Tawil v Western Sydney Local Health District

[2012] NSWSC 891

Supreme Court

New South Wales

Case Title:

Tawil v Western Sydney Local Health District

Medium Neutral Citation:

[2012] NSWSC 891

Hearing Date(s):

27/07/2012

Decision Date:

27 July 2012

Jurisdiction:

Before:

Garling J

Decision:

(1) Order pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that proceedings numbered 2011/312928 in the Supreme Court of New South Wales be, and hereby are, transferred to the Supreme Court of Queensland.

(2) Order that the costs of this motion be costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE - whether Supreme Court of Queensland the more appropriate forum - injury occurred in Queensland - unlikely Queensland defendants could be joined - NSW defendant does not oppose - balance of convenience of parties and likely witnesses favour transfer - transfer to Supreme Court of Queensland

Legislation Cited:

Personal Injuries Proceedings Act 2002 (Qld)
Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW)

Cases Cited:

Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton LTD v Schultz [2004] HCA 61; (2004) 221 CLR 400

Texts Cited:

Category:

Procedural and other rulings

Parties:

Kallil Tawil (P)
Western Sydney Local Health District (D)

Representation

- Counsel:

Counsel:
Mr King-Scott (P)
Mr Fordham (D)

- Solicitors:

Solicitors:
Mr King-Scott (P)
Mr Fordham (D)

File number(s):

2011/312928

Publication Restriction:

EX TEMPORE JUDGMENT

Factual Background

1. On 17 December 2007, the plaintiff Kallil Tawil, whilst visiting Surfers Paradise in Queensland from his usual residence in Sydney, was seriously injured when he fell from a footpath onto oyster-covered rocks. He was initially treated at the Gold Coast Hospital and then by a general practitioner in the Surfers Paradise area.

2. Upon his return to Sydney on 22 December 2007, he required further treatment because his injuries were not healing as anticipated. He attended Westmead Hospital, for which the Western Sydney Local Health District is legally liable. Mr Tawil alleges that each of the two hospitals from which he received treatment, as well as the general practitioner in Queensland with whom he consulted, were negligent in and about their treatment of him, as a consequence of which he has suffered significant injury, loss and damage.

Procedural History

1. Mr Tawil intends to commence proceedings in Queensland against the State of Queensland which is responsible for the Gold Coast Hospital and the general practitioner. Presently, his claims are in the Pre-Court Procedure phase required by Part 1 of Chapter 2 of the Personal Injuries Proceedings Act 2002 (Qld).

2. Today, Mr Tawil moves by notice of motion for an order that these proceedings be transferred to the Supreme Court of Queensland so that all of his claims in negligence can be heard and determined by the same court. The defendant, Western Sydney Local Health District, does not oppose the order that the proceedings should be transferred to Queensland. It resists a consolidation of the proceedings with the Queensland proceedings, but accepts that the proceedings should be heard together and the evidence in one proceedings be the evidence in the other.

Should the proceedings be cross-vested?

1. This Court possesses the power to make an order cross-vesting these proceedings to Queensland. The power is to be found in section 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987. The test to be applied was that described by Street CJ in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 (at 714) when he said that the section:

   "... calls for what I might describe as a 'nuts and bolt' management decision as to which Court in the pursuit of the interests of justice is the more appropriate to hear and determine the substantive dispute."

2. This test was approved by the judgment of Gleeson CJ and McHugh and Heydon JJ in BHP Billiton Ltd v Schultz [2004] HCA 61, 221 CLR 400 at [12]. As they said at [13],

   "The Court is required by statute to ensure that the cases are heard in the forum dictated by the interests of justice."

3. In this case, the following factors can be identified as being relevant to a determination of the more appropriate forum:

   (a)the plaintiff was injured in Queensland and, so he claims, appropriately treated, at least initially in Queensland;

   (b)the substantive law of Queensland would apply to these circumstances, as would the regime of damages fixed by Queensland law;

   (c)in any proceedings in Queensland, the Western Sydney Local Health District is likely to be joined as a cross-defendant;

   (d)the sequence of the causes of the action and the nature of the damages claimed make it unlikely, on the basis of the material presently before this Court, that the Queensland defendants could be joined as a cross-defendant to the proceedings in this court;

   (e)the balance of convenience of the parties and the likely witnesses strongly favours the proceedings being heard in Queensland.

4. In those circumstances, I am well satisfied that the proceedings should be transferred to the Supreme Court of Queensland.

5. The defendant makes a submission as to how it would wish all of the proceedings in Queensland to be conducted. I decline to make any orders of a procedural kind for which it contends. This is a matter which is entirely for the Supreme Court of Queensland. It is inappropriate for this Court to express any view about any matter affecting the future management and hearing of the cases in Queensland.

Orders

1. I make the following orders:

   (1)Order pursuant to section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that proceedings numbered 2011/312928 in the Supreme Court of New South Wales be, and hereby are, transferred to the Supreme Court of Queensland.

   (2)Order that the costs of this motion be costs in the cause.

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