Northern Territory of Australia v Ward No. Scgrg-99-695 Judgment No. S318

[1999] SASC 318

NORTHERN TERRITORY OF AUSTRALIA v WARD

[1999] SASC 318

Civil

1 WICKS J In this matter the plaintiff, the Northern Territory of Australia, seeks the removal of an action commenced in the District Court of South Australia into the Supreme Court and the subsequent transfer of the action to the Supreme Court of the Northern Territory pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987. The defendants, Mr and Mrs Ward are the plaintiffs in the District Court Action.
2 The District Court action is in respect of a claim against the Northern Territory for negligence and breach of contract on the part of the Alice Springs Hospital, a public hospital owned by the Northern Territory.  The action in question was commenced in the District Court on 30 October 1998.
3 Section 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 provides that where a proceeding ("the relevant proceeding") is pending in a court other than the Supreme Court and where it appears to the Supreme Court that an order should be made in relation to the relevant proceeding so that consideration can be given to whether it should be transferred to another court, the Supreme Court may remove the proceedings into the Supreme Court.
4 Section 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 provides that where a proceeding ("the relevant proceeding") is pending in the supreme Court and it appears to the Supreme Court that it is in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory, the Supreme Court is to transfer the proceedings to that court. The plaintiff, the Northern Territory, argues that it is in the interests of justice for these proceedings to be transferred to the Northern Territory Supreme Court.
5 The following circumstances are referred to in an affidavit filed on behalf of the plaintiff in connection with the application for the transfer of the action to the Northern Territory:

1. The subject matter of the proceedings is the course of medical treatment of Mrs Ward by the plaintiff.  This took place at Alice Springs.

1. At the relevant time, the defendants lived and worked in the Northern Territory.  This is of minimal significance.

1. The defendants presently live and work in the Northern Territory.

1. The bulk of evidence in relation to the question of liability will be given by the treating medical and nursing staff of the Northern Territory residing within that territory.

1. The medical and hospital notes of Mrs Ward are retained by the hospital and will need to be produced at the trial.

1. The Court may need to view the hospital and consider evidence in respect of the environment and resources under which it operates.

1. The solicitors for the defendants can continue to act for them and attend any necessary conferences by telephone link.

6 Against the plaintiff is the fact that there are a number of specialist witnesses who would need to be brought to Alice Springs from Adelaide in order to give evidence unless video link facilities are available.  In answer to that, Mr Sturt, the solicitor acting for the plaintiff said in an affidavit sworn on 30 June 1999:

1. While there may there may be certain experts called by the defendant in relation to the matter, the plaintiff contends that that evidence can be easily disposed of by way of video conferencing from Adelaide.  Video conferencing facilities are available at the Supreme Court of the Northern Territory in Alice Springs and regularly used for matters such as this where experts from outside the Northern Territory are often called."

7 There is also the question of representation of the defendants if the proceedings are to be removed to Alice Springs. Subsection 5(8) of the Jurisdiction of Courts (Cross-Vesting) Act enables a practitioner in Adelaide to continue to act where the proceedings are transferred under the above Act to some other jurisdiction.
8 It appears that the solicitors for the defendants can continue to act in the matter.  It is probably no more expensive and inconvenient to engage a barrister from Adelaide than from Darwin or anywhere else in Australia.  I do not see the question of representation as necessarily posing a difficulty.
9 Also, there is the fact that this application has been made very late in the piece.  Naturally, the defendants are anxious to proceed with the litigation and have the whole affair put behind them as quickly as possible.  Normally an application under cross-vesting legislation would be made at a very early stage in the proceedings, preferably before a defence is filed so that the court to which the proceedings are transferred is in a position to manage the case according to its own procedures rather than have the case prepared according to different procedures which may or may not be satisfactory from the point of view of the court to whom the action is transferred.
10 There might be some element of delay in effecting the transfer.  In the scheme of things, it would seem to me that a transfer could be effected with the minimum of delay and that this consideration should not carry much weight.  It should be borne in mind that this action has not yet been entered for trial.
11 One reason for not making this application earlier was due to the belief on the part of the solicitors acting for the plaintiff that Mr and Mrs Ward were residing in Adelaide whereas in fact they had returned to Alice Springs.  Preparation of the case is at an advanced stage.  According to the defendants’ solicitors all the major procedural steps have been taken.  Also, it appears that counsel has been briefed by the solicitors on behalf of the defendants. 
12 There is no evidence before me of the likely time to elapse before the matter can be heard.
13 In the circumstances I have weighed all the above considerations carefully and have given the matter some thought.  I propose to order that the action be removed into the Supreme Court and subsequently transferred to the Supreme Court of the Northern Territory.  I make the following formal order:

1. That pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 the proceedings in Action No 1563 of 1998 in the District Court of South Australia wherein Glenda Anne Ward and Damien Ward were plaintiffs and Northern Territory of Australia was defendant be removed from the District Court of South Australia into this Court, the Supreme Court of South Australia.

1. That upon the completion of such removal, the proceedings be transferred pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 to the Supreme Court of the Northern Territory of Australia.

1. That the plaintiff serve an office copy of this order upon the Registrar of the District Court of South Australia within 14 days and that forthwith upon such service the Registrar remit to this Court the complete file of the District Court of South Australia maintained in respect of the action.

1. That this order be drawn up and sealed and a copy of it forwarded to the Registrar of the Supreme Court of the Northern Territory of Australia within the next 21 days together with the file of the action.