Pagliaro v Northeast Health Wangaratta (Ruling)

[2023] VCC 24

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

Medical List

Case No. CI-21-02871

DENISE PAGLIARO	Plaintiff
NORTHEAST HEALTH WANGARATTA	Defendant

---

JUDGE:	HIS HONOUR JUDGE CLARK
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2023
DATE OF RULING:	31 January 2023
CASE MAY BE CITED AS:	Pagliaro v Northeast Health Wangaratta (Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VCC 24

RULING
---

Subject:PRACTICE AND PROCEDURE

Catchwords: Circuit trials – proper venue – change of venue – considerations – r5.08 and r47.01 County Court Civil Procedure Rules 2018 (Vic)

Legislation Cited:      Civil Procedure Act 2010 (Vic), s47, s49; County Court Civil Procedure Rules 2018 (Vic), r5.08, r47.01

Cases Cited:McCready v Bendigo Health [2014] VSC 565; Wederell v Ballarat Health Services [2014] VSC 636; Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44

Ruling:  The proceeding be transferred to the Civil Circuit List in Wangaratta.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Carbone (Solicitor)	Carbone Lawyers Australia Pty Ltd
For the Defendant	Ms L Aspley (Solicitor)	MinterEllison

HIS HONOUR:

Introduction

1Ms Pagliaro commenced proceedings on 13 July 2021 in the Melbourne Registry of the County Court against Northeast Health Wangaratta. 

2Ms Pagliaro’s claim relates to alleged negligent treatment provided to her at the Northeast Health Wangaratta Hospital (“the hospital”), which is located in Green Street, Wangaratta. 

3Ms Pagliaro resides near Wangaratta.

4The matter came before the Court on 18 January 2023 following a directions hearing on 23 November 2022.[1]  At the time of the 23 November 2022 directions hearing, the Court raised concerns about the matter being listed in Melbourne.  On the face of it, this is a “Wangaratta case”. 

[1]Normally an application such as this would be brought on by one of the parties. Here, the Court acted under s47 and/or s49 of the Civil Procedure Act 2010 (Vic) and Rule 47.01 of the County Court Civil Procedure Rules 2018 (Vic) (“the Rules”).

5On 23 November 2022, the Court requested the solicitor for the plaintiff, Mr Carbone, and the solicitor for the defendant, Ms Apsley, to:

(a)   consider whether the matter ought properly be transferred to the Wangaratta List;

(b)   seek their clients’ instructions;

(c)   on 18 January 2023, be in a position to make submissions in respect to the appropriate venue for the hearing of this matter.

6At the time of the 18 January 2023 hearing, neither party had provided to the Court any affidavit material or written submissions in respect to the issues to be considered.

7At the 18 January 2023 directions hearing, Mr Carbone submitted that the matter ought remain in the Melbourne List for hearing on 1 June 2023.  Mr Carbone relied upon two grounds:

(a)   that the vacation of the 1 June 2023 hearing date would likely lead to an undesirable delay;

(b)   the inconvenience to both medico-legal experts and the plaintiff’s treating medical practitioners who reside in Melbourne.  (Mr Carbone indicated there were two orthopaedic surgeons who had assessed Ms Pagliaro and she had an appointment to see a pain specialist).

8Mr Carbone advised the Court there were potentially six medico-legal witnesses for the plaintiff and three for the defendant who resided in Melbourne.

9Mr Carbone conceded that there were numerous treating medical practitioners who were located in Wangaratta or the nearby cities of Benalla and Shepparton. 

10Mr Carbone did not take me to any reason why a fair and impartial trial could not be had in Wangaratta.

11Ms Apsley advised the Court that her client preferred the retention the 1 June 2023 hearing date in Melbourne.  Like Mr Carbone, she did not take me to any reason why a fair and impartial trial could not be had in Wangaratta.  Her only concern was potential delay.

Background facts

12Ms Pagliaro is now aged fifty-five years.  According to her Further Amended Statement of Claim, on 21 December 2022, she injured her left knee while attempting to jump over a trench in her backyard.  She presented to the Accident and Emergency Department at the hospital shortly after. 

13In short compass, Ms Pagliaro alleges that the treatment which she received on the day of her accident and over the following months was in breach of what represented reasonable care.  She says as a result, she has been left with a permanent impairment to her left leg.  Ms Pagliaro seeks damages for pain and suffering and economic loss.

14Ms Pagliaro’s solicitor’s office is located in the Melbourne CBD.  The solicitors retained on behalf of Northeast Health also have their offices based in the Melbourne CBD.

15The matter is listed for hearing at the County Court in Melbourne on 1 June 2023 as a jury trial.  There is an estimate of ten to twelve days.

The principles

16The relevant principles that are to be applied in an application of this nature have been set out by J Forrest J in McCready v Bendigo Health[2] and Wederell v Ballarat Health Services.[3]  The Court is greatly assisted by the observations made by his Honour in these matters.

[2][2014] VSC 565 (“McCready”)

[3][2014] VSC 636

17The default position is that the County Court Civil Procedure Rules permit a plaintiff to elect the venue; however, as observed by J Forrest J, that choice will be displaced if other considerations satisfy a court that the chosen venue is inappropriate.  The primary factor in determining the appropriate venue is the balance of convenience.  As was noted by J Forrest J in McCready, this consideration was emphasised by Hunt J in Hansen v Border Morning Mail Pty Ltd.[4]  His Honour said:

“This consideration was emphasised by Hunt J in Hansen v Border Morning Mail Pty Ltd.  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.’”[5] 

[4](1987) 9 NSWLR 44 (“Hansen”)

[5]Hansen at paragraphs [46]-[47]

18In this matter, neither party suggested that a fair trial could not be obtained in Wangaratta.  As such, the overriding consideration for where this trial should be listed must be what is convenient for Ms Pagliaro and Northeast Health.

