Page bhnf Page v Gold Coast Hospital and Health Service

[2025] NSWSC 315

Supreme Court

New South Wales

Medium Neutral Citation:

Page bhnf Page v Gold Coast Hospital and Health Service [2025] NSWSC 315

Hearing dates:

3 April 2025

Date of orders:

3 April 2025

Decision date:

03 April 2025

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order the defendant’s notice of motion filed 31 January 2025 be dismissed.

(2) Order the defendant pay the plaintiff’s costs of and incidental to the notice of motion.

Catchwords:

CIVIL PROCEDURE – cross-vesting – Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5(2) – alleged tort in Queensland – lex loci delicti – acts or omissions of hospital concerning plaintiff’s birth –physical and developmental disabilities – interests of justice – Queensland law substantially similar to NSW law – motion dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Liability Act 2003 (Qld)

Civil Liability Regulation 2014 (Qld)

Jurisdiction of Courts (Cross-Vesting) Act1987 (NSW)

Personal Injuries Proceedings Act 2002 (Qld)

Cases Cited:

BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61

Brook v Sommerville [2018] NSWSC 237

Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32

Davies bhnf McRae v Body Corporate for the Phoenician [2016] NSWSC 973

Downes v Affinity Health Pty Ltd [2017] 1 Qd R 607; [2016] QCA 129

Filmalter v Swenson [2025] QSC 32

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Hamilton v Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55

Hunold v Twinn [2018] QCA 308

James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353

John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36

Lloyd v Thornbury [2019] NSWCA 154

Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319; [2012] QCA 315

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559

Southgate v Waterford (1990) 21 NSWLR 427

Texts Cited:

Not applicable

Category:

Procedural rulings

Parties:

Benjamin Richard Page bhnf Susan Page (P)
Gold Coast Hospital and Health Service (D)

Representation:

Counsel:
P Beale / W Evatt (P)
S Kettle (D)

Solicitors:
CMC Lawyers (P)
MinterEllison (D)

File Number(s):

2024/00420106

Publication restriction:

Not applicable

JUDGMENT

Introduction

1. These reasons deal with an application by the defendant to “cross-vest” medical negligence proceedings from this Court to the Supreme Court of Queensland. The plaintiff opposes that order.

2. The application is made under s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (‘the Act’).

3. The plaintiff, who is under a disability, relied upon an affidavit from his solicitor, Tegan Wills, affirmed 5 March 2025, and affidavits from his mother, Susan Page, sworn 5 March 2025, and his father, Richard Page, sworn 5 March and 2 April 2025. The defendant read affidavits from its solicitor, Jillian McAuliffe, sworn 3 February 2025 and 31 March 2025.

4. None of the deponents were cross-examined.

Background

5. It is necessary to set out some of the background facts before dealing with the arguments of the parties and the application itself. These matters are principally drawn from the statement of claim filed 12 November 2024 (‘SOC’; the defendant is yet to file a defence), supplemented by the evidence where necessary.

The plaintiff and defendant

6. The plaintiff, who was born in 2011 and is currently 13 years of age, has severe cognitive, physical and developmental disabilities. He has been diagnosed with unilateral cerebral palsy on his left side.

7. The plaintiff resides with his parents and siblings near Lake Macquarie, NSW. Although the family resided in Queensland in 2011, they moved to New South Wales in 2015.

8. The defendant is the Health District with the management and control of Gold Coast University Hospital (‘the Hospital’).

The plaintiff’s claim

9. By statement of claim filed 12 November 2024, the plaintiff, through his next friend, alleges that the defendant (by its “employees, servants or agents”) failed to exercise reasonable care and skill in the provision of medical services to him and his mother in the course of his mother’s pregnancy, and during his birth, on 17 November 2011 at the Hospital.

10. Shortly stated, the plaintiff’s case is that his mother had a number of “high risk factors” during her pregnancy that, when combined with her presentation on 16 November 2011, meant that she was a “high risk case” (SOC, pars 6 and 7-19). The plaintiff alleges that, had his mother been properly treated and classified as “high risk”, she would not have been discharged on the morning of 16 November 2011 and, inter alia, an urgent caesarean section would have been performed, but was not (SOC, par 31).

