Brejcha v Krieger

1. [1]

   The plaintiff, Serena Brejcha, filed a notice of motion on 24 June 2020 seeking an order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (“the Act”) that this proceeding be transferred to the Federal Court of Australia.

2. [2]

   The defendants consent to the proposed transfer, the only issue being the costs in the application.

3. [3]

   The plaintiff commenced medical negligence proceedings by statement of claim filed on 24 October 2018, against the defendants, who are medical practitioners specialising in obstetrics and gynaecology, arising out of operative treatments provided by each defendant for her gynaecological symptoms in 2005 and 2007 respectively. The first defendant performed a “transvaginal sling procedure”. The second defendant treated the plaintiff by way of a surgery with a “Gynecare Prollift” or “Gynecare TVT System” material. The plaintiff pleaded that both defendants performed the surgeries without discussing with the plaintiff potential complications with each of the procedures which they knew, or ought to have known, from the literature. The plaintiff pleaded that consequent to a breach by one or both of the defendants of their duty of care owed to her, she suffered injury, loss and damage.

4. [4]

   In support of her application, the plaintiff relied upon an affidavit of her solicitor, Nicolette Tyras, sworn 24 June 2020. Ms Tyras deposed that the plaintiff is a group member of the Gill & Ors v Ethicon SarI & Ors NSD 1590/2012 (“Ethicon class action”), in the Federal Court, and stated that similar damages are claimed in this proceeding on behalf of the plaintiff as in the Ethicon class action. Ms Tyras relied upon observations made by Lee J in West v Rane (No 2) [2020] FCA 616, as follows:

5. [5]

   Section 5(1) of the Act provides as follows:

6. [6]

   In Tester v Trueman [2020] NSWSC 756, Lonergan J considered a similar application to this, and observed at [14], with reference to Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 (“Valceski”):

7. [7]

   I am satisfied that it is in the interests of justice that these proceedings be transferred to the Federal Court.

Costs

1. [8]

   On the issue of costs on this application, the defendants submitted in their written submissions as follows:

2. [9]

   At the hearing of the application, the plaintiff responded that the proceedings that were commenced by the statement of claim were in the nature of an allegation of medical negligence, and that it was only after the judgment of Katzmann J in Gill v Ethicon Sarl (No 5) [2019] FCA 1905 was handed down, and then the judgment of Lee J in West v Rane (No 2), that it became apparent that the matter should be transferred to the Federal Court, to enable the plaintiff to pursue her claim as to the product liability element.

3. [10]

   I accept the explanation provided by the plaintiff and will order that costs be in the cause.

Orders:

1. [11]

   I make the following orders: