Koidu von Reisner v Chepurin and Anor

Judgment 1The plaintiff, Ms Koidu von Reisner, applies today by motion dated 18 April 2013 for orders under Uniform Civil Procedure Rules r 36.17 ("UCPR"), sometimes referred to as "the slip rule", to amend certain paragraphs of a judgment given by Harrison AsJ on 5 March this year, Von Reisner v Chepurin [2013] NSWSC 150. This is an unusual application. Normally applications under the slip rule are made to the Justice or Associate Justice who makes the decision sought to be corrected. Introduction 2But the factors in play here make it logical that I hear this application. Ms von Reisner has indicated that she has filed in the Court of Appeal a notice of intention to appeal against Associate Justice Harrison's decision. The defendants confirm that she has taken this course. Ms von Reisner accepts that some of the matters she has raised in her present motion are really matters for her appeal and she will not be further pursuing them now. 3At the opening of this case it appeared that perhaps Ms von Reisner was asking the Court to review Harrison AsJ's decision under UCPR Pt 49. But it seems clear from her notice of intention to appeal that she will be arguing in the Court of Appeal her application to review Harrison AsJ's decision. Ms von Reisner certainly indicated that was her intention. 4As to the other matters raised in her motion, it is certainly open to this Court to refer them back to Harrison AsJ. As the trial judge, her Honour is really the person best able to determine whether or not any application of the slip rule is appropriate. That is the course that would normally be taken. 5But efficiency dictates otherwise. This motion is listed before me today for hearing. Referring it elsewhere is a course to be avoided. And the matters in issue allow another course. The matters raised in the motion seem to me to fall into two kinds of categories: (1) those that may arguably come within the slip rule; and (2) those that may arguably fall within any appeal that might be brought from Harrison AsJ's decision. If I cannot deal with the slip rule applications myself, I may have to send them back to Harrison AsJ. I will not decide or consider any further the matters that really belong to a possible appeal. The Court of Appeal may have to deal with them should any appeal ultimately take place. 6If I can dispose of what remains of this motion now, without involving Harrison AsJ that would be efficient and just. And it seems to me I can do that. 7Harrison AsJ's decision, Von Reisner v Chepurin Oleg [2013] NSWSC 150 decided some procedural issues against Ms von Reisner. Her Honour dismissed a Statement of Claim that Ms von Reisner had filed in these proceedings on 12 November 2010. And her Honour refused to grant leave to Ms von Reisner to file an Amended Statement of Claim. In the result her Honour also ordered Ms von Reisner to pay the defendants' costs. 8Ordinarily the Court would set out a factual history of the proceedings at this point. But the factual history Harrison AsJ records in her reasons is a complete and sufficiently detailed summary: Von Reisner v Chepurin Oleg [2013] NSWSC 150 at [1] to [51]. It need not be repeated here. It covers the various proceedings in which Ms von Reisner has been involved: (1) the existing District Court proceedings; (2) the proceedings in the Equity division of this Court; (3) and the present proceedings in the Common Law division. This judgment should be read with Harrison AsJ's judgment and the history set out there should be taken as incorporated into this judgment. 9Ms von Reisner's application is under UCPR r 36.17 for the correction of a number of claimed errors in Harrison AsJ's 5 March judgment. I will go through the claimed errors individually. A number of other powers under the UCPR are referred to in the motion. But UCPR r 36.17 is the one that Ms von Reisner advanced and relied upon in her oral argument. The Slip Rule - Legal Principles 10The legal principles developed for the operation of the slip rule may be shortly stated. The rule, UCPR r 36.17, provides as follows: 36.17 Correction of judgment or order ("slip rule") (cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10) If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 11The slip rule generally applies where the fact of an error, mistake or omission or a "slip" is a matter on which no real difference of opinion can exist. It applies even if there are different possible "corrections" to the alleged error. But the essential common feature of the application of the rule is that the choice between those competing corrections does not involve a matter of controversy or of substance or require the exercise of independent discretion: See Elyard Corp Pty Limited v DDB Needham (Sydney) Pty Operations Pty Limited (1995) 61 FCR 385 at 390-392 and Newmont Yandall Operations Pty Limited v J Aron Corporation [2007] NSWCA 195. 12A convenient criterion for determining whether a proposed correction is justified is the hypothetical inquiry whether the supposed error, if it had been drawn to the attention of the Court or the parties at the relevant time, would have been corrected as a matter of course: See Hatton v Harris [1892] AC 547 at 558. Errors attracting of the slip rule, or not? 13With those principles in mind I now go to the parts of Harrison AsJ's 5 March judgment that Ms von Reisner claims attract the slip rule. 14First, Ms von Reisner says that on the cover sheet of the judgment and against the entry "jurisdiction", the words "Common Law" are wrong. She says it should be "Federal Jurisdiction". There is no doubt that in a case in which Trade Practices Act 1974 (Cth) relief is claimed, as Ms von Reisner does here, the Court is exercising elements of Federal jurisdiction. But the entries on the cover page of the Court's judgments are only a conventional description of whether or not the proceedings are in the Common Law or Equity Division of this Court. It seems to me quite apparent that this is a matter in the Common Law division and it is appropriate that the cover sheet remain entitled that way. There is no error involved in this part of the title and I decline to change that paragraph. 