11. The plaintiff further alleges that by reason of the failure of the defendant to properly and adequately treat the plaintiff’s mother, the plaintiff’s “condition developed” while the plaintiff’s mother “was in the care of the defendant” (SOC, pars 25 and 33). The “condition” referred to includes a hypoxic brain injury and cerebral palsy.

The statutory provisions and principles

12. Section 5(2) of the Act provides:

(2)  Where—

(a)  a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court), and

(b)  it appears to the first court that—

(i)  the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court,

(ii)  having regard to—

(A)  whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory,

(B)  the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C)  the interests of justice,

it is more appropriate that the relevant proceeding be determined by that other Supreme Court, or

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

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

13. The following matters should be noted about s 5(2) of the Act. First, s 5(2)(a) is plainly satisfied. Secondly, it was not suggested that circumstances envisaged by s 5(2)(b)(i) were here present (in short, that the proceedings in this Court arise out of, or are related to, another proceeding pending in a Supreme Court of another State or Territory). There are no proceedings of that kind pending elsewhere. Thirdly, the matters referred to in ss 5(2)(b)(ii)(A)-(C) are not preconditions to the exercise of the power to transfer the proceedings, but are simply mandatory relevant considerations: Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32 at [73] (‘Comino’). Fourthly, applications involving s 5(2)(b)(iii) concern proceedings that are duly instituted but perceived to be in a forum that is not the preferred one, and thus involve a consideration as to whether it is in the interests of justice that the proceeding be determined by another Supreme Court: James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [86] (‘Barry’). Fifthly, the authorities dealing with “the interests of justice” are well-established, and were relevantly summarised in Comino at [70], as follows:

1.   The determination of whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred depends on what is the "more appropriate" forum for those proceedings without any particular emphasis in favour of the forum selected by the plaintiff: James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [87] (‘Barry’); BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14] and [25] (‘Schultz’). This last matter is sometimes expressed to the effect that there is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz at [25].

2.   Although it has been suggested that there is strictly no onus upon either party to persuade the Court to transfer the proceedings or not, the better view is that the applicant for transfer has to persuade the Court to make the order it seeks: Barry at 380 [100]. That is, unless “it appears” that the proceedings should be determined in another court, “the court does not have power under the act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion”: Irwin v State of Queensland [2011] VSC 291 at [14](f).

3.   The Court must make a “management decision as to which Court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute”: Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714 (‘Bankinvest’); Barry at [87]; Schultz at [14] and [63]. Put slightly differently, the interests of justice are “concerned with the question of which jurisdiction is better placed to determine a dispute between the parties from a practical point of view”: Opes Prime Stockbroking Ltd (In Liq) (Scheme Administrators Appointed) v Stevens [2014] NSWSC 659 at [25].

4.   Rather than the selection of the most advantageous, or least disadvantageous, forum for one of the parties, the “interests of justice” are to be judged by objective factors to facilitate identification of the “natural forum”, in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party: Valceski [Valceski v Valceski [2007] NSWSC 440] at [69].

5.   The interests of justice include a range of matters such as the governing law, forensic advantages and disadvantages, balance of convenience to the parties and the witnesses and convenience to the Court system: Barry at [95].

6.   If “it appears” that one court is more appropriate than the other, however so slightly, then a transfer to the more appropriate court is mandatory; no question of discretion arises: Valceski at [70].

14. There was no dispute about any of these principles; rather, whether the order transferring the proceedings should be made turns upon their application to the facts. Thus, here the critical question is whether “it appears” that it is otherwise in the interests of justice that the proceedings be determined by the Supreme Court of Queensland: s 5(2)(b)(iii). If that conclusion is reached, then (as the above authorities explain) there is no discretion: the proceedings must be transferred to that Court.

Discussion and consideration

Introduction

15. The defendant’s overall argument is that when the interests of justice are considered, it is more appropriate that the proceedings be determined in the Supreme Court of Queensland rather than this Court, with the consequence that the proceedings should – indeed must – be transferred (defendant’s submissions at [15]). The defendant advanced four factors that were argued to be “relevant to determination of the more appropriate forum” – namely, that the “[entirety] of events giving rise to the proceedings occurred in Queensland”; that the “[substantive] law of Queensland applies to the circumstances, as does the regime of damages fixed by Queensland law”; that the “disruption to the plaintiff can be minimised with the prospect of speedy determination of proceedings in Queensland”; and that “the likely witnesses on liability are likely to be Queensland practitioners” (defendant’s submissions at [28]).

