Mohamed Salim by his next friend Racha Salim v June Dorothy Stufano

IN THE DISTRICT COURT OF NEW SOUTH WALES CIVIL JURISDICTION JUDGE MONTGOMERY THURSDAY 4 MAY 2017 2015/00179701 - MOHAMED SALIM BY HIS NEXT FRIEND RACHA SALIM v JUNE DOROTHY STUFANO JUDGMENT HIS HONOUR: On 10 April 2017, this matter, being a civil case for assessment only under the provisions of the Motor Accidents Compensation Act between Mohamed Salim by his next friend Racha Salim v June Dorothy Stufano, was listed before me for hearing. At the commencement of the hearing, I was informed by counsel that the plaintiff relied upon medico-legal expert opinion report evidence by Dr Klass Akkerman, and that the plaintiff could not proceed without reliance upon that report evidence. The defendant opposed admission into evidence of the report or reports. I do not recall if there were one or more. The basis of the defendant's opposition was that pursuant to UCPR 31.30, it had required Dr Akkerman for cross-examination and he was unavailable. Mr De Greenlaw of counsel, for the plaintiff, conveyed that his instructions confirmed Dr Akkerman was unavailable. The defendant relied upon UCPR 31.30(6) in its objection against tender of the report or reports. The transcript of that day shows that Mr Renshaw of counsel, for the defendant, on instructions, pressed a broader complaint that there was a stratagem in employment concerning Dr Akkerman and as I understood his submission, also the plaintiff law firm or lawyers within that firm. I rejected consideration of the proposition of stratagem and otherwise anything critical of Dr Akkerman unless it be in evidence, given he was not present to defend his professional and personal reputation. The transcript shows that the parties did not contest that in September 2016 the same proceedings could not proceed at hearing before another judge because Dr Akkerman was not available on that occasion for cross‑examination. On 27 October 2016 a subpoena was served upon Dr Akkerman in that it was served at his office. No issue was taken to service. The plaintiff did not contest the defendant's compliance with UCPR 30(3). I will not go further into the evidence of that day other than to say that there is the benefit of transcript obtained and I delivered preliminary interlocutory reasons in order to give these very serious allegations an appropriate procedural path. I do, however, wish to identify the following features of the transcript which I consider important in my discretion which I am required to employ under s 203 of the District Court Act, and indeed in the circumstances of the defendant confirming today the allegation of contempt by Dr Akkerman that it made on 10 April. In point form those passages are as follows: at p 10, line 35, I conducted the hearing on the basis that, except by evidence I would not consider a submission of tendency beyond the one occasion of the subpoena and Dr Akkerman's compliance or otherwise before me on that day; and, throughout the transcript I was deliberately critical of what I saw as the failure by lawyers on each side of the proceedings to have complied with their obligations to exercise the required energy to achieve the evidence of Dr Akkerman in the Court, in particular I observed that the evidence before me showed disputation between lawyers about attendance of Dr Akkerman without energy by lawyers directed to contacting Dr Akkerman for the purpose of achieving his evidence at the hearing. In this latter regard in particular I referred to the resources of Courts for the obtaining of evidence of persons by means other than their personal attendance such as under UCPR 31(3). On 10 April the plaintiff called solicitors Ahmed and Bui. Mr Ahmed described himself as a senior solicitor of the plaintiff firm. Ms Bui's evidence, which I found to be frank and open, showed her to be a junior solicitor complying with the practises within the firm, specifically in relation to the acquiring of the availability of Dr Akkerman and working under the direction and guidance of Mr Ahmed. In Mr Ahmed's evidence at transcript 14, lines 13 to 20, he deposed that the plaintiff firm had hundreds of matters in which Dr Akkerman was retained as a medico-legal expert and, that so far as Mr Ahmed was aware, Dr Akkerman had never given evidence. Counsel for the defendant, no doubt cross‑examining in the realm of what he had referred to as a "stratagem", obtained from Mr Ahmed evidence particularly at p 14, line 45 to 15, line 14, that in a matter in which a plaintiff minor named Lahleugh was represented by the plaintiff firm under the supervision of Mr Ahmed, Dr Akkerman had been subpoenaed and he did not turn up. The proceedings