Brook v Sommerville [2018] NSWSC 237

Brook v Sommerville [2018] NSWSC 237

The transfer motion was dismissed because the Court was not persuaded that the Supreme Court of Queensland was the more appropriate forum in the interests of justice. Although the tort occurred in Queensland and Queensland law governed the claim, the relevant civil liability law was not materially different from NSW law, the plaintiff and Dr Pisarski had particular health and convenience considerations favouring NSW, the second defendant had not demonstrated any material differential detriment from a NSW hearing compared with a Brisbane hearing, potential witness inconvenience could be addressed including by AVL, the absence of pleaded issues limited the weight of the second defendant's...

Jurisdiction
Australia
Judgment Date
02 March 2018
Procedural Posture
Medical Negligence Personal Injury Claim / Notices of Motion for Transfer of Proceedings, Change of Venue and Expedition
Outcome
Both Notices of Motion dismissed.
Legal Topics
['transfer of Proceedings to Supreme Court of Queensland' 'jurisdiction of Courts (cross Vesting) Act 1987 (nsw) S 5(2)(b)(iii)' 'change of Venue' 'expedition of Proceedings' 'interests of Justice' 'queensland Personal Injuries Pre Court Procedures']
['civil Procedure' 'medical Negligence' 'personal Injury' 'cross Vesting Jurisdiction'] ['transfer of Proceedings to Supreme Court of Queensland' 'jurisdiction of Courts (cross Vesting) Act 1987 (nsw) S 5(2)(b)(iii)' 'change of Venue' 'expedition of Proceedings' 'interests of Justice' 'queensland Personal Injuries Pre Court Procedures']

Case Brief

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Procedural Posture

Medical Negligence Personal Injury Claim / Notices of Motion for Transfer of Proceedings, Change of Venue and Expedition

Legal Issues

  1. 1 ['Whether it was in the interests of justice under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) for the proceedings to be transferred to the Supreme Court of Queensland.' 'Whether the venue for the hearing should be changed to the Northern Rivers District under UCPR r 8.2.' 'Whether the proceedings should be expedited because of the health and evidentiary importance of Dr Pisarski.' 'Whether the possible application of the Personal Injuries Proceedings Act 2002 (Qld) on transfer would cause delay or procedural disadvantage relevant to the interests of justice.']

Ratio Decidendi

The transfer motion was dismissed because the Court was not persuaded that the Supreme Court of Queensland was the more appropriate forum in the interests of justice. Although the tort occurred in Queensland and Queensland law governed the claim, the relevant civil liability law was not materially different from NSW law, the plaintiff and Dr Pisarski had particular health and convenience considerations favouring NSW, the second defendant had not demonstrated any material differential detriment from a NSW hearing compared with a Brisbane hearing, potential witness inconvenience could be addressed including by AVL, the absence of pleaded issues limited the weight of the second defendant's...

Court Disposition

Both Notices of Motion dismissed.

Orders

  • ['Notice of Motion of second defendant filed 23 November 2017 dismissed.' 'Notice of Motion of the plaintiff filed 29 January 2018 dismissed.' 'Second defendant to pay the costs of the Notice of Motion filed 23 November 2017 for transfer.' "All parties to pay his, her and its own costs of the plaintiff's Notice of...