10 Another relevant factor is whether the assessment of any questions arising in the litigation is dependent upon a degree of local knowledge: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 729D per Rogers AJA.

11 The Act does not confer a procedural discretion on the court in which the proceedings were commenced. If it appears to the court that it is in the interests of justice that the proceedings be determined by the Supreme Court of another State, the exercise of the power is mandated by the statute: Schultz at [14], [62]."

1. Also in Amaca Pty Limited v Harris [2005] NSWSC 622, Hall J at [34] - [35] identified "connecting factors" which may include:

"(a) the law governing the relevant transaction or the occurrence of the "wrong" sued on;

(b) the place where the parties respectively reside or carry on business;

(c) the procedural and evidentiary advantages of one court as against the other;

(d) the specialisation of a particular Court or Tribunal;

(e) typical case management issues, including convenience and cost factors such as:

(i) the availability of and location of witnesses; and

(ii) the expense or costs of litigating in one forum or the other (including legal fees, travelling and accommodation expenses)"

1. I shall refer to a number of these factors and then consider how the final balance of the interests of justice should be struck.

Place of the alleged tort

1. The acts and omissions upon which the plaintiff bases his claim occurred in Victoria. The substantive statute law to be applied in determining such a claim, the law that governs the present claim is the statute law of Victoria, wherever the case is heard: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at [86]-[87] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

1. The legislation that would govern this claim and the assessment of damages in New South Wales is the Civil Liability Act2002 (NSW). The legislation that would govern this claim and the assessment of damages in Victoria is the Wrongs Act 1958 (Vic).

1. I will briefly outline the legislative provisions in both Victoria and New South Wales.

1. Pursuant to s 16 of the Civil Liability Act 2002 (NSW), damages for non economic loss may not be recovered unless the severity of the non economic loss is at least 15% of a most extreme case.

1. In Victoria, damages for non-economic loss are only recoverable if the plaintiff has suffered a significant injury (s 28LE of Wrongs Act 1958 (Vic)). A significant injury is defined by ss 28LB and 28LF and amounts to 5% whole person impairment for physical injuries and 10% whole person impairment for psychological/psychiatric injuries, as assessed according to American Medical Association's Guides to permanent impairment. That is the identical guide used by medical practitioners in New South Wales when assessing entitlement to damages for non economic loss under the Motor Accidents Compensation Act 1999 (NSW).

1. There may be an extra procedural step involved in Victoria, namely that if the plaintiff is assessed by an approved medical practitioner as having suffered a significant injury, he must serve the defendants with a Certificate of Assessment. After the plaintiff serves a Certificate of Assessment, the defendants may elect to refer the plaintiff to the Medical Panel to determine whether the degree of impairment resulting from injury to the claimant alleged in the claims satisfies the 5% threshold for physical injuries, and 10% threshold for psychiatric/psychological injuries. This medical panel sits only in Victoria. The plaintiff says that given his doctors' assessment of his impairment it would be unreasonable for the defendants to require the plaintiff to undergo an assessment by the Victorian Medical Panel.

1. Pursuant to s 28LO of the Wrongs Act 1958 (Vic) the defendants may agree to waive assessment of impairment and concede that the plaintiff has suffered a significant injury, within the meaning of the Act. The plaintiff points out that in this regard, the plaintiff was assessed by Dr Sophia Lahz, Rehabilitation Specialist, in relation to his physical injuries, at 20%, four times the required threshold, by Dr Stuart Taylor, Consultant Urologist, at over 5%, and by Associate Professor Carolyn Quadrio, Consultant Psychiatrist, at 19% in relation to his psychological injuries. It is difficult to tell whether the defendants will elect to refer the plaintiff to the Medical Panel as to date, they have not served any medical evidence.

1. In Victoria, once it is established that the plaintiff is entitled to damages for non economic loss the process to determine an award of damages adopted by the Court is similar, if not the same to as the approach taken in New South Wakes (compare s 28HA of Wrongs Act 1958 (Vic) and s 17A Civil Liability Act 2002 (NSW). The standard of care by which defendants' actions are to be judged and the principles of causation are the same in Victoria as in New South Wales (compare ss 51, 52 and 59 of Wrongs Act 1958 (Vic) and ss 5D, 5E and 50 of the Civil Liability Act 2002 (NSW)).

