An interesting case recently came out of the Supreme Court of the Australian Capital Territory (ACT).

Australia’s federation, with its large states and territories, sometimes throws up the odd situation of residents in one state being closer to the capital of a neighbouring jurisdiction than to that of their own. To address this, each State and Territory government has passed legislation giving each state and territory Supreme Court the jurisdiction of each of the others. By way of example, New South Wales’ Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s.4(3) says that “The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters”

Based on this section, Alice Bailey-Brown and her parents commenced proceedings in the Supreme Court of the ACT against the operators of the hospital where she was born. They alleged that the hospital had negligently managed her birth, causing cerebral palsy.  The defendant applied to transfer the matter to the Supreme Court of New South Wales (NSW), relying on s.5(2)(b)(ii) and (iii) of the equivalent ACT statute.  That section relevantly says –

If —

(a) a proceeding (in this subsection called the relevant proceeding ) is pending in the Supreme Court (in this subsection called the first court ); and

(b) it appears to the first court that …

(ii) having regard to—

(A) whether, in the opinion of the first court, apart from this Act and a law of … another State relating to cross-vesting of jurisdiction, the relevant proceeding … would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and

(B) the extent to which … the matters for determination in the relevant proceeding are matters arising under … a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of … another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

The defendant pointed out that –

• The plaintiffs were residents of NSW.
• The defendant was a creation of NSW law with no presence in the ACT.
• The alleged negligence occurred in NSW.
• The applicable law was that of NSW.
• The defendant’s likely witnesses were based in NSW.
• The plaintiffs’ treating doctors and expert witnesses were mainly based in NSW.

Despite this, the Court declined to transfer the matter.  The test was to balance the competing interests to establish what the interests of justice required.  It noted that –

• The plaintiffs’ home in Wagga Wagga was much closer  to Canberra (2 hours 45 minutes) than to Sydney (about 5 hours).
• The lead plaintiff was aged six years, severely disabled and required constant care.
• The estimated dutation of the trial was three weeks.
• At least some of the plaintiffs’ witnesses were based in Canberra.
• It was possible the matter would be heard sooner in Canberra than in Sydney.

Her Honour’s concluding observation was particularly pointed:

it takes but a moment’s thought about the reality for these parents and their severely disabled child in litigating this matter from Sydney as opposed to Canberra to reach the conclusion that NSW is not the more appropriate forum for this matter. Whatever the merit of the case in medical negligence, I am not minded to make their lives any harder than they already are, by forcing them to litigate in a forum that makes it considerably more difficult for them to attend to the needs of their infant plaintiff.

The Court dismissed the application to transfer the case to the Supreme Court of NSW.

Bailey-Brown v Southern New South Wales Local Health Authority [2019] ACTSC 78