Von Reisner v Chepurin

Supreme Court of NSW|2013-03-05|Before: Bergin CJ

Judgment 1HER HONOUR: The main issue to be decided is whether the plaintiff should be granted leave to replead her statement of claim. By amended notice of motion filed 31 January 2013, the first and second defendants seek, firstly, an order that the statement of claim in these proceedings be dismissed pursuant to Rule 13.4 or 14.28 or 12.7(1) of the Uniform Civil Procedure Rules 2005 (UCPR). 2By notice of motion filed 17 December 2012, the plaintiff seeks (as best as I can ascertain), firstly, an order pursuant to the Trade Practices Act 1974 (Cth) provision relating to the latent cause and the nature of consumer injuries, to have a special timetable providing necessary time for her to obtain all required medical evidence; secondly, an order that the Court pursuant to the Disability Discrimination Act 1982 (Cth) take into account the plaintiff's disability and conditions which cause her to be unable to attend the Court or unable to file documents in time and such delays should not cause prejudice to her, especially in relation to the court proceedings; and thirdly, an order that the defendants produce documents for inspection pursuant to UCPR 21 and 22 for discovery and interrogatories. An order for discovery and inspection of documents and interrogatories is inappropriate at this stage. 3The plaintiff is Koidu von Reisner. The first defendant is Dr Oleg Chepurin. The second defendant is Sophia Wayne-Shevchuk. 4At this hearing the plaintiff was not legally represented. I have taken her case at its highest. I have read the plaintiff's documents on file. This includes a large bundle of medical reports and articles. Aside from the result of recent blood tests in 2011, the latest medical report is that of Dr Klass Akkerman, psychiatrist dated 24 July 2008. I have not taken a technical view about the admissibility of the contents of her affidavits and submissions. At the hearing the plaintiff tendered a collage of photographs depicting her teeth and images of scans of some of her body parts (Ex A). 5The 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. 6In 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. 7I remind myself that the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 179 CLR 269 at 286-296 and 302-3. The pleading in the current statement of claim falls well short. 8In Von Reisner v Oleg Chepurin (NSWSC, 15 November 2010, unreported) Bergin CJ in Eq, in an ex tempore judgment, commented upon this current statement of claim. Her Honour stated: "...the state of the pleading would be of little assistance to any trial judge. There is no cohesion of claims, merely broad brush allegations of rights, constitutional and otherwise, with purported claims on behalf of the Commonwealth, which on one view of it seem to me to be inappropriate. ..." 9The plaintiff agrees that the statement of claim needs to be repleaded. The main issue for my determination is whether or not the plaintiff should be given an opportunity to replead her statement of claim. 10It is necessary to briefly refer to the history of these and other proceedings.

The current District Court proceedings 11Between 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. 12In 2002, the plaintiff commenced proceedings in the District Court, originally against Dr Chepurin. In 2004, the Plaintiff was granted leave to file a fresh statement of claim in the District Court joining Dr Wayne-Shevchuk to the proceedings. 13The District Court proceedings are based on causes of action for breach of contract and/or negligence. The defendants are both dentists and the plaintiff received treatment from each of them. 14In November 2004, the defendants filed a defence admitting certain breaches of duties of care. In 2008, the plaintiff's application to amend was refused by the Judicial Registrar. This decision was the subject of appeal to the Court of Appeal. 15On 17 March 2009, Guild Lawyers (now Meridian) were instructed to act on behalf of the defendants. In 2009, Judge Cogswell refused the plaintiff's application for a jury trial. This decision was also the subject of appeal to the Court of Appeal. 16On 26 February 2010, the plaintiff's application to the Court of Appeal for leave to appeal the decisions of the Judicial Registrar and Judge Cogswell was refused. In Von Reisner v Chepurin [2010] NSWCA 29, Allsop P stated at [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." 17On 5 September 2011, the District Court proceedings were listed for callover and placed in the inactive list for 12 months.