1. The Wrongs Act 1958 (Vic) contains provisions, which stipulate condition for an award of damages for:

(a) Damages for gratuitous attendant care service (ss 28IA and 28IB of the Wrongs Act 1958 (Vic), compared to s 15 of Civil Liability Act 2005 (NSW));

(b) Damages for past and future economic loss (s 28F of the Wrongs Act 1958 (Vic), compared to s 12 of Civil Liability Act 2005 (NSW)); and

(c) Damages for future economic loss including care and out of pocket expenses (s 28I of Wrongs Act 1958 (Vic), compared to ss 13 and 14 of the Civil Liability Act 2002 (NSW)).

1. Both States have a mediation process that have good settlement results.

1. Overall, the provisions of the Wrongs Act 1958 (Vic), and Civil Liability Act 2002 (NSW) relating to the award of damages are similar.

1. I accept that the Supreme Court of this State is capable of applying the relevant statutes. However, except perhaps in the case of uniform national legislation, the existence of a local statute should generally be considered a factor pointing in favour of the place of the alleged tort as the natural or appropriate forum. It is generally better that the laws of a State be construed by the Supreme Court of that State: see Schultz at [248] per Callinan J.

1. The place of the tort is Victoria and the law applicable is the Wrongs Act 1958 (Vic). It is better that the Wrongs Act be construed by the Supreme Court of Victoria. These factors favour the defendants.

Residence of the parties

1. Six of the individual defendants still reside in Victoria and the eighth defendant is owned an operated by an organisation that is incorporated in Victoria. The fourth defendant resides in Darwin so he will have to travel or be available by videolink wherever these proceedings are heard. The first, fourth, fifth, sixth seventh and eight defendants are all represented by solicitors located in Victoria and these solicitors all have specialist expertise in the area of medical negligence claims that arise in Victoria. However, the solicitors for the first and fifth defendants are Avant Law, who have solicitors from Avant Insurance Limited who represent it in New South Wales. The solicitors for the second defendant HWL Ebsworth, have offices in both Sydney and Melbourne. The solicitors acting for the fourth and sixth defendants are TressCox Lawyers, who also have offices in both Sydney and Melbourne. The solicitors for the seventh defendant only have offices in Melbourne. The solicitors for the eighth defendant are Lander and Rogers Lawyers, who have offices in both Sydney and Melbourne.

1. The plaintiff resides in Cronulla in the State of New South Wales. The plaintiff has strong ties to the area as he relies upon his partner and his mother for assistance. The plaintiff is impecunious and is on the disability support pension. His solicitors Stacks Goudkamp are located Sydney and are acting for him on a contingency basis. They do not have offices in Melbourne, Victoria. Mr David Higgs SC and Mr Frank Tuscano, of the New South Wales Bar, have been briefed on behalf of the plaintiff.

1. While senior counsel submitted that the plaintiff would need to instruct new solicitors in Melbourne that would act on a contingency basis, the solicitor for the plaintiff has not given evidence to the effect that she will not act for the plaintiff should these proceedings be transferred to Victoria.

1. I should also take into consideration the plaintiff's ability to firstly give instructions; and secondly to provide a history to doctors; and secondly, his ability to travel. Ms Julie Mahony, the plaintiff's solicitor says that she prefers to consult the plaintiff in person due to his personal difficulties, including hyperactivity, difficulty concentrating and his tendency to jump from one topic to another. Ms Mahony also records that each time she has consulted with the plaintiff either his mother or partner or both were present to provide him with support.

1. Associate Professor Quadrio, a consultant psychiatrist (report dated 21/6/13) states that when she interviewed the plaintiff he attended with his mother and his partner, Nicki. Associate Professor Quadrio observed that during the interview the plaintiff was manifestly quite agitated and his thought processes were pressured and fragmented which is characteristic of a trauma history. His high level of agitation did not settle over the course of the interview which indicated a very marked degree of hyperarousal.

1. In Ms Mahony's opinion, the plaintiff is restricted in his travel as a result of his injuries and would require the assistance of a carer to enable him to travel to Victoria. Thee plaintiff does not drive and requires a carer to perform this role. When the plaintiff attends an appointment with Dr Sophia Lahz in Katoomba, a drive that takes less than two hours from Cronulla (the plaintiff's residence), the plaintiff has to be driven by his mother and requires an overnight stay to manage the discomfort of travelling.

1. I accept that the plaintiff is able to travel but with difficulty. Elsewhere in the medical evidence it is recorded that the plaintiff together with a support person travelled to Hawaii but spent three days in bed recovering from the flight.

1. While the flight to Melbourne is only about one hour and twenty five minutes, the plaintiff will also required to travel to and from the airport both in Sydney and Melbourne. If proceedings are transferred to Victoria, the plaintiff will be obliged navigate his way around Melbourne to attend scheduled medical examinations with Victorian experts. He also may be required attend the Medical Panel. In my view, it would be unrealistic to expect that the plaintiff could manage attending these appointments without a support person to assist him find his way there. Further, he would need the support person to accompany him to medical examinations and be present during them because of the difficulty he experiences with his thought processes and agitation. The plaintiff would also be required to travel to and stay overnight in Melbourne while the hearing takes place, if the proceedings do not settle before hand.

