The decision of Chen J in Page examined questions in relation to the interests of justice when contemplating a transfer of a medical negligence claim from the New South Wales Supreme Court to the Queensland Supreme Court. 

Key issues included the application of Queensland civil liability statute by a New South Wales Court and whether the pre-court procedures under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) would assist in the resolution of the case. 

The Plaintiff was a 13 year old boy who, by his parents, commenced proceedings against the Health District that managed Gold Coast University Hospital, Gold Coast Hospital and Health Service (GCHHS). The Plaintiff had been diagnosed with severe cognitive, physical and developmental disabilities including hypoxic brain injury and cerebral palsy. The Plaintiff alleged that the hospital failed to exercise reasonable care and skill when providing medical services to his mother throughout her pregnancy and during his birth, resulting in the development of his condition. 

GCHHS applied to the Supreme Court of New South Wales to have the proceedings moved from the Supreme Court of New South Wales to the Supreme Court of Queensland, the jurisdiction of the alleged events and location of the hospital. 

The Plaintiff and his parents reside in New South Wales and opposed the application. 

Moving (or cross-vesting) proceedings is governed by section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), which identifies a key consideration in whether a matter should be cross-vested as the "interests of justice". Chen J identified the key question for consideration as:

[14] … whether “it appears” that it is otherwise in the interests of justice that the proceedings

• be determined by the Supreme Court of Queensland... If that conclusion is reached,

• then … there is no discretion: the proceedings must be transferred to that Court.

His Honour considered three factors relevant to the determination of the appropriate forum for the proceedings to be heard: 

• the application of the law of Queensland and regime of damages under Queensland law by a New South Wales Court; 

• the potential witnesses are likely to be based in Queensland; and

• the disruption to the Plaintiff can be minimised by speedy determination of the proceedings in Queensland.

His Honour also considered whether the case would benefit from the application of the procedural provisions contained in PIPA, which would apply if the matter was transferred to Queensland. 

Application of the Law of Queensland 

As the alleged events occurred in Queensland, the Queensland law around civil liability as contained in the Civil Liability Act 2003 (Qld) is the relevant law to apply in deciding the case. GCHHS argued that it was in the interests of justice that the Supreme Court of Queensland hear and determine the matter because the Queensland civil liability statute is "idiosyncratic to the Queensland jurisdiction" [20]. 

Chen J did not assign any significant weight to this factor because: 

• the Queensland statute and corresponding New South Wales statute have substantially similar terms and case law interpreting one has on may occasions been referenced when interpreting the other; 

• although the Queensland statute and New South Wales statute have different approaches to assessing general damages, the Queensland statute is not so technical that the Supreme Court of New South Wales could not apply it, and the assessment of the amount of general damages the Plaintiff may be entitled to is unlikely to be highly controversial; 

• the regimes for assessing other types of damages across Queensland and New South Wales are not significantly different; and

• there is one common law of Australia so the Court hearing the matter makes no difference when applying the common law. 

His Honour found that the Supreme Court of New South Wales would have no issues in understanding and applying the Queensland law to this case. 

Potential Witnesses based in Queensland

GCHHS made general statements that lay witnesses were likely to be based in Queensland and would be inconvenienced by the proceedings being in New South Wales rather than Queensland. However, it did not identify any potential lay witnesses. All of the Plaintiff's expert witnesses and treatment team were based in and around Sydney (with the exception of one who was based in South Australia). The Plaintiff and his parents were also based in Sydney. 

Justice Chen particularly noted that the lack of evidence about the potential identity, number or location of any witnesses to be called byGCHHS , meant that his Honour was unable to make any findings in relation to GCHHS's witnesses which would inform his Honour's assessment of whether the proceedings should be transferred to Queensland. 

Disruption to the Plaintiff and speed of resolution in Queensland

Justice Chen accepted the evidence of the Plaintiff's parents that the Plaintiff is highly dependent on them and that he struggled with changes to his routine. His Honour considered this to be contextually important and noted that justice is not divorced from practical reality. His Honour concluded that disruption to the Plaintiff would be considerably less if the proceedings remained in New South Wales. 

In relation to the idea that the proceedings would be resolved more quickly in Queensland, His Honour accepted evidence of the Plaintiff's solicitor who has practiced in both jurisdictions, that medical negligence claims take considerably longer to resolve in Queensland as a result of the procedures required by PIPA. 

Procedural Provisions under PIPA

PIPA requires that any relevant proceedings in the Supreme Court of Queensland undergo procedural "pre-court" steps before coming before the Court, including notification, disclosure of information and a compulsory conference. GCHHS submitted that these procedures, particularly the compulsory conference, would be conducive to refining issues and determining the proceedings quickly. 

Justice Chen noted that in this particular case, the pre-court procedures under PIPA were unlikely to provide any appreciable benefit given the specific issues in this case and the fact that the Plaintiff already had access to GCHHS's records. 

When paired with the evidence of the Plaintiff's solicitor that the pre-court procedures under PIPA have a tendency to draw out proceedings, his Honour was not persuaded that transferring the matter to Queensland to gain the benefit of PIPA requirements would be in the interests of justice in this case. 

Implications of the decision

The stated main purpose of PIPA is "to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury". That main purpose is said to be achieved generally by, among other things, "providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies".

Although Chen J noted that he "can readily accept that many personal injury cases would benefit from [the PIPA] pre-court procedures – notably, the claims settlement procedures", this case brings to light that PIPA procedures may not be a "one fits all" for the speedy resolution of medical negligence proceedings. 

This case also serves as a reminder that, in particular cases, the jurisdiction in which a claimant's cause of action arose may not necessarily be the same jurisdiction in which a claim for damages for personal injuries must be commenced.  

Justice Chen was unpersuaded that the interests of justice favoured transferring the matter to the Supreme Court of Queensland and dismissed GCHHS's application.