The Equity proceedings 18On 4 May 2010, the plaintiff filed a summons in the Equity Division of the Supreme Court seeking the transfer and consolidation of the District Court proceedings to the Supreme Court. 19On 15 November 2010, the summons was listed for hearing before Bergin CJ in Eq. 20On 15 November 2010, Bergin CJ in Eq refused the application to transfer and consolidate the District Court proceedings with the Supreme Court proceedings. Bergin CJ in Eq in her ex tempore reasons for judgment stated: "The Summons refers to a medical consumer contract for the sale of 35 custom-made dental medical devices regulated by the Therapeutic Goods Act 1989 (Cth). It also refer to the Trades Practices Act 1974 (Cth); the Fair Trading Act 1987; fraudulent representation; deceptive conduct; various sections of the Sale of Goods Act 1923; the Frustrated Contracts Act 1978 and various other claims, including medical trespass by heavy metals; installation into the body 35 times; uninformed consent; loss of chance; a claim in contract; and a claim for damages for negligent medical services as provided by the defendant. The summons also sought what seems to be an order for specific performance that the defendants remove all of the devices and related teeth. It includes a claim for an injunction to stop the nuisance of the heavy metals; trespass to the plaintiff's body; and for payment for the necessary operations to pull out all of the teeth and to eradicate the source of oxidising metals in the plaintiff's body. It also seeks an order to pay the costs of all chemical analysis of the devices so as to identify the 'toxic metals sold.' It seeks an order that the defendants fully reimburse to Medicare and the Commonwealth all past losses and all future losses involved in the plaintiff's treatments. 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 a claim for a declaration that the insertion of the devices, without the plaintiff's knowledge, and over her actual severe objection to toxic metals to be used, constituted medical trespass by metals sold and installed with no disclosure of the origin, nature, toxicity or chemical properties of the devices. There is also an application for a declaration that the plaintiff as the dental services consumer was deceived, and declarations under the Therapeutic Goods Act, together with a costs claim. There then seems to be a claim to hear the question of liability first, with quantum to be heard thereafter. There is a claim for an order that in considering the exceptionally complex nature and the 'massive volumes of the metals installed' in the plaintiff's skull between 1992 and 1997 and, 'the long duration of cumulative exposure and collection of the metals into her body, organs, the case for cancer, or any other long duration body injuries, damages, to be placed on not ready list, and until the injuries are fully exhibited, and the experts in the United States and Europe and other parts will be able to accurately evaluate the injuries suffered from those devices.' I read that as an application to mark the matter as not ready. There is then a claim that the defendants pay all losses and other expenses that the plaintiff has suffered in the case, and an application for costs. ... The Court of Appeal provided assistance to the plaintiff in outlining the steps that might be taken to assist with her claim in respect of the toxicity to be included in the District Court claim. The plaintiff has chosen not to do so, as she regards herself as being entitled under the Constitution and the Trades Practices Act and various other legislative provisions to come to this Court. It seems to me that this is a straightforward case. The plaintiff contracted with the defendants for the provision of dental services. She claims that they breach the contract by providing services that were inappropriate and in breach of their duty of care. They have admitted liability in respect of some of the work that they provided." 21So 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." 22Her Honour also referred, in detail, to the medical report of Dr Alex Selby dated 20 May 2009. After reviewing the state of the plaintiff's evidence, her Honour concluded that the state of the evidence was conclusive that there were elements of gallium and palladium and indium in some of the plaintiff's crowns but there was no evidence of any connection between the presence of those elements in the plaintiff's crown and the plaintiff's present health status. 23On 13 December 2010, the plaintiff filed an appeal against this decision to the Court of Appeal. 24There were some problems with the appeal. The plaintiff's application for transfer, which was dismissed by Bergin CJ in Eq, was an interlocutory order which required leave to appeal. On 24 June 2011, as the plaintiff did not amend the appeal to seek leave, the appeal was dismissed by Young JA on the grounds it was incompetent for want of leave: see Von Reisner v Chepurin [2011] NSWCA 162. 25On 7 July 2011, the plaintiff filed a further motion in the Court of Appeal seeking a review of Young JA's decision pursuant to s 46(4) of the Supreme Court Act 1970. In addition the plaintiff also sought reviews of various other interlocutory decisions in the Court of Appeal pursuant to s 46(4). 26The hearing seeking the review was delayed, principally on the basis of medical certificates obtained by the plaintiff to support her repeated requests for adjournment. A number of these certificates were subject to comment by Ward JA in Von Reisner v Chepurin [2012] NSWCA 418 when refusing an application by the plaintiff to vacate the hearing date for her review of the decision of Young JA. 27On 7 December 2012, the plaintiff's application to the Court of Appeal for a review of the decision of Young JA (together with other applications for review of the Registrar's decisions) was refused by McColl and Hoeben JJA: see Von Reisner v Chepurin [2012] NSWCA 422. In this decision the Court of Appeal was critical of the content and form of the medical certificates relied upon by the plaintiff to argue for adjournments during the course of the proceedings. 28The 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.

