Navigating jurisdiction: medical negligence cases across borders

The plaintiff, a 13-year-old with severe cognitive, physical, and developmental disabilities, including unilateral cerebral palsy, claims that his condition was caused by the negligence of the Gold Coast University Hospital (GCUH) during his mother's pregnancy and his birth in 2011. The family lived in Queensland at the time of his birth, but moved to New South Wales in 2015. The plaintiff commenced proceedings against GCUH in the New South Wales Supreme Court, alleging that his mother was not properly classified as 'high risk', which led to a failure to adequately treat her, causing the plaintiff’s hypoxic brain injury and cerebral palsy.

The defendant made an application under s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) to essentially transfer the medical negligence proceedings from the NSW Supreme Court to the Supreme Court of Queensland, to which the plaintiff opposed. 

The defendant argued that in the 'interests of justice', the Supreme Court of Queensland was more appropriate to determine the issues in dispute in the proceedings. This was in consideration of four factors:

1. the entirety of the events giving rise to the proceedings occurred in Queensland;
2. the substantive law of Queensland applied to the circumstances, as did the regime of damages fixed by Queensland law;
3. the disruption to the plaintiff can be minimised with the prospect of speedy determination of proceedings in Queensland; and
4. the expected witnesses on liability are likely to be Queensland practitioners and based in Queensland.

The plaintiff’s submissions were essentially to argue the opposite effect and that, when all relevant connecting factors were considered, it could not be concluded that the Supreme Court of Queensland, rather than the NSW Court, was more appropriate having regard to the interests of justice.

Importantly, the defendant further submitted that if the proceedings were transferred to the Supreme Court of Queensland then, upon the order being made, the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) would apply, with the consequence that the ‘procedural provisions applicable… would necessarily apply, including compulsory conferences, which would be conducive to the refinement of the issues, and the speedy determination of the proceedings’.^[1] This suggested that the moving of the proceedings to the Queensland Supreme Court, and thusly the application of PIPA, would assist the parties in reaching a resolution sooner than if the proceedings remained in the NSW Supreme Court.

The plaintiff’s solicitor disagreed, and submitted that, in her experience, Queensland medical negligence matters take considerably longer to resolve, purely because of the requirements pursuant to PIPA.

One of the key differences between a personal injuries claim in Queensland versus New South Wales is the existence of the pre-procedure process under PIPA. New South Wales does not have similar pre-proceedings requirements.

Justice Chen considered multiple factors to determine the ‘interests of justice’, including the governing law, evidentiary advantages, balance of convenience, and the potential disruption to the plaintiff. His Honour found that the Civil Liability Act 2003 (Qld) and the Civil Liability Act 2002 (NSW) are substantially similar and there are, in fact, authorities interpreting particular provisions in the Civil Liability Act 2003 (Qld) that do not suggest there is any significant difference between those provisions and the way that comparable provisions in the Civil Liability Act 2002 (NSW) have been interpreted. Justice Chen found therefore that the Supreme Court in NSW is well equipped to understand any differences and apply the Civil Liability Act 2003 (Qld). 

The defendant's argument about the convenience of hypothetical witnesses was not persuasive due to a lack of specificity about their identities and locations. Justice Chen also placed significant weight on the disruption that transferring the case would cause to the plaintiff and his family, given their current residence in New South Wales.

Application of the Personal Injuries Proceedings Act 2002 (Qld)

While Justice Chen agreed that many personal injuries cases benefit from the PIPA procedures, and never land before a judge, His Honour was unable to conclude confidently that these procedures would benefit this case. He stated:

‘I do not accept in this case that the application of PIPA would, as the defendant submitted, result in a “speedy determination” of the matter, given my assessment of the likely liability issues and the quantum of the claim and my acceptance of the evidence from the plaintiff’s solicitor about her experience with the pre-court procedures, and the delay associated with them…’

                                                                                                                        (at [46])

The Court assessed that given liability would be a significant issue between the parties (which the defendant did not disagree with) and that quantum of the claim is likely to be significant, it did not consider that having the case go through PIPA would actually lead to an earlier resolution. The presumption was that the matter would not end up resolving at a compulsory conference in PIPA and proceed to litigation in any event.

Justice Chen concluded that he was not persuaded that it was in the interests of justice to transfer the proceedings to the Supreme Court of Queensland. The defendant's notice of motion was dismissed, and the defendant was ordered to pay the plaintiff's costs related to the motion.

[1] At [43].