Callaghan v Montes [2019] NSWSC 1527

Supreme Court New South Wales

Medium Neutral Citation: Callaghan v Montes [2019] NSWSC 1527 Hearing dates: 5 November 2019 Date of orders: 05 November 2019 Decision date: 05 November 2019 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW) and s 8(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), proceedings No. 2018/156665 in the District Court of New South Wales are removed to the Supreme Court of New South Wales for a determination of appropriate jurisdiction. 2. Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), these proceedings are transferred to the Supreme Court of Victoria. 3. Costs to be costs in the cause. Catchwords: CIVIL PROCEDURE - cross-vesting - transfer to other Supreme Court – medical negligence claim – both plaintiff and defendant residing in Victoria – cross-vesting order made Legislation Cited: Civil Procedure Act 2005 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Cases Cited: Pilbara Ports Authority v Ashton [2019] NSWSC 1488 Category: Principal judgment Parties: Amy Callaghan (Plaintiff) Mark Lawrence (Second Defendant) Representation: Counsel: S Maybury (Plaintiff) M Swan (Second Defendant)

Solicitors: Monaco Solicitors (Plaintiff) Avant Law Pty Ltd (Second Defendant) File Number(s): 2019/309076

Judgment 1. The plaintiff commenced proceedings in the District Court of New South Wales on 18 May 2018 against her general practitioner, who was named as the only defendant in the proceedings. The claim was one for medical negligence. 2. The first defendant carried on practice in New Farm in Brisbane. The plaintiff lived in Victoria. Subsequently, amended proceedings were filed adding a second defendant, who was a specialist, to whom the plaintiff had been referred. The second defendant carried on his medical practice in Bentleigh, Victoria. The plaintiff, subsequently, discontinued the proceedings against the first defendant, the general practitioner. 3. The plaintiff now seeks that the proceedings be transferred to this court from the District Court and, thereafter, cross-vested to the Supreme Court of Victoria under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). It is anticipated that when the proceedings are in the Supreme Court of Victoria, if those orders are made, that the proceedings will then be removed into the County Court of Victoria, which I am told will have jurisdiction to hear the claim. 4. The principles associated with cross-vesting of proceedings have been well summarised by Lonergan J in Pilbara Ports Authority v Ashton [2019] NSWSC 1488 at [12]. 5. The evidence discloses that the claim now made concerns two parties both of whom reside in Victoria and, in the case of the defendant, carries on his medical practice in Victoria where the plaintiff was treated. The matter will be decided according to the law of Victoria. Although there are some experts who have been engaged in New South Wales during the course of the proceedings, the majority of the witnesses in the case are located in Victoria. 6. The present defendant, that is the former second defendant, consents to the orders that the plaintiff seeks. 7. I am entirely satisfied that the interests of justice require that the proceedings be heard in Victoria. In order for the proceedings to be cross-vested, it is necessary for these proceedings to be removed into this court from the District Court. 8. For those reasons, I make orders in terms of paragraphs 1 and 2 of the summons filed on 3 October 2019. 9. I note that the parties agree that costs of this summons are to be costs in the cause.