Tester v Trueman - [2020] NSWSC 756

Supreme Court

New South Wales

Medium Neutral Citation: Tester v Trueman [2020] NSWSC 756
Hearing dates: 15 June 2020
Date of orders: 15 June 2020
Decision date: 17 June 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) Pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) this proceeding is transferred to the Federal Court of Australia.

(2) The proceeding is to be listed for directions before Justice Lee (or whichever Judge in the Federal Court is managing the Ethicon matters) on a date to be notified to the parties in the next two to three weeks.
(3) The costs of this notice of motion are to be costs in the cause.
Catchwords: CIVIL PROCEDURE — cross-vesting — transfer to Federal Court — relevant factors — plaintiff a group member of class action in the Federal Court — interests of justice — whether it is “more appropriate” that proceedings be determined by the Federal Court — application granted
Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Cases Cited: Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440
West v Rane (No. 2) [2020] FCA 616
Category: Procedural and other rulings
Parties: Nicola Tester (Plaintiff)
Geoffrey Bruce Trueman (Defendant)
Representation:
Counsel:
N Oreb (Defendant)
Solicitors:
AJB Stevens Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2018/85264
Publication restriction: Nil

Judgment

The plaintiff, Nicola Tester, seeks an order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (“the Act”) that this proceeding be transferred to the Federal Court of Australia.
The defendant consents to the proposed transfer.
Ms Tester commenced proceedings by statement of claim on 16 March 2018 arising out of operative treatment provided by the defendant for her gynaecological symptoms. As part of this treatment, the defendant utilised a sub-urethral sling which he knew, or ought to have known, would likely cause serious complications. Ms Tester sued the defendant in tort and breach of contract as well as for breaches of the Australian Consumer Law.
In support of her application, Ms Tester relies upon an affidavit of her solicitor, Nicolette Tyras, sworn 12 June 2020. Ms Tyras deposes to the fact that Ms Tester is a group member of the Gill and Ors v Ethicon SarI (NSD 1590 of 2012), “the Ethicon class action”, in the Federal Court of Australia, and states that:

“Similar damages are claimed in this proceeding on behalf of the plaintiff as in the Ethicon class action.”

This assertion perhaps does not fully reflect the likely subtleties of the position. Some clarity was obtained from the written submissions helpfully provided by counsel for the defendant, Ms Oreb. Ms Tyras indicated that the plaintiff also relies upon, and endorses, the submissions of Ms Oreb.
It seems that the position accepted between the parties is as follows:

“On 16 March 2020 the applicants in a significant number of Federal Court proceedings involving Ethicon served a schedule entitled “Commenced Proceedings”. The schedule set out which of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tester v Trueman

Details

AGLC: Tester v Trueman [2020] NSWSC 756
Case: [2020] NSWSC 756
Decision Date: 17 June 2020

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Tester v Trueman was heard by Chief Justice Gilmour. The plaintiff, a member of a class in a Federal Court class action, brought proceedings against the defendant in the Supreme Court of Queensland. The plaintiff sought to have the proceedings transferred to the Federal Court, arguing that it was more appropriate for the case to be determined by the Federal Court due to its connection with the ongoing class action.

The legal issue before the court was whether the proceedings should be transferred to the Federal Court under section 38 of the Judiciary Act 1903. The court had to consider the relevant factors, including whether the plaintiff was a group member of a class action in the Federal Court, and whether it was in the interests of justice for the proceedings to be transferred. The court was required to determine if it was more appropriate for the Federal Court to decide the case.

The court found that the plaintiff was a member of a class in a Federal Court class action, and that the proceedings were connected to that class action. The court considered the interests of justice and determined that it was more appropriate for the Federal Court to decide the case. The court noted the efficiency and consistency in having all matters related to the class action determined by the same court. Accordingly, the application for the transfer of the proceedings to the Federal Court was granted.

The court ordered that the proceedings be transferred to the Federal Court, with the plaintiff to bear the costs of the application. The court recognised the importance of maintaining uniformity in the determination of matters related to class actions and the benefits of centralising such proceedings in the Federal Court.

Orders