16. The plaintiff’s submissions were essentially to the opposite effect and that, when all relevant connecting factors were considered, it could not be concluded that the Supreme Court of Queensland, rather than this Court, is more appropriate having regard to the interests of justice (plaintiff’s submissions at [44]-[45], [47]).

17. I will deal with the relevant factors as advanced by the parties that are said to inform a consideration of, and a conclusion about, the “interests of justice” in my reasons that follow. Before doing so, I will address a threshold argument raised by the plaintiff.

18. The plaintiff argued that the plaintiff’s “choice of forum…should not be lightly displaced” and, later, that the choice “should be respected” (plaintiff’s submissions at [46]-[47]). To the extent this submission is to be understood as an argument that, having regard to the interests of justice more generally, the orders sought by the defendant should not be made, it is unremarkable. But to the extent that it sought to suggest that there was a principle or presumption in favour of the jurisdiction chosen by the plaintiff, I am unable to accept it. The authorities, in my view, make clear that the determination of what is the “more appropriate” forum for the determination of the proceedings is undertaken without any particular emphasis in favour of the selected forum; that is, there is no principle that the jurisdiction chosen by the plaintiff is not to be lightly overridden: see Barry at [87]; BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14] and [25].

The lex loci delicti

19. It was common ground that the place of the tort was Queensland. It follows that the law of Queensland, being the lex loci delicti, governs questions of substance: John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [87] and [102] (‘John Pfeiffer’). Laws characterised for choice of law purposes as substantive are ones that “bear upon the existence, extent or enforceability of remedies, rights and obligations”: John Pfeiffer at [102]. That includes “all questions about the kinds of damage, or amount of damages that may be recovered”: John Pfeiffer at [100]. The result is that the Civil Liability Act 2003 (Qld), and not the Civil Liability Act 2002 (NSW) (‘the CLA’), applies to the question of liability and the plaintiff’s entitlement to, and assessment of, damages.

20. The defendant submitted that this was a matter of some significance, arguing that it would “benefit” the parties – and be in the interests of justice – that the issues of liability and damages be determined not by this Court but by the Supreme Court of Queensland, given the “statutory regime which is idiosyncratic to the Queensland jurisdiction” (defendant’s submissions at [25], [27] and [28](a) and (b)).

21. Although it can be accepted that the Supreme Court of Queensland would inevitably have a high degree of familiarity and experience with the provisions within the Civil Liability Act 2003 (Qld), I do not assign this factor any significant weight for the following reasons.

22. First, to the extent that questions of liability are informed by provisions within the Civil Liability Act 2003 (Qld), those provisions have statutory analogues in the CLA. Thus, the standard of care for professionals is addressed in s 22 of the Civil Liability Act 2003 (Qld), and is in substantially similar terms to s 5O of the CLA. Questions of breach of duty, assuming these statutory provisions are not displaced by the engagement of s 22 of the Civil Liability Act 2003 (Qld), are addressed in s 9 of the Civil Liability Act 2003 (Qld), and is in substantially similar terms to s 5B of the CLA. And, in relation to causation, that matter is dealt with in s 11 of the Civil Liability Act 2003 (Qld), and is in substantially similar terms to s 5D of the CLA. Further, the authorities interpreting these provisions in the Civil Liability Act 2003 (Qld) do not suggest there is any difference, at least any significant difference, between those provisions and the way comparable provisions in the CLA have been interpreted: as to the standard of care for professionals, see Filmalter v Swenson [2025] QSC 32 at [218]-[220] (a decision that adopted and applied the NSW jurisprudence on s 5O of the CLA as directly applicable to s 22 of the Civil Liability Act 2003 (Qld)); as to breach of duty, see Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319; [2012] QCA 315 at [22]-[23]; as to causation, see Downes v Affinity Health Pty Ltd [2017] 1 Qd R 607; [2016] QCA 129 at [92].