were adjourned and the plaintiffs, there being three, were made to pay the costs. At transcript 16, line 25, Mr Ahmed answered yes to the following question: "Dr Akkerman is the syrup that's put into every pudding, isn't he, namely, he's in every case that your firm brings, isn't he, effectively?" The cross‑examination of Mr Ahmed finished when he sought separate legal representation, see transcript 26 line 40 to p 27 line 4. Nothing that I have said above is to distract from the purposeful summary and my observations at the conclusion of that hearing commencing at transcript 45 which I trust provided guidance to the parties. Nothing that I said on 10 April or on the return of the matter before me on 20 April or today was or is said as a view of determination that Dr Akkerman was either in contempt of court or in contempt in the face or hearing of the Court. The more substantial observation is that I provided Dr Akkerman with the opportunity to show cause under s 194 of the Evidence Act, why the issue of a warrant might not be the appropriate course. I alerted the parties to my concern as to whether or not there had been a contempt of court. I made directions to provide the opportunity for Dr Akkerman's interests to be protected by representation and evidence. The end result was that I stood the matter over before me to 20 April 2017, not for determination of the show cause question under s 194. I stood the matter over to afford Dr Akkerman the opportunity to appear. In fact on 20 April Dr Akkerman was legally represented and I took the view that it was appropriate to make the direction that he have the opportunity to put on evidence in regard to whether or not he be required to show cause under s 194. In that way I confirmed the tentative proposition, of my concern, indicated on 10 April. I specifically directed that Dr Akkerman be made aware of the seriousness particularly of the allegation of contempt and of the consequences of contempt and I was assured by his legal representative that he was aware of those matters. I made directions for the service of evidence. When the matter came before me today, counsel for the defendant pressed the allegation of contempt by Dr Akkerman and of his participation in the stratagem. These are very serious allegations indeed. Parties in these proceedings and the community deserve protection against such conduct if in fact it occurred. The defendant objected to my reading the affidavits of Dr Akkerman and of his secretary Ms Mandy Barry. They were each filed on 1 May 2017. There was no proposal that these persons be available for cross‑examination today. I read the affidavits for the limited purposes of my executive considerations under s 194 of the Evidence Act and s 203 of the District Court Act. At the start of the hearing I indicated to Mr Sneddon of counsel for Dr Akkerman that a matter of particular concern was what followed from my having on 10 April 2017 requested and encouraged solicitors for the plaintiff to try to contact Dr Akkerman over the luncheon adjournment (transcript 41, line 40). Immediately after the luncheon adjournment Mr De Greenlaw assisting the Court, as he is known to do, had obtained instructions. He responded at transcript 44, line 15 that contact had been made with Mandy, who I now understand to be Ms Mandy Barry, Dr Akkerman's secretary. The information from that contact was that she did not know where Dr Akkerman was and that she could only contact him by email. Importantly she had sent an email and was waiting a reply. She confirmed that she had previously been informed that Dr Akkerman would be available on 19 April. Before the luncheon adjournment on 10 April 2017 I had emphasised that Dr Akkerman be advised that the ultimate consequence in this sort of matter is that the registry will issue a warrant for his arrest to bring him to Court, albeit it may be that following a show cause hearing that course would not be followed (transcript 41, line 45). Finally I indicated that if Dr Akkerman could not respond by 2 o'clock, I would stand consideration of whether or not he would be required to show cause over to a later time (transcript 42 line 8). Today reading the affidavits of Dr Klaas Akkerman and of Ms Mandy Barry and for the same limited purpose accepting the affidavit of Ms Barbara Santa Casado made 3 May 2017 (filed with leave in Court by the defendant, which affidavit was so voluminous that Mr Renshaw's summary was invited) I considered whether or not in order to provide natural justice for the purposes of s 203 I should direct the matter go to a full hearing. Counsel for the defendant's application was that I should proceed on the basis of an allegation of