von Reisner v Chepurin

Judgment 1McCOLL JA: The Court has before it two notices of motion filed by Ms von Reisner in which she seeks review of two decisions made by Justice Young. In the first decision, delivered on 9 May 2011, his Honour rejected Ms von Reisner's application for an order pursuant to Part 7, Division 9 of the Uniform Civil Procedure Rules 2005 ("UCPR") that legal assistance be provided to her to help her with the preparation of white folders and formulating her grounds of appeal. His Honour did, however, give the applicant an extension of time to file a White Book seeking leave to appeal from a decision of Bergin CJ in Eq made on 15 November 2010. In that decision Bergin CJ in Eq had refused the applicant's application to transfer and consolidate proceedings in the District Court of New South Wales with proceedings in the Supreme Court of New South Wales. 2The proceedings in the District Court were commenced by the applicant in 2002, originally only against the first respondent, Dr Oleg Chepurin. In 2004 she was granted leave to file a fresh statement of claim in the District Court proceedings joining the second respondent, Dr Sophia Wayne-Shevchuk. 3The District Court proceedings are based on claims for breach of contract and/or negligence. Both respondents are dentists, each of whom treated the applicant. In the case of the first respondent, that treatment took place during the period 1991 to 1992, while the second respondent apparently treated her over the period 1992 to 2001. 4According to submissions the respondents have filed in this court and reference to these matters in previous judgments, in those District Court proceedings concessions have been made by the respondents admitting breach of duty to parts of the applicant's claim. The District Court proceedings apparently remain in that court's inactive list pending the outcome of these proceedings and further proceedings which were subsequently filed in the Common Law Division of this court. Those proceedings remain on foot, although they have not, according to the respondents' submissions, as yet been determined or significantly advanced. It was the applicant's attempt to transfer the District Court proceedings and have them consolidated with the Supreme Court proceedings which was the subject of Bergin CJ in Eq's decision. 5The second decision of Young JA against in respect of which the applicant seeks a review was made on 24 June 2011: von Reisner v Chepurin [2011] NSWCA 162. In those proceedings his Honour heard a question referred to him by the Registrar as to whether the applicant's appeal was competent and if it was not, for its dismissal pursuant to UCPR 13.4. 6The essential question Young JA had to resolve was whether Bergin CJ in Eq's decision was interlocutory, in which case leave to appeal was required, or a final judgment, in which case no such leave was required: s 101(2)(e), Supreme Court Act 1970. His Honour concluded (at [20]), having referred to authorities drawing attention to the fact that a final judgment was one which finally disposed of the rights of parties whereas an interlocutory order does not, that "Bergin CJ in Eq's order did "not finally dispose of the rights of the parties. It is a decision made to determine a particular procedural set of proceedings... ." Accordingly his Honour found (at [21]) that "the decision of Bergin CJ in Eq was an interlocutory order and the current appeal is incompetent." His Honour dismissed the appeal with costs. 7The applicant filed a notice of motion on 23 May 2011 seeking review of Young JA's first decision. On 7 July 2011 she filed a further motion seeking a review of his Honour's second decision dismissing the appeal as incompetent. Thereafter both motions were listed for directions on 15 August 2011. They were then adjourned to 26 September 2011, whereupon the applications were listed for hearing on 7 November 2011. 8On 4 November 2011 the applicant faxed a document to the Registrar of the Court of Appeal seeking an adjournment of the hearing of 7 November 2011 on the basis that she was not able to attend the Court on that date. In support of her application that the matter not proceed on that date she sought to rely upon medical certificates suggesting that a six month adjournment was necessary. The terms of one of those medical certificates from a Dr Lea-Anne May dated 19 September 2011 and addressed "To whom it may concern" should be placed on the record. In short that certificate stated: "Ms Reisner states she is too unwell to attend court on a regular basis due to her multitude of physical complaints. She is completing investigations for her neurologist and awaiting review of these. She requests adjournment for six months." 9Another letter from a doctor, Dr Peter Gavrilov, again addressed "To whom it may concern" dated 3 November 2011, certified that Ms Reisner was suffering from gliosis in the frontal lobe and was "not fit to attend Court for the next 6 months because she is undergo [sic] neurological investigation." 