1. All but one of the defendants reside in Victoria, the plaintiff resides in New South Wales. I accept that it will cause the plaintiff some difficulty to attend the medical appointments and hearing in Melbourne. However, the balance here falls in favour of the defendants.

Convenience of witnesses

1. Counsel for the first defendant submitted that the first defendant's solicitors are likely to obtain evidence in relation to liability and from expert medical practitioners resident in Victoria and such experts would then need to travel to New South Wales to give evidence at trial. So far as the defendants instructing Victorian experts, plaintiff submitted that there are many medical experts in New South Wales who are qualified to assess the plaintiff's injuries under the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th Edition). As the defendants have not yet obtained medico-legal reports, where the plaintiff has to be examined if these proceedings were to stay in New South Wales, I agree that the defendants could retain New South Wales experts.

1. Counsel for the first defendant also submitted that each defendant will require their solicitor to attend conferences, mediations and the hearing in New South Wales in order to properly represent their clients, or alternatively, each defendant will require their solicitors to instruct an agent to appear on their behalf. It would appear that for most of the defendants, the solicitors have offices in both Sydney and Melbourne that can represent these defendants.

1. The plaintiff's senior counsel submitted that none of the defendants will be required to give evidence apart from the day that they give any oral evidence that is required because they will have already provided their evidence in statement form prior to the hearing. According to the plaintiff, the low cost and availability of air travel from Melbourne means that they can expect to attend court and return to Melbourne on the same day. Each of the defendants has a right to be present throughout the trial. However, if they chose to be present, this would mean eight defendants have to take time off work and travel to and from Sydney.

1. The plaintiff will call at least three lay witnesses at the hearing which includes the plaintiff, the plaintiff's mother and the plaintiff's partner. All of these witnesses reside in New South Wales. The plaintiff intends to call at least seven Sydney based experts. The expert witnesses, whom the plaintiff engaged, with exception of Dr James Lynch, practise in New South Wales. The plaintiff's treating doctors are resident in New South Wales.

1. The solicitors for the eighth defendant intend to call three lay witnesses namely two Senior Registrars in Emergency and one intern who treated the plaintiff at the Alfred Hospital in Victoria. The intern is now a Registrar and resides in rural Victoria.

1. The convenience of the parties and potential witnesses give rise to competing considerations in the present case. There will plainly be inconvenience to one party or the other wherever the proceedings are heard.

Prejudice

1. The St Kilda Superclinic is located within a high density area of Melbourne. It provides services to both chronically and acutely ill patients. It provides an after hours services, creating an alternative to a hospital emergency department. There are approximately 20 doctors practising at the clinic. Between 170 and 350 patients attend the clinic per day.

1. Counsel for the first defendant submitted that if four of the clinic's working doctors were required to attend a trial in New South Wales for a period of up to several weeks, the clinic would be compromised in its ability to provide its normal level of medical care to the local community. This is because although 20 doctors work at the clinic, but most of them are international medical graduates. These doctors have restrictions on their registration which means they are not permitted to practice in normal business house. Only six or seven of the clinic's doctors have unrestricted or 'vocational' registration so they are the only doctors who could provide care in normal working hours. If the four doctors were not here, the clinic would have only two or three doctors available for all business hours. On some days they would have no other doctors available during business hours and the clinic would have to operate as an after hours service only. The clinic has recently commenced a program with the Alfred Hospital. This program with the Alfred Hospital means that when patients call triple zero (000), the Ambulance Victoria operator assesses the patient on the line and determines if a patient can be sent to the clinic, instead of hospital. They then advise the patient to attend the clinic to be triaged and, if possible, treated.

1. Senior counsel for the plaintiff submitted that to require the plaintiff to attend medical appointments in Victoria is "positively cruel" and for the plaintiff to be forced conduct his proceedings in Victoria would place an unreasonable financial burden on him which results in actual prejudice to him.

1. I accept that there will be some prejudice experienced by both parties.

Conclusion

1. The more appropriate forum is Victoria. After consideration is given to all the relevant factors referred to in this judgment, I am persuaded that it is in the interests of justice that these proceedings be determined by the Supreme Court of Victoria.

1. I make an order that these proceedings be transferred to the Supreme Court of Victoria.

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.

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Decision last updated: 28 November 2013