23. Secondly, to the extent that there was any difference in terms of the assessment of damages between the Civil Liability Act 2003 (Qld) and the CLA, this was not the subject of any written submission by the defendant – the argument was simply that “the regime of damages fixed by Queensland law” applied (defendant’s submissions at [28](b)). During argument, Mr Kettle referred to the different assessment for general damages under the Civil Liability Act 2003 (Qld). Against that background, I make the following observations. In relation to the assessment of general damages for personal injury, this is determined by assessing an injury scale value, applying the Civil Liability Regulation 2014 (Qld): see ss 61 and 62 of the Civil Liability Act 2003 (Qld); Hunold v Twinn [2018] QCA 308 at [20]-[21]. That is a different approach to the assessment of damages for non-economic loss under s 16 of the CLA, which essentially requires a two-step process – namely, orthodox findings about non-economic loss and then a comparison to a most extreme case: Southgate v Waterford (1990) 21 NSWLR 427, 440; Lloyd v Thornbury [2019] NSWCA 154 at [162]. Nevertheless, the application of the Queensland statutory provisions relating to the assessment of general damages does not impress as being unduly technical. They were applied by Campbell J in Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559 at [168]-[182]. In any event, I consider that the quantification of the plaintiff’s general damages is quite unlikely to be the subject of any significant disputation between the parties given the diagnosis and, further, is quite likely to be a comparatively modest sum when compared to other heads of damage.

24. Further, in relation to other heads of damage, my assessment is that there is no significant or appreciable difference between the damages regimes. For example, damages for “economic loss”, would, subject to ss 54 and 55 of the Civil Liability Act 2003 (Qld), be assessed in the usual way – that is, by the plaintiff demonstrating loss of earning capacity that is or may be productive of loss: see Graham v Baker (1961) 106 CLR 340, 347; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3; [1995] HCA 5. In a case such as this, where the plaintiff’s injuries and disabilities are as I have earlier described, the issues about this head of damage are likely to be confined. As to the existence of differences between the statutory schemes relating to the assessment of damages relevant to this case, as I have earlier noted, the defendant did not raise any, or suggest that, if such differences exist, they were material.

25. Thirdly, to the extent the common law applies to aspects of the plaintiff’s claim, then there is a single common law of Australia: John Pfeiffer at [15]; Barry at [82].

26. Thus, I am unable to accept that the statutory regime is “idiosyncratic to the Queensland jurisdiction”, as was submitted. On the contrary, in my view, relevantly here, the respective civil liability schemes substantially mirror each other, and there is little to no discernible difference between the jurisprudence that has developed to supplement the relevant statutory provisions. I am satisfied that this Court is well-able to apply the Civil Liability Act 2003 (Qld). Independently of my analysis, it should be noted, my conclusion is consistent with the one reached by Garling J in Brook v Sommerville [2018] NSWSC 237 at [50].

19. The defendant also submitted that the applicability of the Civil Liability Act 2003 (Qld) to the proceedings was a relevant consideration, by reason of s 5(2)(ii)(B) of the Act, because the plaintiff’s claim was likely to give rise to matters arising under Queensland law (defendant’s submissions at [17]). Putting to one side that the submission was directed to a different provision to the one relied upon, as confirmed by Mr Kettle, the submission, in substance, is a restatement of the submissions about the applicability of the Civil Liability Act 2003 (Qld), which I have addressed above.

The balance of convenience to the parties

28. The defendant argued that the balance of convenience to the parties favours the Supreme Court of Queensland rather than this Court. In this respect, the defendant emphasised the likely location of witnesses – specifically, that “any lay witnesses required to be called in relation to liability are likely to practise and be resident in Queensland” (defendant’s submissions at [16]) and that the “likely witnesses on liability are likely to be Queensland practitioners” (defendant’s submissions at [28](d)).

29. The defendant’s written submissions did not identify the names of any of the medical practitioners (or “lay witnesses”) who might, even possibly, be required to give evidence on issues of liability, nor was there any evidence about their whereabouts at the present time. During submissions, Mr Kettle identified, from the antenatal and delivery records produced by the Hospital, the names of various medical staff and submitted, in effect, that there were a potentially large number of witnesses and, further, they could well be inconvenienced by the proceedings being in this Court, rather than in the Supreme Court of Queensland.

30. Given the generality of the submission, and the absence of evidence seeking to demonstrate, even in an appropriately preliminary way the materiality of any one of the persons identified from the clinical records referred to above, it is simply not possible to assign any meaningful weight to the argument.

