Von Reisner v Chepurin [2010] NSWCA 29 | Case summary

Von Reisner v Chepurin [2010] NSWCA 29 | Case summary | Zoe

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Friday 26 February 2010 KOIDU VON REISNER v DR OLEG CHEPURIN Judgment on Summons 1 ALLSOP P: The applicant seeks leave to appeal from three decisions made in the District Court. The first was the refusal on 3 November 2008 of the Judicial Registrar to permit an amendment to the existing statement of claim. I will come back to another aspect of the orders made on that day in due course, but for present purposes I restrict the order from which leave is sought to the refusal to allow an amendment. The second is a refusal by the Judicial Registrar on 15 December 2008 to review or recall her own decision of November. The third is a decision of 20 March 2009 of Judge Cogswell of the District Court refusing to order a jury trial of the action. 2 Arguably the amendment that the Registrar identified, that is a claim under the Fair Trading Act 1987 for misleading and deceptive conduct, was then out of time. I will come to that point in due course. 3 Certainly the application for leave is out of time, but, perfectly properly, if I may respectfully say so, counsel, the solicitor and the respondents indicated that they did not want to put submissions on the question of time alone, rather they wished the leave application to be dealt with on the substantive merits as a leave application. That is how I propose to deal with the matter. 4 The background, very briefly, of the matter is that the applicant originally commenced proceedings in the District Court against the second respondent. Those proceedings were filed in July 2002 and sought relief and damages for breach of duty and contract in regards to dental treatment provided by the second respondent to the applicant between 1991 and 2001. As a result of this treatment the applicant claimed to have sustained personal injuries. 5 The applicant was granted leave to commence proceedings out of time on 1 April 2004 and subsequently proceedings were commenced on 3 May 2004 by ordinary statement of claim in the District Court. That statement of claim has not been amended. In that claim in respect of which leave was given the first and second respondents were joined, separating out in time the allegations of both breach of contract and negligence in relation to dental work from 1991 to 1992 and 1992 onwards to 2001 in respect of the first and second respondents respectively. 6 At the time of the commencement of the proceedings and apparently until approximately 2008 the applicant was legally represented. The applicant, if I may be permitted to say so, is both intelligent and articulate, but I intend no disrespect to indicate that her now position of being unrepresented is unfortunate in the presentation and preparation of her legal arguments and factual material because we have been faced today with, to a degree, a lack of focus by the applicant upon what needs to be done. I will say something else about this, again without the slightest intended disrespect to the applicant, who is not a lawyer, in due course. 7 The matter had some history in the District Court. The evidence before us today is inadequate in its lack of complete reflection of the submissions put today by the applicant. For the reasons that I will indicate, it is not relevant to the way I would dispose of the case today, but it should be noted that by at least 2008 there was discussion between the then legal representatives for the applicant and the legal representatives for the respondent about allegations that by 2008 the applicant wished to make about the chemical composition of the crowns that had been placed in her mouth. There was a nascent complaint not then reflected clearly in the pleadings, that is by 2008, to the effect that the applicant claimed that defective and, indeed, poisonous metals were contained in her crowns.

