Bahonko v Moorfields Community and Ors (No 4) (Ruling)

[2013] VCC 871

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
WORKCOVER DIVISION

Case No. CI-06-02573

STANISLAWA BAHONKO	Plaintiff
v
MOORFIELDS COMMUNITY	First Defendant
BODALLA AGE CARE SERVICES	Second Defendant
UNITING CHURCH IN AUSTRALIA	Third Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Fourth Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2013
DATE OF RULING:	25 June 2013 (Revised)
CASE MAY BE CITED AS:	Bahonko v Moorfields Community & Ors (No 4) (Ruling)
MEDIUM NEUTRAL CITATION:	[2013] VCC 871

RULING
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Subject: ACCIDENT COMPENSATION – application to restrain solicitors from acting – application to cross-examine

Catchwords:      Plaintiff applies to restrain defendants’ solicitors from acting – application to cross-examine deponents – cross-examination unlikely to assist – issues raised appropriately dealt with by submissions

Ruling: Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The Plaintiff appeared in person	-
For the Defendants	Mr Mr W Alstergren with Mr M J Hopooper	Lander & Rogers

HIS HONOUR:

1       The plaintiff, who appears in person, makes application that she should be granted leave to cross-examine Ms Kennedy, who has deposed in two affidavits as to the facts relied upon by the defendants in this application, Ms Lanvinia, who has submitted one affidavit in this application, and Mr Chamings of Counsel, who has not submitted any affidavit material in this application.

2       I have already indicated that I will not allow the cross-examination of any person who has not submitted an affidavit in this instance.

3       The fact that the plaintiff seeks to cross-examine Mr Chamings, who has not filed an affidavit in this instance, in my opinion, indicates that her analysis of the process of cross-examination most probably involves a misunderstanding of the purpose to which that process may be employed, as does her statement that she intends to canvass in cross-examination matters involving the history of this litigation which extends back over some seven years.

4       This is an application made by the plaintiff on the basis of material filed in a number of affidavits which make the plaintiff’s position quite clear.

5       Equally, the response by Ms Kennedy is quite clear, given the affidavits which have been filed and are relied upon by her as to the matter which arises for my determination, namely whether an order should be made that either Ms Kennedy or her firm no longer be entitled to manage this proceeding.

6       The plaintiff seeks to test by cross-examination what she asserts are deficiencies in the affidavit material relied upon by Ms Kennedy.

7       I am satisfied, having regard to the opportunity given to the parties to file affidavits, that any deficiencies in the evidence contained in those affidavits can be dealt with by way of submissions; that cross-examination (which is unusual in an application of this type) is unlikely to assist me in deciding the issues before me, and that cross-examination is more likely to involve a process which will tend to cloud the issues rather than to make the issues clearer.

8       I express this opinion, having regard to the statement made by the plaintiff that she wishes to explore in cross-examination the history of the litigation and not confine herself to the process which I have previously ruled she should be confined to in this application.

9       In the circumstances, I am satisfied that it is appropriate that I deal with the matter by confining the parties to the affidavit material filed in the matter and  hearing submissions as to that material, its adequacy or its deficiency.

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