10According to the respondents' submissions, the applicant did not appear at the 7 November 2011 hearing and the matter was listed for further directions on 5 December 2011 whereupon it was stood over generally before next being listed on 4 June 2012. At the directions hearing in June 2012 the applicant served a draft affidavit annexing further reports dated May 2012, one of which from Associate Professor Rimmer, advised that the applicant needed to lie down at frequent times during the day and sought access to the Court's medical room for that purpose, while a second from Dr Freedman certified that Ms Reisner was suffering "from a medical condition and is currently undergoing further investigation [and] remains unfit to attend court for a period of at least 3 months." 11At the directions hearing on 4 June 2012 the matter was stood over until 27 August at which time it was listed for hearing today. On 28 November, just over a week ago, Ms von Reisner made an application to vacate today's hearing date. She relied upon medical certificates which she contended gave the Registrar a basis to accede to that application, suggested that the decision may be made in chambers to save costs and time and referred to the Registrar's statement to her that if she sought to vacate a hearing date, she would need to provide fresh medical certificates to the Court to support that application. 12The adjournment application was heard by Ward JA on 3 December 2012. Ms von Reisner did not appear on that day and Ward JA dismissed her application. In the course of her reasons, Ward JA recounted information she had received that Ms von Reisner had previously indicated to the Registrar that she did not intend to appear on the hearing of her application to vacate the hearing date. Her Honour then considered the application, noting that the application appeared to be advanced on two bases, the first relating to the applicant's state of health and the second to what her Honour described as the "related claim by Ms von Reisner that a vacation of the hearing was required pursuant to Occupational Health and Safety requirements." 13Her Honour then set out (at [3]) the medical certificates upon which the applicant relied to sustain the first basis upon which the adjournment was sought. Her Honour concluded (at [6]) that those medical certificates left her with little confidence that if the hearing were vacated until next year, the applicant would be in any better position to deal with the matter then. Her Honour noted that those certificates were "summary in content and seemed to reflect little more than Ms Reisner's belief as to her position." 14As to the second matter advanced concerning Occupational Health and Safety requirements, Ward JA was not satisfied that the applicant's invocation of that legislation was of relevance in the current circumstances. Her Honour noted that in her view the applicant was not "a worker" within the contemplation of the relevant legislation and, insofar as medical certificates referred to the necessity for the applicant to lie down during Court proceedings, concluded that such issues could be dealt with should they arise by application during the course of the hearing of the application for review. Accordingly, her Honour concluded (at [8]) that she was "not satisfied that it was appropriate in the interests of Court management, and having regard to the principles outlined in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 to vacate the hearing date." She dismissed the application to vacate the hearing date with costs. 15At about 4.50pm yesterday afternoon, 6 December 2012, the applicant attended the Court registry with a notice of motion which sought to set aside Ward JA's decision, a stay of that decision until its review by the Full Court in the presence of the applicant and other orders which I do not think it is necessary to recount. She asked the Registrar to list that notice of motion in April 2013. He declined to do so and directed that it be listed today. 16The applicant then filed an amended notice of motion in which she also sought a review of the Registrar's decision not to list the original notice of motion in April 2013. 17At the time she attended the Court on 6 December, the applicant provided to the Registrar two other documents apparently from medical practitioners. The first is on the letterhead of Associate Professor Martin Weltman. It has in handwriting at the bottom the date "01/12/12". It is addressed "To whom it may concern". It is in similar terms to those I have previously quoted insofar as it refers in general terms to the applicant being in ill health, on this occasion "related to pathology in the digestive system", and states that she "requires ongoing medical investigation [which] will continue until 1 April 2013 and hence she is not fit to attend court proceedings until this date." It appears to my eye that in its original form, that sentence in Associate Professor Weltman's letter said "1 April 2012" and that the year 2012 has been altered in handwriting so that it appears as 2013. It is not apparent who made that alteration and if the letter was prepared on or about the date it bears, 1 December 2012, then clearly any reference to 1 April 2012 would have been a mistake. 