31. The defendant, although noting that the plaintiff had qualified liability and damages experts that were largely NSW based, pointed out that the plaintiff’s expert obstetrician and gynaecologist, Dr Mike O’Connor AM, did not undertake “direct assessment” of the plaintiff, and that the paediatric neurologist qualified, Dr Michael Harbord, who did undertake an assessment of the plaintiff, was based in Adelaide, South Australia (defendant’s submissions at [23] and [24]). I do not consider the location of the plaintiff’s liability experts, of itself, to be of particular significance. However, it is apparent that, as I next explain, all the plaintiff’s experts – on liability and damages – are, with the exception of Dr Harbord, based in Sydney (or suburban Sydney).

32. The plaintiff’s qualified experts (and their specialties) are (Wills affidavit affirmed 5 March 2025, par 10):

1. Dr Ken Maclean – paediatrician and geneticist.

2. Joan Hacken – paediatric physiotherapist.

3. Dr Mark Sabaz – clinical neuropsychologist.

4. Dr Chris Rikard-Bell – paediatric psychiatrist.

5. Dr Sarah Starr – paediatric speech pathologist.

6. Dr Stephen Buckley – rehabilitation physician.

7. Susie Mullen – occupational therapist.

33. The plaintiff is, I accept, also receiving treatment from general practitioners in Warners Bay, NSW; a physiotherapist in Edgeworth, NSW; and an occupational therapist in Cardiff, NSW (Wills affidavit affirmed 5 March 2025, par 14). There is, thus, a possibility – which I assess, at the present time, as being modest – that one or more of these practitioners may need to give evidence.

34. As was confirmed by Mr Beale during submissions, at the present time, the only additional witnesses in the plaintiff’s case will be the plaintiff’s parents, with the exception of one possible further expert.

35. Thus, from the plaintiff’s perspective (and again putting to one side Dr Harbord), all witnesses in the plaintiff’s case are locally-based or proximate to Sydney.

36. The defendant has not, as yet, committed to whether it will qualify experts that are Sydney-based. Given the plaintiff’s age and his condition, and having regard to the nature of the damages that will be sought, it impresses as a distinct possibility that, irrespective of where the matter is to be litigated, some (in connection with causation and damages issues) will be Sydney-based.

37. As I have noted above, there was no evidence about the potential identity of any liability witnesses who may be required in the defendant’s case, their number or whereabouts. I am thus unable to make any findings about these matters, so as to inform my assessment of the natural forum for the resolution of the dispute.

38. The evidence from the plaintiff’s parents, which I accept, is that they are the principal carers of the plaintiff and that he is highly dependent upon each of them and the assistance they provide him across all aspects of his life (Susan, Page affidavit sworn 5 March 2025, pars 6-9; affidavit of Richard Page sworn 5 March 2025, pars 7 and 10). The evidence, which I also accept, is that stability and routine are particularly important to the plaintiff and that alterations to that routine can lead to the plaintiff becoming distressed and suffering severe anxiety (Richard Page affidavit sworn 5 March 2025, par 7). I regard these matters as contextually important, particularly given the absence of evidence from the defendant about potential witnesses, referred to above: the “justice referred to in s 5 is not disembodied, or divorced from practical reality”: Schultz at [15].

39. The fact that a claim is to be litigated will, irrespective of where it is adjudicated, involve a degree of disruption to the plaintiff. It is a little difficult at the present time to assess the nature and extent of the plaintiff’s involvement in the proceedings, but even allowing for that uncertainty there is, to my mind, little doubt that the degree of disruption to him, including any disruption to the care and assistance that he receives from his parents, would be appreciably less if the proceedings remained in this Court. This is an important consideration.

40. The defendant, perhaps recognising as much, submitted that any disruption to the plaintiff can and would “be minimised with the prospect of speedy determination of proceedings in Queensland” (defendant’s submissions at [28](c)). It may be accepted that prompt determination of the claim assists both parties, but whether that should be in Queensland or in New South Wales is the ultimate issue in this application. Further, to the extent that there was any evidence directed to whether a prompt determination was more likely to occur in one Court rather than the other, it favoured the determination of the plaintiff’s claim by this Court. It was the evidence of the plaintiff’s solicitor, who had experience in conducting medical negligence claims in this State and in Queensland, that “Queensland medical negligence matters take considerably longer to resolve, either by way of a settlement and/or trial, given the pre-court procedures which are required pursuant to the Personal Injuries Proceedings Act 2002 (Qld)”: Wills affidavit affirmed 5 March 2025, par 18.