contempt. Counsel for Dr Akkerman's position was that I should dispense with any requirement for Dr Akkerman to show cause and be satisfied that there ought not be a referral under s 203. Counsel for the plaintiff agreed with the position taken by Dr Akkerman. On 20 April 2017 I had made directions for all evidence regarding cause of Dr Akkerman's failure to attend to give evidence on 10 April 2017 be by affidavit and for the provision to him of all pleadings, affidavit evidence before the court on 10 April 2017, and transcript of evidence of that day. I indicated that subject to what was said on that evidence, the hearing of the principal matter between the parties might be able to proceed on a date available to Dr Akkerman. The affidavits of Dr Akkerman and of Ms Barry cause me concern at this point when I am to consider whether there be a further hearing in this Court concerning cause of his non-attendance on 10 April 2017 or that the matter should more properly proceed in the Supreme Court pursuant to s 203 in order to satisfy the requirements of natural justice and to do justice. It weighed on me that the evidence received in these affidavits delivered on Dr Akkerman's behalf is pale in several respects given the serious responsibility of compliance with subpoena and, very importantly, pale as to, or inconsistent on the face of the affidavits with the information I have identified above as given to me from reliable counsel at the bar table immediately following the luncheon adjournment on 10 April 2017. The affidavit of Dr Akkerman filed 1 May includes at para 21 that he was in New Zealand on 10 April 2017. As a general worldly proposition New Zealand is a modern, sophisticated society with the provision throughout its community and inhabited places of ready opportunity for communication. This is particularly relevant to the course I pressed on 10 April 2017 for evidence to be organised to be taken by alternative means pursuant to UCPR 31(3) and whether or not that course was available. That the solicitors for the parties had not previously organised it was disappointing. I was not on that day aware that Dr Akkerman was in New Zealand. It was unknown according to the information I was then provided as to where he was. He may have been somewhere without facilities for communication. Nothing in his affidavit refers to a difficulty of communication; to the contrary, Dr Akkerman complains that solicitors did not attempt to organise evidence by alternative means whilst he was physically not in the locality of the Court. That, however, does not sit comfortably with para 8 of the affidavit of Ms Barry in which she deposes that on 10 April 2017 she received a call from someone named Shams. I would understand Shams to be Shams Ahmed, the senior solicitor in the firm representing the plaintiff who gave evidence and instructed Mr De Greenlaw on that day to which evidence and information given after luncheon I have referred above. The effect of the paragraph is that she was informed by Mr Ahmed that Dr Akkerman was required in Court and on his inquiry as to where he was, she answered that "he can't, he is away". On Mr Ahmed asking where he was, she responded, "I'm not 100% sure. I am driving." On 10 April 2017 I was not aware that Mandy was Dr Akkerman's secretary as she is identified to be in both his affidavit and in her affidavit before me today. Nevertheless on that day, as a matter of worldly knowledge, I wondered if it was unusual that a practising psychiatrist would absent themself such that they could not be communicated with in circumstances of serious obligation or need. Of course that may be the very responsible practise of a psychiatrist protecting their own opportunity for respite in life and they may make alternative arrangements for the treatment of their patients. Nevertheless worldly experience invited in my mind the question. In para 10 of Ms Barry's affidavit she deposes that she received a telephone call from Dr Akkerman in which she said, "Someone named Shams rang you." She informed Dr Akkerman that he was to be in Court for Mohamed Salim. She deposes that Dr Akkerman responded in words, "I don't know anything about that. Find out what's going on." That there was telephone communication between Ms Barry and Dr Akkerman on that day causes me to be concerned as to the accuracy or the completeness of that which I was told from the bar table and have set out above. I was on 10 April told that communication between Dr Akkerman's office and in particular between Ms Barry and himself was limited to email and indeed Ms Barry had been awaiting an email in reply. Naturally I make no final determination of these things because it may