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8 The applicant indicated that this matter had been raised before the Judicial Registrar in 2007 in a way that had indicated to the Judicial Registrar that the parties were working through some agreed regime to identify the teeth in question that were said to be so affected. This was not clearly set out in the evidence before us today, but if it be the case that the Registrar was aware of those matters in 2007 it could, indeed, have an effect on how the Registrar should have dealt with the matter in 2008. As I said, those matters were not set out with any clarity in the evidence before us today. 9 The evidence placed before the court today contains evidence not available to the Judicial Registrar and not available to Judge Cogswell. That evidence included a report of a Dr Flynn in relation to the chemical composition of crowns. It would appear that there is now some evidence that crowns which, I assume, although the evidence does not reveal clearly, were taken from the applicant contained some of the elements and metals which are said by some of the journals to be poisonous. 10 There is an application today for fresh evidence. Reference is made in the submissions to section 75A of the Supreme Court Act 1970. The difficulty with this submission and the application is that we are reviewing the discretion of the Judicial Registrar and the judgment of Judge Cogswell in relation to the material that was before them. What is necessary to show is that there was in those matters of practice and procedure an error, notwithstanding that later evidence can sometimes be used in appeals where it was not before the decision maker. We are called upon here to examine the exercises of power or discretion by judicial officers and, in my view, I would not take into account at all that later evidence. 11 The reasons for the Judicial Registrar were set out in a three page judgment, which I do not repeat. It was said fundamentally that the Registrar had failed to recall and apply what had happened a year before, and had been unjust in refusing to allow an amendment. It is said that the Registrar fell into error in saying that she refused to continue to allow amendments when no amendment had been made. It was also said that there was an error in relation to referring to the Fair Trading Act because the applicant said she had not asked for that before the Registrar. 12 The transcript of the Registrar does reveal discussion of the Trade Practices Act 1974 (Cth) and its cognate State provision, the Fair Trading Act. 13 What the Registrar said was that in circumstances where six years after the claim was begun, in circumstances where there were merely journal articles and no evidence in support of an application, and in the absence of any amended statement of claim, the Registrar was not prepared to allow an amendment. In my view, there is no arguable basis to think that in those circumstances there was an error at all in that approach. 14 The Registrar, very properly, looked at the totality of the Civil Procedure Act 2005 provisions, sections 56 and 58 in particular, in dealing with the matter. That too was the correct approach. 15 The court has on a number of occasions examined and discussed the operation of the Civil Procedure Act. The Registrar referred, in particular, to Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. In Hans Pet Constructions v Cassar [2009] NSWCA 230 this Court referred to the possible context and limitation of merely relying upon Dennis. Nevertheless, the error that was identified in Hans Pet Constructions of failing to consider the interests of justice was manifestly not committed by the Judicial Registrar here. 16 I also refer to the recent decision of Bi v Mourad [2010] NSWCA 17 in which the court once again emphasised the importance of the proper use of the Civil Procedure Act. 17 The Registrar, properly, examined the justice of the case to both parties and formed the view that the amendment coming forward in the way that it did should not be permitted. The Registrar also said, however, in the last paragraph: "The matter must be listed for hearing. I am prepared to allow one further adjournment to allow you [the applicant] to obtain legal representation, if you wish that...but I will not allow an adjournment to amend the statement of claim." 18 We are informed today by the respondents that the matter is not listed for hearing and has procedural matters still to be heard. Thus, I would take it that the Judicial Registrar's comments in the last paragraph have been superseded by events.

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19 If it be the case, and I do not necessarily read the Registrar in this way, but if it be the case that the Registrar was not merely dealing with the application before her but was stating a rule for the operation and the conduct of this case that she would not at any point allow any further amendment to the statement of claim, significant questions would arise as to the appropriateness of such an order in the context of the limited application that was then being made. However, as I have said, events appear to have overtaken that; and, secondly, I would not read the Registrar to be saying that in the absence of clear words. Apart from any other problem, it would be an apparent fetter of discretion of a later application or a denial of all further applications in limine. I would be far from persuaded that that would be a proper exercise of the powers given under the Civil Procedure Act, but I need say nothing further about that. 20 In December, the Judicial Registrar refused to review her decision. Again on that day there was no draft amended statement of claim. I would look at what occurred in December, in effect, as a legitimate standing by of a decision made in November not to permit the amendment. Again I would not want to say anything more about December if it be construed as the making of an order about other applications not made. 21 Before leaving the Judicial Registrar's decision and turning to Judge Cogswell's decision, I should say this, and nothing that I am about to say should be taken as a criticism of the Judicial Registrar. As indicated in Hans Pet and Bi v Mourad, to which I have referred, the Civil Procedure Act provisions create an entirely new regime in which the timely disposition of cases and the importance of expeditious dealing with litigation has been clearly revealed as matters the Parliament considers important for the disposition of cases. The reason that is so is that it is more difficult, indeed it becomes sometimes impossible, to administer individual justice if cases last for years. Thus the Parliament and the courts in the administration of justice by reference to the rules laid down by Parliament in the Act are obliged to act appropriately but clearly to bring matters on for hearing. That does not mean, however, that difficult cases, in particular if litigants are unrepresented, should not have appropriate time for their disposition.

