Stokes v State of Tasmania
[2003] VSC 10
•5 February 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No 7266 of 2001
| ANGIE STOKES | Plaintiff (Respondent) |
| v | |
| THE STATE OF TASMANIA | Defendant (Applicant) |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2003 | |
DATE OF JUDGMENT: | 5 February 2003 | |
CASE MAY BE CITED AS: | Stokes v The State of Tasmania | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 10 | |
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Practice and procedure – application to cross-vest proceeding to Supreme Court of Tasmania – claim for damages for medical negligence – plaintiff resident in Tasmania – impugned conduct in Tasmania – plaintiff choosing to bring proceeding in Victoria – Victorian solicitors – delay in bringing application – significance of delay in the particular case – application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Defendant | Mr M.G.R. Gronow | Herbert Geer & Rundle |
| For the Respondent/Plaintiff | Mr A.W. Sandbach RFD | Slater & Gordon |
HIS HONOUR:
Before me is an application by the defendant, the State of Tasmania, to cross-vest this proceeding to the Supreme Court of Tasmania. The proceeding was commenced by writ filed 23 August 2001. The circumstances giving rise to the proceeding are set out in the judgment of Beach, J. in an earlier application in this matter: Stokes v. The State of Tasmania[1].
[1][2002] VSC 88 at [3]-[10].
The burden of the matter is that the plaintiff gave birth to a daughter on 21 August 1998. On 25 August her condition was such that she was admitted to the North-West Private Hospital in Tasmania. On 12 September she was admitted to the North-West Regional Hospital in Tasmania. She remained there until 19 September. Then she was discharged. She was re-admitted on 20 September. On 24 September she developed hypokalaemia and was commenced on intravenous potassium replacement. She alleges that her potassium levels were correctly maintained until about 28 September, but that thereafter her potassium levels were not monitored, they fell to a low level, and on 30 September she suffered cardiac arrest. It is her case, and there is opinion to support it, that the low potassium level was a major factor in precipitating her cardiac arrest. On 8 October she was transferred to the Royal Melbourne Hospital. She underwent treatment there for a week. Her claim against the defendant is based upon her treatment at the North-West Regional Hospital in Tasmania, a hospital conducted and controlled by the defendant, in the period 12 September to 30 September, but particularly, I should think, in the period 28 September to 30 September.
The plaintiff resides in Tasmania. She resided there at the time of the critical events. It is not apt to speak of the State of Tasmania residing in that State, but the persons whom the plaintiff will no doubt seek to blame for what befell her, it being said that their conduct fell short of the requisite professional standards of care, are persons who, at least in 1998, resided and worked in Tasmania.
The plaintiff consulted her present solicitors, who practise in this State but not in Tasmania, in December 1999. It was not until August 2001 that a writ was filed in this court which - as it turned out, incorrectly - named as defendant Healthscope Ltd, trading as North-West Private Hospital. The error only became apparent in the latter part of October 2001 when Healthscope filed its defence, denying, inter alia, that it conducted the hospital to which the writ referred and denying that the plaintiff had been admitted to such hospital at any pertinent time.
The solicitors realised their mistake. They made an ex parte application to a Master for leave to substitute the State of Tasmania as the defendant. The Master acceded to that application and an amended writ and statement of claim were prepared, filed and served. That happened, as I understand it, in about mid-November 2001.
The defendant filed a summons on 17 December 2001. It sought leave to appeal from the orders made by the Master on 1 November, that is, the orders substituting it as the defendant in lieu of Healthscope. An affidavit was sworn by Mr Steven Grant on behalf of the defendant. In part he addressed in his affidavit the delay in bringing the appeal from the Master. He said that the firm of which he is an associate did not receive the amended writ and statement of claim until 22 November, and that he received instructions to pursue an appeal against the Master’s order on 6 December. He went on to say, at paragraph 16: “The need to consider issues of jurisdiction with regard to this matter, particularly the applicability of cross vesting and/or Tasmanian legislation further was necessary prior to the application for an appeal.” The appeal, as it turns out, did not proceed. I was told from the Bar table today that the matter was resolved, the appeal being abandoned and the parties paying their own costs.
The proceeding having been commenced naming a wrong defendant, the three-year limitation period applicable in Tasmania had expired before the error was discovered and corrected. That led on to the plaintiff bringing an application to extend time pursuant to s. 5 of the Limitations of Actions Act 1974 (Tas.) The summons in that matter was filed on 20 February 2002. The matter came on for hearing before Beach, J. on 20 March. On 4 April his Honour made an order extending time. There was no appeal from that order. Thereafter, as I understand it, directions were given for interlocutory steps and some, but by no means all of them, have been taken. Additionally, the plaintiff’s solicitors arranged for the plaintiff to be examined for medico-legal purposes. That took place in this State. There the matter stood until 9 December last year, when the defendant filed the summons seeking cross vesting of this proceeding which is now before me. An affidavit in support of that application, sworn by Mr Grant, was filed on 23 January.