15Secondly, Ms von Reisner claims an error in paragraph [5] of Harrison AsJ's judgment is amenable to the slip rule. She says that the words in paragraph [5], starting with the word "importantly" in line 1 and going to "situation here" in line 4, are incorrect: The plaintiff made wide ranging oral submissions. Importantly, the plaintiff accepts that to have actions by her against the same party or parties for the same cause of action in this court and other courts constitutes an abuse of process. But she says this is not the situation here. As best I can understand, the main thrust of her submissions were firstly, that the claim she seeks to make in these proceedings involve much wider subject matter than that pleaded in the District Court; and secondly, so far as delay is concerned, the plaintiff says that she has had to undergo many investigative procedures in order to obtain evidence that can be included in the expert toxicology report. At the same time, the plaintiff maintains that she has served sufficient expert evidence. The defendants dispute that the plaintiff has served adequate expert evidence. [emphasis added] 16Ms von Reisner says that she did not accept that actions in two Courts could be an abuse of process and that therefore these words in paragraph [5] are wrong. But this change is controversial. And the defendants have established that the controversy has some basis. The defendants point to the transcript from the hearing before Harrison AsJ, (page 4 line 5 to page 5 line 15). Mr Bowen for the defendants, says that the material in the transcript does support her Honour's findings and that this is therefore not a slip rule question at all - it is a matter of controversy. Although Ms von Reisner disputes this, it is quite arguable from the transcript that Ms von Reisner did made this concession, which is really only a matter of law. It is a matter of controversy. So there is an arguable basis from the transcript for taking a different view from that Ms von Reisner takes. And therefore I decline to act under the slip rule to change it. 17Thirdly, Ms von Reisner says that she did not put to Harrison AsJ the following matters which are attributed to her in the first two sentence of paragraph [6] of the judgment: In these current proceedings, the plaintiff says that she intends to sue the manufacturers of the toxic products used in her teeth. She intends to rely upon the Trade Practices Act (now the Competition and Consumer Act 2012) and the Fair Trading Act 1987 to allege that these defendants and others engaged in misleading and deceptive conduct. While the District Court has limited powers under the Trade Practices Act, the plaintiff asserts that her claim in this court goes beyond the District Court's jurisdiction. 18Ms von Reisner says that she did not say that she intended to sue the manufacturers of the toxic product used in her teeth and that this should be removed. But Mr Bowen, submits that the transcript before Harrison AsJ (page 12, lines 1 to 15) support a contrary view. This is therefore a matter of controversy about which independent judgment would be required. And I decline therefore to act under the slip rule to alter it. 19Fourthly, Ms von Reisner submits that another error amenable to the slip rule appears in paragraph [11] of the judgment: Between 1991 and 1992, the plaintiff received dental treatment from the second defendant. Between 1992 and 2001, the plaintiff started receiving dental treatment from the first defendant. 20She says the date "1992" should be "1999". In answer, Mr Bowen points to the plaintiff's own pleading in the District Court, which refers to her receiving dental treatment from the second defendant up to 1992, a date which has become incorporated into chronologies ever since then. Therefore that too is a matter of controversy. And that being so, in my view, I should decline to act under the slip rule to alter this date. 21Fifthly, Ms von Reisner takes issue with paragraph [21] of Harrison AsJ's judgment. This paragraph is a citation from Bergin CJ in Eq's decision in the Equity proceedings, Reisner v Oleg Chepurin (NSWSC, Bergin CJ in Eq, 15 November 2010 unreported), as follows: So far as the service of medical reports, Bergin CJ in Eq continued: The plaintiff has relied upon two reports of Dr Flynn from the University of New South Wales, one dated 15 September 2009, and the other dated 5 October 2010. Dr Flynn took samples from N16, a large tooth with three posts; N48, a medium sized tooth with two posts; and N43, a smooth tooth with no pins and no posts and a sample bridge of three. They were the subject of the 15 September 2009 report. In respect of sample 16, 1.21 per cent was gold; sample 48, 50.1 per cent was gold; sample 43, 50.7 per cent was gold and the bridge sample was 49.7 percent. There is nothing in the report of Dr Flynn that links the content of the other metals, including palladium, indium , and gallium, in each of the samples, to any condition that the plaintiff presently claims she is suffering. That is also the case in respect of the report obtained from Dr Flynn on 5 October 2010 in respect of another sampled tooth, N23 (a front lateral tooth). In that respect Dr Flynn was asked to determine the metal composition of two parts of the crown, namely the shiny edge (sample one) and the dark metal adjacent to the crown post (sample two). Once again, the doctor identified the percentage of gold, palladium, indium, gallium and other metals, but nowhere in the report does he link that content to any condition that the plaintiff presently claims she is suffering. 