19As I have previously noted, this matter, on the face of it, is a “Wangaratta case”.  This Court is a court for all Victorians.  As J Forrest J said:

“… 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.”[6] 

[6]McCready at paragraph [15]

Application to this case

20The balance of convenience and the interests of justice clearly point to this trial being heard in Wangaratta, not Melbourne.

(a)     Inconvenience to the litigants and lay witnesses

21Ms Pagliaro, in her Further Amended Statement of Claim, alleges significant injury to her left knee joint with consequential pain and dysfunction to her left leg.  She alleges nerve injury with left foot drop, together with the development of Chronic Regional Pain Syndrome.  She alleges her capacity to work has been impacted and she has been reliant upon others for care.  This all tends to her relocation to Melbourne for the duration of a ten to twelve day trial being very disruptive and inconvenient. 

22Given the nature of Ms Pagliaro’s claim, it is likely that members of her family and friends be called to give evidence on her behalf.  To travel to Melbourne would be a significant imposition on them, both in terms of inconvenience and cost.

(b)    Local medical practitioners and hospital staff

23The Court was advised that many of Ms Pagliaro’s treating medical practitioners reside in either Wangaratta or the nearby cities of Benalla and Shepparton. 

24The Court was not advised of those witnesses which the defendant would be calling from the hospital.  However, given the extensive list of medical treatment provided to Ms Pagliaro outlined in the pleadings and relied upon by her, there are likely to be many medical practitioners who were involved in her care.  It is, therefore, reasonable to anticipate that there are likely to be many local medical practitioners and, perhaps, other hospital staff, who may be called to give evidence.

25Regional medical practitioners and hospitals face well-publicised staff and resource shortages.  They are, no doubt, all very busy people.  For those professionals to leave regional Victoria and attend Melbourne with the associated uncertainty of when they are to be called to give evidence, places a significant imposition and potential strain not only on those individuals but also on the provision of local medical services. 

26The welfare of the patients at the hospital and indeed, the local North Eastern Victorian community, ought not unnecessarily be compromised.

27I appreciate that there are two Melbourne-based orthopaedic surgeons and one pain management specialist who may be placed at the disadvantage of having to travel to Wangaratta.  However, I gain comfort by the Court’s long experience that Melbourne doctors, if they are indeed required to attend court, can be accommodated on circuit.

(c)     Expert witnesses

28Mr Carbone identified that there may be up to nine expert witnesses who are based in Melbourne who could give evidence.  Medico-legal experts accept instructions in matters knowing where the parties reside/are located.  They accept instructions well knowing that they may have to attend court to give evidence.  That they may have to attend Wangaratta, or indeed other regional centres, “goes with the territory”. 

29Unlike treating medical practitioners and many of the lay witnesses, medico-legal experts have the option of involving themselves in the litigious process or not.  Their convenience ought not take precedence, unless there are exceptional circumstances, over the parties, the local treating medical practitioners and the lay witnesses. 

30For completeness, the Court notes that no evidence was adduced that any of the expert witnesses were reticent about travelling to Wangaratta.

(d)    Inconvenience to the solicitors and/or counsel

31On 18 January 2023, neither party raised the inconvenience to the solicitors and counsel retained.  However, this issue had been raised by the parties on 23 November 2023.  It is therefore appropriate that I address it.

32As noted by J Forrest J in both McCready and Wederell, while it would undoubtedly be more convenient for counsel and their instructing solicitors to conduct the case in Melbourne, that is not the test. 

33Proceedings involving Melbourne solicitors and Melbourne-based counsel, have been conducted in regional centres for over a century.  Absent exceptional circumstances, the residence of counsel and the instructing solicitors in Melbourne, ought not be determinative of where a matter is listed for hearing.

(e)     Community participation

34Again, I adopt the observations made by J Forrest J in McCready and Wederell.  The Court agrees with his Honour’s observations that it is highly desirable that the residents of regional centres have the opportunity to watch and, possibly participate in a trial involving the treatment of a local resident at their local hospital.[7]  Given the events giving rise to this claim occurred in Wangaratta, that is the natural forum for the case.

[7]Wederell v Ballarat Health Services (supra) at paragraph [26]

35While the selection of the jury may require a greater pool than would normally be the case, this is not an insurmountable problem.  Justice should be seen to be done in regional centres as well as in metropolitan Melbourne.

(f)     Delay

36This matter is listed in Melbourne on 1 June 2023.  The parties quite rightly expressed concern in respect to potential delay should the matter be transferred.  There is a civil circuit commencing in Wangaratta on 28 August 2023.  While the relisting of the matter at this circuit does put the hearing back just short of three months, when balancing the other competing issues, I do not consider this ought be an impediment to the transfer of the matter.  Should the matter not be reached at that circuit, there is a further circuit commencing 8 November 2023.  If the matter were not reached in Melbourne on 1 June 2023, there would be a possibility that the matter would not be relisted inside of twelve months.

Conclusion

37This case should be tried at the Wangaratta Court.  The claim arose in that city and there would be significant inconvenience to the plaintiff Ms Pagliaro and Northeast Health if the case were to remain in Melbourne.

38I am not satisfied that the potential delay in the hearing of the matter or the inconvenience to the Melbourne-based treating practitioners and medico-legal witnesses justifies leaving the matter in Melbourne.

39As I indicated to the parties at the directions hearing on 18 January 2023, I propose to make the following orders:

(1)The trial set down for 1 June 2023 in Melbourne be vacated.      

(2)The proceeding be transferred to the Civil Circuit List to be heard in Wangaratta.

(3) The proceeding be listed at the circuit commencing 28 August 2023.

(4)Costs of this hearing be costs in the cause.

- - -