be that with more detail than is provided in the affidavits, these things are perfectly explainable as innocent. In Dr Akkerman's affidavit at paras 27 and 28 he deposes to two conversations with Ms Barry. It is noticeable that in neither affidavit are the conversations, which I assume to have been by telephone, given a time of day. At paras 27 and 28 of his affidavit Dr Akkerman says that he had a conversation with Mandy in which she informed him of a call from Shams and that it involved him turning up to Court that day, to which he responded in accordance with that set out in her affidavit that he did not know what it was about and directed her to find out what it was about. Further, that a few hours later he called Ms Barry and she said she had found the subpoena. The balance of the evidence of Ms Barry and Dr Akkerman on the factual matters puts the proposition that on receipt in the office of the subpoena, Ms Barry emailed the lawyers who issued the subpoena informing them that 10 April 2017 was not an available date to Dr Akkerman but that the email was not successfully conveyed and that neither she nor Dr Akkerman expected that the parties were not aware that he was not available to give evidence in Court on 10 April. Unfortunately the affidavit of Ms Casado for the defendant takes the form of merely deposing to the collection of 174 pages of communications. In those circumstances, I invited counsel for the defendant, Mr Renshaw, to give me a summary. He said the effect of the affidavit was that it went to the defendant allegation of stratagem in the form of Dr Akkerman, as he would put it, and I hope I do not mis-state his position: repeatedly, if not habitually, providing very generous assessments under s 131 MACA in regard to non-economic loss and the important threshold provided for in that legislation. And further, that the affidavit goes to Dr Akkerman's repeated non-attendance to give evidence when required. Mr Renshaw, at this point of my reasons, corrects me to inform me that when he spoke of stratagem, what he intended to convey was that at a hearing of the factual matters in dispute, the defendant proposes to make a case of stratagem, but that the affidavit of Ms Cassado only goes to instances of Dr Akkerman's non-attendance when required, including by subpoena to attend, for cross-examination in regard to opinion evidence provided by him by way of report in personal injuries proceedings under MACA. On the evidence read before me, I reject the application by counsel for Dr Akkerman that I dispense with the requirement that he show cause. Pursuant to s 203 (1) of the District Court Act, where it appears to the District Court, on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination. In Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277, the Court of Appeal provided guidance for the District Court (and the Local Court in regard to Local Court Act (2007) s 24(4)) as to how to proceed under s 203. Firstly, there is a requirement to the extent required for a judge to exercise the discretion provided for by the words "may refer" in s 203(1) for the provision of natural justice. The obligation is, in this case, for the doctor to be provided the opportunity to show why that should not be so. In the present hearing, the Court must consider both that it is alleged by the defendant that Dr Akkerman's failure to attend involves a contempt of court and whether there is the "appearance" of guilt of contempt . It is not, in my view, without significance that the defendant, by counsel Mr Renshaw, puts it that at a hearing of that allegation, very serious matters would be pressed by the defendant toward proof of a stratagem involving Dr Akkerman in regard to the provision of his medico-legal reports, particularly for minors, and further, that beyond the one instance of Dr Akkerman's non‑attendance when subpoenaed on 10 April 2017 in these proceedings, there is a substantial and provable history of his failure to attend in compliance with subpoena. At this point in my reasons, Mr Renshaw confirms that is the case that he is instructed the defendant would propose to make. There is, on the evidence of his non-attendance on 10 April before me, to which I have referred, a basis for considering there to be a properly made allegation of contempt by Dr Akkerman's failure to attend when subpoenaed. In saying this, of course, I repeat, I make no final determination and Dr Akkerman has not had an opportunity to respond to that allegation at a hearing. Having said that, in the paucity or shallowness, if I may describe the evidence in Dr Akkerman's affidavit, as I have already criticised it, I am disappointed he does not respond to that