22The complaint here is that the person described as Dr Flynn appears to be represented as a medical doctor, which Ms von Reisner submits is wrong. The expert referred to is said to be one Professor Flynn, who appears not to be a medical doctor at all. I doubt that his qualifications are a matter of controversy. But it does seem to me that even on the face of the extract from Bergin CJ in Eq's judgment that the criticism is not well founded. Even if Dr Flynn is a professor, he almost certainly has a doctorate and it is quite obvious from the description in Bergin CJ in Eq's judgment that he is acting in the capacity of a chemist rather than a medical doctor. Furthermore, neither Harrison AsJ nor myself would ordinarily hear a slip rule application about such a thing. This would be a matter for Bergin CJ in Eq. But clearly no correction is required. 23Sixthly, the plaintiff disputes part of paragraph [28], which provides as follows: The plaintiff made an application for special leave appeal to the High Court of Australia. This application also been dismissed. The plaintiff says that she is seeking further orders from the High Court. 24Ms von Reisner says "this application" (namely the special leave application to the High Court) "has also been dismissed" is not correct. Ms von Reisner says she is seeking to restore her special leave application to the list in the High Court. But without passing judgment on the prospects of her being able to reargue what has already been decided in the High Court, it is self-evident from what Ms von Reisner has said that she has not yet restored her application to the High Court. And for that reason it does not seem that she has pointed to any error in paragraph [28] in any event. 25Seventhly, in paragraph [30] of the judgment Ms von Reisner seeks the deletion of the words "and the State constitution" as being an error. Paragraph [30] provides as follows: There is also an application for a declaration that the 35 contracts for the sale of the devices and the services related to the installation of the devices have been frustrated by the defendants, and a declaration that the defendants were engaged in the fraudulent representation in the sale of the devices. There is also an application for a declaration that the plaintiff, as the dental services consumer, was deceived and declarations one invoking both the Commonwealth and the State constitution, and the other against the insurer. 26This does not seem to me to be an error. Paragraph [7] of Ms von Reisner's Statement of Claim in the District Court pleads the constitutional basis of the plaintiff's rights that she claims to have been infringed as not specifically State or Federal. And so, it seems to me it is not an error for the words "and the State constitution" to be included in paragraph [36] as they are. 27Finally, the last matter complained of is of a slightly different character. Ms von Reisner says that the name of senior counsel Mr Greg Laughton SC should be removed from paragraph [36]. That paragraph provides as follows: On 12 May 2011, Hoeben J granted the plaintiff's motion for pro bono assistance for advice as to whether the plaintiff had a cause of action under the Trade Practices Act. Subsequently, the plaintiff obtained the benefit of legal advice from Mr Greg Laughton SC. 28Ms von Reisner says, that he should not be named in the judgment at all. She asserts that his being named in the context that he is in this paragraph may give rise to a public conclusion that he is on a list of pro bono barristers. She says that is a list, which is kept confidential by the Bar Association and the Court. Moreover she submits his being named may disadvantage him, and therefore indirectly her. But it seems to me not at all self-evident from the judgment that he is on any such list. Therefore no error or breach of confidence warranting the application of the slip rule is made out here. Conclusion and Orders 29That covers all the matters that Ms von Reisner raises. I accordingly dismiss the motion. 30Mr Bowen asked for costs on behalf of the defendants. Ms von Reisner resists an order for costs, on the basis that she brought the proceedings in conformity with her rights under the National Privacy Principles to ensure that the publication of her personal details was not incorrect, given that Harrison AsJ's judgment is available internationally on the internet. 31But however well-motivated her desire to correct what she perceives to be errors, about her personal details that does not mean that the normal rule under UCPR 42.1 that costs follow the event does not apply. And I will make a costs order against her. 32But in light of her concerns about these alleged errors, Ms von Reisner should have the comfort of knowing that when my judgment is published, as it will be, it will make clear that she disagrees with the matters in Harrison AsJ's judgment that she has identified. So, that will be on the record, on the internet as well through this judgment. 33I therefore dismiss the motion with costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2013