Fisher v Marin and Women's & Children's Hospital, Adelaide [2003] NSWSC 530

New South Wales Supreme Court

CITATION : Fisher v Marin and Women's & Children's Hospital, Adelaide [2003] NSWSC 530 HEARING DATE(S) : 30 May 2003 JUDGMENT DATE : 18 June 2003

JUDGMENT OF : Sully J at 1 DECISION : Notice of Motion dismissed with costs

LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) CASES CITED : Broken Hill Proprietary Co Ltd & ors v Zunic (2001) 22 NSWCCR 92 PARTIES : Lauren Fisher by her Tutor Janice Fisher v Raymond Denis Marin & Women's and Children's Hospital, Adelaide FILE NUMBER(S) : SC 20247/02 A. Sullivan QC - Applicant and 1st defendant. COUNSEL : M. Nicolle/W. Hawson (solicitors) - Applicant and 2nd defendant R. O'Keefe - Respondent and plaintiff Blake Dawson Waldron - Applicant and 1st defendant SOLICITORS : Ebsworth & Ebsworth - Applicant and 2nd defendant Charlton Shearman - Respondent and plaintiff

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

18 June 2003

20247/02 - LAUREN FISHER by her Tutor JANICE FISHER v RAYMOND DENIS MARIN & WOMEN'S AND CHILDREN'S HOSPITAL, ADELAIDE

JUDGMENT 1 HIS HONOUR: There are pending in the Court principal proceedings numbered 020247/2002 and instituted by a Statement of Claim filed on 29 May 2002. The plaintiff is Lauren Fisher, a young woman now aged 17 years. The plaintiff is a "disable person" as defined in SCR Pt 1 R 8; and she sues accordingly by her mother, Mrs Janice Fisher as Tutor. There are two defendants. The first defendant is Dr. Raymond Denis Marin, a legally qualified medical practitioner specialising in obstetrics and gynaecology. The second defendant is the Women's and Children's Hospital, Adelaide. 2 The plaintiff's cause of action is professional negligence. The Statement of Claim contains the following succinct definition of the plaintiff's essential complaints: "As a result of the manner in which the first defendant and servants or agents of the hospital conducted the labour and the delivery of the plaintiff, and reasonable delay occurred in effecting emergency caesarean section delivery of the plaintiff and as a consequence, the plaintiff suffered hypoxic brain damage, hypoxic ischaemic encephalopathy and subsequently, she developed Cerebral Palsy." 3 The principal proceedings are being case managed in the Professional Negligence List that is maintained within the Common Law Division of this Court. 4 By a Notice of Motion filed on 23 December 2002 the first defendant seeks the following relief: "1. That Supreme Court proceedings No. 020247 of 2002 be transferred to the Supreme Court of South Australia pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act (NSW) 1987 and section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act (SA) 1987. 2. That the Court give appropriate directions. 3. That the costs of the motion be costs in the cause. 4. Any further or other order that this Court considers appropriate." 5 The plaintiff opposes the making of, in particular, the order claimed in paragraph 1 of Notice of Motion. The second defendant was separately represented at the hearing of the Notice of Motion; but the active participation of the second defendant was limited to a general indication of support of the claims of the first defendant; and to a general adoption of the evidence led, and of the submissions made, by the first defendant. 6 Before canvassing the evidence given, both orally and by affidavit, at the hearing of the Notice of Motion, it is useful to note the thrust of the arguments advanced by the first defendant in support of the claims made in the Notice of Motion. There are, essentially, two basic propositions that are thus advanced. One is that the plaintiff will not be, in any significant way if at all, worse off if the final hearing takes place in Adelaide rather than in Sydney. The other is that, the personal convenience of the plaintiff put to one side, every other relevant consideration favours the hearing in the Supreme Court of South Australia rather than in this Court. The latter argument is put more particularly in the first defendant's written submissions, and as follows: "11. The place of the alleged tort occurred in Adelaide, South Australia. 12. Rogers AJA in Bankinvest and Mason CJ, Dean, Dawson, Toohey and Gaudron JJ in Voth (at 570) considered that in professional negligence matters, the determination of negligence and the professional standards applicable is better gauged by a local tribunal more closely aware of local practice and the demands imposed on those professionals. 13. Determining what was reasonable practice in the management of women in labour and delivery in South Australia in 1985 will be important to the consideration of the issue of liability. Therefore, determination of what was reasonable practice would be best gauged in South Australia. 14. The first defendant is likely to engage South Australian expert witnesses to establish what was reasonable practice in South Australia in 1985 in light of local hospital protocols, local practice and standards of the time. 15. If such experts were called to give evidence there would be considerable expense in them travelling from Adelaide to Sydney for that purpose. 16. Substantial evidence will need to be obtained from medical practitioners and health professionals based in Adelaide as to the plaintiff's past treatment in order to assess the plaintiff's entitlement to damages, if any. If such experts are required to give evidence there will be considerable expense in them travelling from Adelaide to Sydney for that purpose. The plaintiff has been receiving medical and allied treatment in Adelaide from the time of her birth until late 1999, a period of 15 years. 17. Out of the witnesses considered by the first defendant to be highly likely to be called to give evidence at the hearing of this matter, five of the eight reside in South Australia, one resides in London, one resides in New South Wales and it is unknown where the one remaining witness resides. 18. Of the witnesses considered likely to be called to give evidence on behalf of the first defendant, nine witnesses reside in South Australia and it is unknown where the remaining five witnesses currently reside. 19. A clear majority of the possible witnesses identified by he first defendant continue to reside in South Australia." 7 In Broken Hill Proprietary Co Ltd & ors v Zunic (2001) 22 NSWCCR 92, I had occasion to consider the operation of sections 5 and 8 of the Jurisdiction of Court (Cross-Vesting) Act 1987 (NSW). Those proceedings concerned an application to transfer a matter from the Dust Diseases Tribunal of New South Wales into the Supreme Court of South Australia; and I acknowledge at once that, to that extent, the context of that application differs from the context of the present application. I think, nevertheless, that the particular factors to which I gave consideration in Zunic are, mutatis mutandis, the relevant factors for present purposes. In striking a final balance of what the legislation describes as "the interests of justice", I propose to take guidance from the principles that are discussed in paragraphs 11 and 12 of the Zunic judgment.