These current Common Law proceedings 29On 12 November 2010, the plaintiff filed this current statement of claim. This statement of claim seeks a consumer contract for the sale of 35 custom-made dental medical devices regulation by the Therapeutic Goods Act 1989 (Cth). It also refer to the Trades Practices Act 1974 (Cth); the Fair Trading Act 1987; fraudulent representation; deceptive conduct; various sections of the Sale of Goods Act 1923; the Frustrated Contracts Act 1978; sale of medical devices under the Therapeutic Goods Act and various other claims, including medical trespass by heavy metals; installation into the body 35 times; uninformed consent; loss of chance; a claim in contract; and a claim for damages for negligent medical services as provided by the defendants. 30There 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. 31She claims $27m in damages for aggravated and exemplary damages and compensation for 27 x $1,000,000 for each trespass to the skull, jaw and organism by 35 dental devices (para [20]). 32On 25 February 2011, the defendants filed a notice of motion seeking to dismiss these proceedings pursuant to UCPR 13.4 and 14.28. 33On 7 March 2011, the Registrar made an order that the plaintiff forward a proposed amended statement of claim to the defendants by 18 April 2011. The defendants' motion was listed on 29 April 2011 for the purposes of allocating a hearing date and the plaintiff was to serve any affidavit evidence by 27 April 2011. 34On 29 April 2011, the Registrar extended the time for the plaintiff to serve her evidence until 6 May 2011 and the matter was listed for directions on 6 May 2011. 35On 5 May 2011, the plaintiff filed a notice of motion seeking pro bono assistance in these proceedings. On 6 May 2011, the Registrar stood the plaintiff's motion for pro bono assistance over to 11 May 2011. 36On 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. 37On 26 May 2011, the Registrar made orders that the defendants were to reply to the plaintiff's letter dated 26 May 2011 by 23 June 2011 and the matter was listed for further directions on 21 July 2011. 38On 21 July 2011, the Registrar ordered the defendants to reply to the plaintiff's letter dated 26 May 2011 by 12 August 2011 and the matter was listed for directions on 22 August 2011. 39On 22 August 2011, the Registrar made an order that the plaintiff was to file any motion for discovery by 5 September 2011 and listed the matter for further directions on 12 September 2011. 40On 9 September 2011, the plaintiff served a medical report from Dr Freedman dated 8 September 2011 indicating that she was unfit to attend court for one month. On 12 September 2011, the matter was listed for further directions on 17 October 2011. 41On 17 October 2011, the matter was listed before the list judge on 18 November 2011. On 17 November 2011, Hoeben J (in chambers) vacated the hearing date of 18 November 2011 and listed the matter before the Registrar for directions on 21 February 2012. 42On 13 February 2012, the plaintiff served reports from Dr Yiannikas, consultant neurologist. Dr Yiannikas indicated that the plaintiff was undergoing investigations and was unfit to attend court until 15 May 2012. On 21 February 2012, the matter was listed for directions before Garling J on 18 May 2012. 43On 18 May 2012, Garling J adjourned the matter until 17 August 2012. On 17 August 2012, the matter was further adjourned for directions on 17 December 2012. 44On 17 December 2012, the hearing of this notice of motion was set down for hearing on 21 February 2013. 45On 31 December 2012, the plaintiff filed a notice of motion seeking to adjourn the hearing date of 21 February 2013. 46On 4 February 2013, the plaintiff's motion for adjournment came before the Registrar who listed it for hearing on 21 February 2013. 47As can be seen from a perusal of the above, these proceedings have a lengthy history of numerous adjournment applications on the basis the plaintiff was either seeking or intending to amend the proceedings, to obtain pro bono assistance or was too unwell to attend court to progress the matter. This last point has been supported by various medical certificates obtained by the plaintiff. 