passage of the transcript of the last occasion referring to his non attendances, that being in evidence given then by Mr Ahmed. Taken as a whole, in my opinion, the evidence, such as it is before me, satisfies me as to the appearance of contempt, sufficient that it is appropriate in the function provided to me under s 203 of the District Court Act, that I refer the matter to the Supreme Court. In addition, I am, as above stated, moved by the event of the defendant's allegation of contempt. The referral for consideration of the allegation and appearance of contempt concerns Dr Klaas Akkerman, of Level 1, Commerce Suite 10, 24‑30 Wharf Street, Forster 2428, psychiatrist. Immediately, the conduct which I refer is Dr Akkerman's failure to attend to give evidence on 10 April 2017 pursuant to subpoena issued 27 October 2016. I have not formed a view that Dr Akkerman, on the evidence before me, has conducted himself such that his conduct constitutes contempt. I am, however, satisfied of the appearance of that. I am also satisfied that the defendant's allegations are sufficiently serious, that in the interests of justice the proceedings determining them be conducted once and once properly, and that be in the Supreme Court of New South Wales. ORDERS: Pursuant to s 203 of the District Court Act, I refer the matter to be dealt with under part 55, r 11(6), Supreme Court Act in the Supreme Court of New South Wales. In that referral, I note that it has been alleged that on 10 April 2017, in proceedings between Mohamed Salim by his next friend Racha Salim and June Dorothy Stufano in the District Court of New South Wales sitting in Sydney, Dr Klaas Akkerman, when subpoenaed to do so, failed to appear. Pursuant to s 203 of the District Court Act 1973, I refer this alleged contempt of court to the Supreme Court for determination under part 55, r 11(6) of the Supreme Court rules. Before me also today are two other matters, which I consider, will be more efficiently and fairly determined in the proceedings in the Supreme Court of New South Wales. The first is a notice of motion, filed in this court on 4 May 2017, opposing that Dr Akkerman be required to produce documents in response to a subpoena issued 24 April 2017. The second matter goes to the question of the breadth of the allegation of contempt, and particularly in regard to the stratagem which the defendant proposed to further advance before me today. The matter arrived in this Court before me today on 4 May, consequent upon the procedural course, I have identified above commencing on 10 April 2017 and directions made by me on 20 April. Dr Akkerman was not, in the course of that process, required to show cause or to defend himself in relation to what I understand to be the subject of Ms Casado's affidavit, allegations of failure to attend on subpoena on other occasions - those are matters, which if they are to be raised, might be raised in the Supreme Court of New South Wales. Which leaves me to deal with the hearing in the principal proceedings before me. The parties agree that I exclude myself from determining a hearing in this matter and I agree to do so. In fact I have not heard any evidence in the principal proceedings. I order that the proceedings be listed before the Judicial Registrar on Friday 26th May. 2017, for the purpose of the parties informing the Court of directions for readiness for hearing. I order that the plaintiff and defendant attend with dates available, to the parties and to Dr Akkerman for hearing, and thirdly, that subject to the parties not being ready the matter be listed for hearing. Should any party propose on 26 May that they are not ready for hearing the cause is to be supported by affidavit evidence, of that failure to be ready. No party is to have costs of 10 April, 20 April, and 4 May in this Court, including no costs of preparation for those dates. SNEDDON: Your Honour, might I finally but utterly respectfully seek a stay for 21 days, the reason being that that will allow transcript to be obtained of today and if my client does seek leave to appeal, we need to get the white folder on the white book and we need the transcript for that purpose. HIS HONOUR: No. I have given an order only that the matter go to the Supreme Court. It's a matter which says the Supreme Court and its jurisdiction takes this matter now from my hands, the hands of this Court and the jurisdiction of this Court. Any application that is to be made can be made in the Supreme Court. SNEDDON: If your Honour please. I have made formally the application for the stay so it ought not be transferred. HIS HONOUR: Yes, and I reject it. 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: 08 May 2017