Today, Mr Gronow of counsel for the applicant made these points, principally, in support of his client’s application. Accepting that the case was one in which reliance must be placed on s. 5(2)(b)(iii) of the cross vesting legislation, and that an obligation of persuasion lay upon his client, he submitted that this was a Tasmanian case. The cause of action arose in Tasmania; that is where the negligent treatment occurred; that is where some injury was suffered. Next, Mr Gronow submitted, the plaintiff resides and has always resided in Tasmania, and so, at least in substance, does the defendant. He submitted that the question whether there was professional negligence is one better gauged by a local tribunal more closely aware of local practice and demands imposed on practitioners. The case was one, he said, where the majority of factual witnesses were Tasmanian. Upon the question of the mode of trial, he informed me that either party may have trial by jury in a case such as this in Tasmania. As to the plaintiff’s choice of medical experts, that matter, he submitted, could not be decisive for the plaintiff. As for the plaintiff’s choice of solicitors, he submitted that this should not be determinative. Even if there were a lack of relevant professional expertise in Tasmania, the plaintiff’s solicitors could always act through an agent. He accepted that there had been delay but submitted that it was not serious; interlocutory steps were incomplete; moreover, this was not a case where delay had occasioned prejudice to the plaintiff. He formally committed his client to not re-agitate the limitation defence even if it could be open, in the event that the proceeding was cross-vested. The case was one, he said, where travel from one State to the other would impose no particular burden. In all, Mr Gronow submitted that Tasmania was clearly the more appropriate forum for this proceeding.
Mr Sandbach for the plaintiff accepted that this application is one in which the interests of justice are the central consideration. He submitted that the key question was whether the alleged failure to monitor the plaintiff’s potassium levels showed a want of proper care. There was then the factual question whether there was a causal link between the depressed potassium level and the plaintiff’s cardiac arrest. He submitted that those questions were best answered in Melbourne, where there is a reservoir of pertinent medical expertise. He next submitted that the defendant has not had the plaintiff examined for medico-legal purposes. There would be no difficulty about the defendant engaging a Melbourne expert. He submitted that the plaintiff wishes to have the proceeding heard in Victoria. That must be accorded due weight. The plaintiff’s decision to seek to litigate in Victoria was not precipitate. He argued that it would be more expensive for her to litigate her claim in Tasmania. Even if she retained her present solicitors, they would need to engage agents; and it could not be assumed that a Tasmanian court would allow the costs of Victorian solicitors and Tasmanian agents. The law, Mr Sandbach submitted, would not be relevantly different whether the case was tried in this State or in Tasmania; what is applicable is the common law of Australia. Mr Sandbach placed some reliance upon the plaintiff’s choice of suitably experienced solicitors practising in this State. He placed considerable reliance upon delay, pointing out that the defendant had evidently addressed the question of cross vesting before, or in, December 2001, yet nothing had been done about the matter until December 2002, and in that time there had not only been the extension application but directions had been given and medico-legal examination held. Mr Sandbach submitted the plaintiff was entitled to and did act on the basis that no cross vesting issue was alive, that issue having been flagged in Mr Grant’s affidavit of 3 January 2002 and nothing having happened about that matter for nearly twelve months.
In my opinion, this application is a very close-run thing. There are, I think, substantial reasons why Tasmania might be regarded as the more appropriate forum for the conduct of this proceeding. Mr Gronow articulated them clearly. As against that, there are the matters to which Mr Sandbach directed my attention, and looming large amongst them is the question of delay – the circumstances attending the delay and what transpired in the period of delay. This is not a case where the defendant belatedly gave consideration to the cross vesting issue. It is a case where the defendant gave consideration to that issue in late 2001, within a few months of the writ being issued, said that it had done so in an affidavit, did nothing about it, and let the plaintiff proceed with her case for another twelve months before raising the issue: twelve months within which time the matter became bedded down in this State, not only by the extension application but by the engagement of a medico-legal expert, and by the giving of directions for interlocutory steps. The plaintiff was entitled, I think, as were her solicitors, to proceed on the footing that cross vesting was not an issue. The plaintiff did not have to consider over a twelve-month period what the implications might be on the costs front if cross vesting occurred. Meanwhile, the case was running on.
The issue of delay and its particular importance in this case has weighed with me. It is by no means the only consideration, because other matters raised by Mr Sandbach – the plaintiff’s right to choose the forum in which she proceeds, the fact that there is nothing special about the applicable law, the fact that she has engaged experienced solicitors who practise in this State but not in Tasmania – are matters to be brought into the mix. But the case is not one in which the solicitors have a particular skill, as for example with asbestos litigation or blood supply litigation. Again, it may be accepted that the case is not one in which, if it were transferred, the plaintiff would be caught by a limitation provision which would not apply if the matter continued here. The fact that a jury trial is available in Tasmania also tends to negate prejudice.
As I said at the outset, this is a very close-run thing, but in the end I am not persuaded that the proceeding ought be cross-vested. I dismiss the application.
Upon the question of costs, varying orders have been made over time. They reflect the particular circumstances of the individual case, and that is what costs orders should do. In this particular proceeding I order that costs be costs in the cause.
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