48A number of the medical reports relied upon by the plaintiff in these proceedings were the subject of direct comment by the Court of Appeal in Von Reisner v Chepurin [2012] NSWCA 422 (at [8], [10], [17] and [18]). McColl JA (at [23]) described the medical reports as being of a brevity of the nature criticised by Young JA in Forster v Harvey [2006] NSWSC 112. Her Honour also observed the inconsistency between the level of activity the plaintiff was able to engage in to produce various documents in the course of pursuing the appeal (as well as attending court) and the statements in the medical certificates professing the contrary in terms of her ability to attend court or engage in the proceedings. Hoeben JA comments were perhaps even more strongly expressed, describing the medical certificates "exiguous in the extreme". 49The Court of Appeal also noted the long history and specific impact on the defendants by the delay of the District Court proceedings on the basis of the medical certificates. The defendants submitted that the same such delay has been occasioned in these proceedings, with the same impact on the defendants who have been required to attend court regularly at significant expense with no actual progress of the plaintiff's claim in this Court. 50The plaintiff has been on notice that her statement of claim was defective since Bergin CJ in Eq told her so on 15 November 2010. She was directed to forward a proposed amended statement of claim to the defendants by 18 April 2011. In May 2011, she had the benefit of senior counsel's legal advice. The plaintiff has not taken any steps to amend her statement of claim and to serve an expert's report. The necessity of her obtaining such a report was emphasised by Allsop P in February 2010, albeit in the District Court proceedings. But the plaintiff has to link the injuries she says she has suffered due to the toxicity of the metals used in her mouth and she has not done so. 51In terms of progressing these proceedings the plaintiff tendered a letter dated 18 December 2012 from UNSW Global to the plaintiff concerning a request for an expert in the area of toxicology (Ex B). Professor Chris Windler records that the plaintiff came to see him about her health problems with her dental work and he suggested a scope of works for the report. The plaintiff says that she is seeking the funds to commission the report which she expects to be provided by the Federal Attorney General. She says that if she were given an opportunity to file an amended statement of claim, she could do so by the end of April 2013. 52At the hearing of the motion, this Court asked the plaintiff that if leave were to be granted for her to file an amended statement of claim, how could the Court be confident that she would do so. 53This case has been on foot since 12 November 2010. The pleading canvasses the same matters as the District Court and the Equity proceedings. The plaintiff has been ordered to file an amended statement of claim. She has not done so. The plaintiff has not outlined to this Court how she intends to refine her pleading. 54I have reached the view that if this Court granted leave to the plaintiff to file an amended statement of claim in a timely manner, she would not do so. The defendant has already been put to expense with no progress being made. In the interests of justice, I decline to grant the plaintiff leave to file an amended statement of claim. The statement of claim as currently pleaded is incomprehensible. I dismiss the statement of claim filed 12 November 2010. 55Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs of the proceedings as agreed or assessed. 56The defendants seek that their costs be payable forthwith. As these proceedings are at an end, they can follow the usual process in relation to the assessment of costs. I decline to make an order that the costs be payable forthwith.

The Court orders that: (1) The statement of claim filed 12 November 2010 is dismissed. (2) Leave is not granted to the plaintiff to file an amended statement of claim. (3) The plaintiff is to pay the defendants' costs of the proceedings on an ordinary basis as agreed or assessed.

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: 06 March 2013

Competition and Consumer Act 2012(Cth)

Disability Discrimination Act 1982(Cth)

Trade Practices Act 1974(Cth)

Trades Practices Act 1974(Cth)

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