Jeske v Rowe & Anor

In this matter the plaintiff filed a Notice of Motion on 6 February 2024, seeking an order that medical negligence proceedings 2021/351230 be transferred to the District Court of New South Wales at Sydney pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW) (the CPA). Section 146(4)(b) of the CPA is the relevant subsection and provides:-

It is common ground that the amount likely to be awarded to the plaintiff, if successful, will not exceed the jurisdictional limit of the District Court. The question, therefore, is whether or not there is sufficient reason for hearing the proceedings in the Supreme Court. The plaintiff relies on the affidavit of Susan Newman affirmed on 5 February 2024. The first defendant relies on an affidavit of Donald Alan Ross Munro sworn on 29 February 2024. The first defendant opposes the plaintiff's motion. The second defendant neither consents nor opposes the motion.

Mr Munro in his helpful written submissions identifies the reason for keeping the proceedings in the Supreme Court as being the ability for the matter to be case managed in the Professional Negligence List, in circumstances where it is agreed that the issues to be decided ultimately by the Court will be difficult, in particular breach of duty and causation.

The first defendant has agreed not to seek an order under r 42.34 of the Uniform Civil Procedure Rules 2005 (UCPR) in the event that the plaintiff is awarded damages under $500,000, which means that the plaintiff will not be prejudiced as to costs if the matter remains in the Supreme Court. However the second defendant has not agreed to not seek an order under r 42.34 of the UCPR in the event that the plaintiff is awarded damages less than $500,000 and therefore, at least as against the second defendant, in the event of her success the plaintiff will at present be so disadvantaged.

Leaving to one side the fact that it is likely that a hearing date will be obtained either in the District Court or the Supreme Court at about the same time, in my opinion, that the second defendant has not agreed to not seek an order under r 42.34 is reason enough to find that there is no sufficient reason for hearing the proceedings in the Supreme Court, and that the proper venue in those circumstances is the District Court.

I therefore transfer the proceedings to the District Court of New South Wales at Sydney pursuant to s 146 of the Civil Procedure Act 2005. Costs of the motion are to be costs in the cause.