18The second document is a bald statement on the letterhead of Dr Freedman dated 19 November 2012, again referring to the necessity that there be an adjournment until 1 April 2013 on the basis of ongoing investigations into the applicant's "multiple medical conditions" leading her to be "unfit for court proceedings." 19This morning Ms von Reisner faxed to the Court a document headed "Legal Submissions of the Applicant, Persons with Disabilities (in Court)" in which she asked the Court to adjourn the matter "so I will be able in April 2013 be [sic] in the Court myself to explain correctly the documents of the case", asks that any hearing be adjourned and listed for directions in April 2013 "when I will be in the court to take the hearing date and will be able to ask for the orders if necessary". The document refers to the medical certificates provided yesterday to which I have just referred. 20The applicant also asked that no costs order be made for today's date on the basis that her motion was filed yesterday. It also contends that because of the contents of the medical certificates filed on 6 December, she will not be able to be in Court today but asks the Court not to conduct the hearing in her absence. I interpolate that it is difficult to understand how the applicant could ask that the appeal be adjourned and not attend, yet ask the Court not to conduct a hearing in her absence. 21The respondents oppose the application for the adjournment. They submit that the Court may deal with the matter in the applicant's absence pursuant to UCPR 29.7 which empowers the Court when a trial is called on, if any party is absent, to proceed with the trial generally or so far as concerns any claim for relief in the proceedings. 22UCPR 51.1, which applies to proceedings that are assigned to the Court of Appeal, provides that "[s]ubject to [that] Part, the other provisions of these rules apply, so far as applicable, to proceedings in the Court". Subrule (4) provides, in substance, that for the avoidance of doubt the rules referred to in subrule (3) have effect subject to the modifications therein set out, the relevant one of which is subparagraph (d) which is "such other modifications as are necessary." Consistently with that rule it seems to me that the Court can read "trial" in UCPR 29.7 to refer to the applicant's applications for review of Young JA's reasons as well as her application for an adjournment. 23In my view the Court should not accede to the application for an adjournment. It is apparent from the lengthy history of the proceedings which I have recited that the pattern of the applicant's approach to the proceedings, at least since her lack of success before Young JA in the two matters to which I have referred, is not to proceed with the substantive determination of her applications but, rather, to continue to defer their hearing on the basis of medical certificates which are of a brevity of the nature criticised by Young JA in the proceedings in Forster v Harvey [2006] NSWSC 1112, to which Ward JA referred in her judgment of 3 December 2012. 24It is difficult to understand the applicant's reliance upon these certificates insofar as I would note that notwithstanding the statements by various practitioners that the applicant is unable to attend court due to the ongoing investigations and due to her medical condition, she nevertheless appears to have been able to put together substantial numbers of documents which are set out in the White Book, to attend court to file those documents in the registry and to prepare submissions which were faxed to the court. It appears to me that there is inconsistency between the level of activity the applicant is clearly able to engage in to produce those documents and to attend court on the occasions she does and the statements in the medical certificates professing the contrary in terms of her ability to attend court. 25The situation at the moment is that by virtue of Young JA's second decision, there is no appeal extant in this Court, it having been dismissed as incompetent. It is appropriate, in considering the applicant's application for an adjournment, to consider the prospects of success of her application to review his Honour's dismissal of the appeal. If that application did have some prospects of success, then, in my view, that is a relevant consideration in determining whether an adjournment should be granted. 