41. This evidence was not challenged by cross-examination or evidence from the defendant’s solicitor, and I accept it.

42. There are other matters of convenience (or connecting factors) that should be noted, as follows. The plaintiff’s solicitors are based in Sydney (albeit that they have an office in “Queensland”, which was clarified in submissions to be Brisbane), and so too are the counsel retained to appear on his behalf. The defendant’s solicitors are based in Brisbane, as is the defendant’s insurer, but those solicitors have an office in Sydney. The defendant’s counsel, at least on the present application, is based in Sydney. These matters are not unimportant, but I do not attach much significance to them.

Procedural provisions: PIPA

43. The defendant also submitted that if the proceedings were transferred to the Supreme Court of Queensland then, upon the order being made, the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’) would apply, with the consequence that the “procedural provisions applicable…would necessarily apply, including compulsory conferences, which would be conducive to the refinement of the issues, and the speedy determination of the proceedings” (defendant’s submissions at [26]).

44. The parties accepted that, for choice of law purposes, the provisions of PIPA were procedural, such that they would only apply to the plaintiff’s claim if litigated in Queensland. That approach, I should observe, is consistent with authority: see Hamilton v Merck & Co Inc (2006) 66 NSWLR 48; [2006] NSWCA 55 at [102]-[104], [143]; Davies bhnf McRae v Body Corporate for the Phoenician [2016] NSWSC 973 at [23]-[24].

45. Chapter 2 of PIPA deals with “Claims”. The provisions within this Chapter deal with pre-court procedures – relevantly:

1. Claims procedures (Part 1, Division 1): within this Division are provisions relating to notification of claims (s 9) and particular provisions for notification of claims in medical negligence cases (s 9A); and requirements on a person to whom a claim is made to respond (s 12) and to attempt to resolve the claim (s 20).

2. Provisions for the notification of claims in relation to injuries to children arising out of medical treatment (Part 1, Division 1A): within this Division are provisions relating to notification of claims for damages in relation to injuries to children (s 20C) and related matters.

3. Obligations of the parties (Part 1, Division 2): within this Division are provisions relating to disclosure of information in order to assist the parties in assessing “liability and quantum in relation to a claim” (s 21). Subject to presently irrelevant exceptions, a claimant has a duty to provide documents and information to a respondent, and there is a corresponding duty on the respondent to provide documents and information to a claimant (ss 22 and 27).

4. Compulsory conferences (Part 1, Division 4): before “starting a proceeding in a court based on a claim, there must be” a compulsory conference – although the parties may, “for good reason, dispense with the compulsory conference” (ss 36(1) and (4)). When such a conference is held, “unless the party has a reasonable excuse” they must attend and “actively participate in an attempt to settle the claim” (s 38(6)).

46. I can readily accept that many personal injury cases would benefit from these pre-court procedures – notably, the claims settlement procedures – but I entertain considerable doubt about whether these procedures would necessarily benefit this case, given what I apprehend to be the prospect of a contest on liability and the potential quantum of the claim. The defendant, it should be noted, did not suggest a contrary appraisal of the matter. It is true that there are provisions in PIPA that relate to the disclosure of documents and information but, again, I am unpersuaded that there is any appreciable benefit in the application of those provisions in this case particularly as the plaintiff has prepared his case, having already had access to the records relating to his and his mother’s care whilst a patient of the Hospital. To be clear, I do not accept in this case that the application of PIPA would, as the defendant submitted, result in a “speedy determination” of the matter, given my assessment of the likely liability issues and the quantum of the claim and my acceptance of the evidence from the plaintiff’s solicitor about her experience with the pre-court procedures, and the delay associated with them, earlier referred to.

47. Having regard to the matters raised by the parties that were argued to inform whether transfer should occur, and the findings that I have made in connection with such matters, I am unpersuaded that it is in the interests of justice that the proceedings be determined by, and thus should be transferred to, the Supreme Court of Queensland.

Orders

48. For the above reasons, I make the following orders:

1. Order the defendant’s notice of motion filed 31 January 2025 be dismissed.

2. Order the defendant pay the plaintiff’s costs of and incidental to the notice of motion.

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Decision last updated: 03 April 2025