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22 The evidence before us does not show when Ms Reisner became aware of the possibility of these matters. It does not show whether she has acted in a timely fashion in bringing them forward. 23 Litigation is a difficult exercise. It is difficult for applicants and respondents and defendants. It is difficult when they are advised by competent practitioners. It is doubly difficult for litigants in person. 24 If there is a genuine case in relation to the kinds of matters raised by Ms Reisner, it needs to be identified by reference to a number of steps, all of which the court discussed with Ms Reisner today. There has to be a clear identification of when this matter arose to Ms Reisner's knowledge. There has to be a clear identification of the steps she has taken to bring this to the attention of the respondents. There has to be a clear identification of legitimate expert evidence that identifies in respect of relevant teeth the composition of the crowns. There has to be legitimate evidence to ascribe those crowns to one or other of the defendants. There has to be legitimate evidence that identifies the harm that may proceed from those metals in Ms Reisner's crowns. These are not matters of assertion in submissions. They are not matters of writing letters. They are matters of evidence to be identified with clarity and precision; to be attained from persons qualified to give that evidence. 25 This marshalling of material, if it is to be made, must be done promptly, precisely and clearly. If those steps were taken and if there were a prima facie case, those matters may, on one view, fall within the confines of the existing particulars of the statement of claim. There does not appear to be any doubt that as between the parties through their legal representatives in 2007 there was discussion of this issue. It was not a matter of entire surprise brought forward by Ms Reisner in November 2008. Nevertheless, if a coherent prima facie case with the kind of evidence that I have identified were to be brought forward, reflected in a clear pleading or body of particulars, no doubt the District Court, either through the Judicial Registrar or a judge, would examine that application on the merits. No doubt the Civil Procedure Act would then apply. No doubt the judicial officer dealing with that application, if it were made, would need to balance the competing interests in the Civil Procedure Act. Certainly I do not read the Judicial Registrar as having foreclosed that application by what was said on the last page of the reasons in November 2008. If I thought it did, there would be a matter of leave to give today. 26 Those matters are not by way of judicial advice. They are to emphasise that the refusal that I would make of leave to appeal today is not necessarily an end to the just disposition of claims that Ms Reisner may have if they can be brought forward responsibly, promptly and with clarity. 27 Turning to Judge Cogswell's decision. His Honour refused the application for a jury. His Honour was bound by section 76A of the District Court Act 1973. His Honour applied the terms of that provision. He applied the decision of this Court in Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39; (2007) 69 NSWLR 496. His Honour was right to do so; it was the case which governed him in the exercise of that power. He took into account, on my reading of his reasons, all relevant considerations. I have seen no basis whatsoever to consider that he either misapplied the section or failed to take into account any matter or consideration. 28 It was stated in particular that Judge Cogswell did not examine medical evidence that was put before him. With respect, he plainly did. The submission appeared to be that the matter was one of national significance in relation to dental standards and one of medical malpractice involving complex medical evidence. All these would be powerful reasons why a jury would not be ordered and why a judge would hear the matter. 29 The orders that I would make are that I would extend time to apply for leave to appeal, to the day upon which the summons for leave to appeal was filed to seek leave to appeal against the decisions of the Judicial Registrar of the District Court and Judge Cogswell. I would refuse leave and order the applicant to pay the respondent's costs of the application. 30 TOBIAS JA: I agree with the orders proposed by the President and with his reasons. I would simply add two comments, one being in addition to what his Honour has already said and the other being a correction to something I said during the course of the argument. 31 The first is that I would add to the various matters that the President has referred to as being necessary for the applicant to attend to prior to seeking any further amendment to her statement of claim and/or to the particulars thereof that she would need at least some prima facie evidence to the effect that not only did the metals which she alleges formed part of her crowns have the potential to cause human harm but also that those metals were in her crowns to a level which in fact materially contributed to the injuries which she now asserts she has sustained. 32 The second matter is that during the course of argument I suggested that the appellant's claim under the Fair Trading Act for misleading and deceptive conduct might be met by a limitation problem and I referred to s 68 (2) of the Fair Trading Act. However, at that time I overlooked s 68(2A) which provides that that subs (2) does not apply to a cause of action to which Division 6 of Pt 2 of the Limitation Act 1969 applies. That division relates to personal injury claims and the present is such a claim. Accordingly, the limitation provisions of the Limitation Act 1969 and, in particular, ss 50C and 50D apply. The former imposes a three year post discoverability limitation period whereas s 50D defines that expression. It includes a requirement that the cause of action be discoverable by a person on the first date that the person knew, or ought to have known, of, amongst other things, the fact that the injury was caused by the fault of the defendant. 33 In the present case in order to comply with the foregoing provisions, the applicant would need to establish the first time that she became aware that her injuries were caused by the alleged misleading and deceptive conduct of the defendants, or either of them. I do not, of course, express any particular, let alone concluded, view on that issue. This issue is not before us but it was necessary for me to correct the error that I made during the course of argument.

Von Reisner v Chepurin

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