26In my view, the applicant does not have substantial, if any, prospects of success in her application to review Young JA's dismissal judgment. His Honour applied long-standing authority determining what constitutes an interlocutory as opposed to a final order. It is plain that the order Bergin CJ in Eq made refusing the application to transfer the District Court proceedings to this Court to consolidate them with a summons filed in this Court was not one finally disposing of the rights of the parties as his Honour found. Accordingly, in my view, the applicant will not be successful in demonstrating his Honour erred in holding that her appeal was incompetent and dismissing it. 27The Court must also, in considering the application for the adjournment, take into account the position the respondents have been in for some years now particularly since the proceedings have been in this Court consequent upon Bergin CJ in Eq's decision. Her Honour's judgment was delivered just over two years ago, in November 2010. These, what I will call loosely, "appeal proceedings" have now been in this Court for over two years. Since at least June 2011 they have not progressed at all consequent upon the numerous adjournment applications made by the applicant relying in effect on the same grounds each time, namely the necessity for ongoing medical investigations. While one must have the utmost sympathy for somebody with a medical condition, nevertheless one must also take into account the fact that the investigations which were the subject of medical letters prepared in 2011 do not appear to have been concluded in the period contemplated by them and the Court is now faced with correspondence from medical practitioners which in the barest of terms state that the investigations will have to continue in a manner incapacitating the applicant from attendance in Court until April 2013. 28The Court is directed by the provisions of s 56 and s 58 of the Civil Procedure Act 2005 to have regard to the fact that the overriding purpose of the Act and of the rules of court is "to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings" and in "deciding whether to make any order or direction for the management of the proceedings" to "seek to act in accordance with the dictates of justice." 29In the latter respect the Court must have regard to the matters enumerated in s 58(2)(b) of that Act which include "the degree of expedition with which the parties have approached the proceedings," "the degree to which any lack of expedition has arisen from circumstances beyond the control of the parties" and "the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction." 30Having regard to the view that I have expressed as to the likely outcome of the applicant's application for a review of Young JA's dismissal judgment, it does not appear to me that the applicant will suffer injustice in the sense referred to in s 58(2)(b)(vi). On the other hand, the respondents will suffer injustice if the proceedings continue in this Court with no certainty as to whether, even if the Court were to accede to an application to adjourn them to April 2013, there would be any prospect of them being resolved on that occasion. Indeed as will be noted from my earlier reference to the application received this morning, it does not appear that the applicant contemplates that there would be a substantive hearing in April 2013, rather that on that date the matter should be listed for directions. 31It would not in my view facilitate the just, quick and cheap resolution of the real issues in these proceedings were the Court to accede to the application for an adjournment. 32Insofar as the applicant sought a review of Ward JA's decision of the 3 December, I would only say first that there is no demonstrable error in her Honour's reasons and, in any event, the Court is considering the applicant's current application for an adjournment of today's hearing. 33Insofar as the applicant in her amended notice of motion filed yesterday evening sought to review the Registrar's decision not to provide a return date for the motion she filed yesterday in April 2013, in my view there is nothing which would demonstrate any error in the Registrar's decision as to a matter of practice and procedure which was clearly within his discretion to make. 34I would refuse the applicant's application for an adjournment and dismiss her notice of motion dated 23 May 2011, her amended notice of motion of 7 July 2011 and her amended notice of motion of 6 December 2012. I would order the applicant to pay the respondents' costs of those notices of motion and of today. 35HOEBEN JA: I agree with the reasons of McColl JA and wish to add only these brief remarks: the content of the medical certificates in support of the applicant's adjournment application is exiguous in the extreme and Ward JA was correct in refusing the applicant's application for an adjournment on the 3 December 2012. The certificates do not justify this Court in granting an adjournment. The decision of Young JA to dismiss the applicant's appeal was clearly correct. 36Accordingly I agree with the orders proposed by McColl JA. 37MCCOLL JA: The orders of the Court therefore are as I proposed.