Cavar v Workers Compensation Commission

[2019] NSWSC 445

Supreme Court

New South Wales

Medium Neutral Citation:	Cavar v Workers Compensation Commission [2019] NSWSC 445
Hearing dates:	18 April 2019
Date of orders:	24 April 2019
Decision date:	24 April 2019
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1) Adjourn the defendants’ notices of motion for hearing before the Duty Judge on Friday 28 June 2019. (2) Direct the defendants by no later than 26 April 2019 to notify the plaintiff of the adjourned date. (3) Reserve the costs of the proceedings before me on 18 April 2019. (4) Grant liberty to the parties to apply on 3 days’ notice.
Catchwords:	PRACTICE AND PROCEDURE – where plaintiff is self-represented – where defendants seek orders that the proceedings be dismissed or struck out – where day before the hearing of the defendants’ motions the plaintiff indicated she would be unable to attend the hearing due to a medical condition – whether proceedings should be dismissed in the absence of the plaintiff – hearing of defendants’ notices of motion adjourned.
Legislation Cited:	Uniform Civil Procedure Rules 2005 NSW, 13.4, 14.28
Category:	Procedural and other rulings
Parties:	Celia Celija Cavar (Plaintiff) Workers Compensation Commission (First Defendant) I Care Insurance & Care NSW (Second Defendant)
Representation:	Solicitors: Crown Solicitor’s Office (First Defendant) Stiles Lawyers (Second Defendant)
File Number(s):	2019/89613
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By relevantly identical notices of motion each filed on 5 April 2019, the defendants seek orders pursuant to UCPR 13.4 that the proceedings be dismissed or alternatively pursuant to UCPR 14.28 that they be struck out. The proceedings were commenced by summons seeking leave to appeal filed on 18 March 2019. By that summons the plaintiff challenges the orders of Judicial Registrar Howard in the District Court of New South Wales dismissing her proceedings in that Court pursuant to UCPR 13.4.

2. The pleading that was the subject of Registrar Howard’s consideration was an amended statement of claim filed in the District Court on 20 September 2018. That document is difficult to understand and not easily summarised. Despite these problems, it conspicuously fails on one view to identify or plead a comprehensible cause of action against any identifiable party. The alleged role of the defendants in anything referred to in the body of the document is impossible to detect. If the plaintiff has a legitimate grievance against any parties at all, the amended statement of claim does not reveal who they are or even who they might be.

3. Prior to the matter coming before me at 10am on 18 April 2019, the plaintiff wrote to the Court indicating that she was unable to attend as she was to be undergoing an operation on that day. No medical certificate was provided but her statement was consistent with what she had indicated to the Registrar on a previous occasion.

4. The defendants both contended that the proceedings in this Court are destined to be disposed of favourably to them, whether that were to occur sooner or later, and that the interests of justice are best served if costs are contained and the proceedings are immediately dismissed. That was said to be so even though the plaintiff appears reasonably to have explained her absence.

5. While I have considerable sympathy for that view, there is in my experience in cases such as this a possibility approaching comfortable satisfaction that an order disposing of the proceedings in the absence of the plaintiff will not in fact bring them to an end. Without wishing to appear to have formed any concluded view about the possibility that the plaintiff might not be content finally to accept orders made in her absence, particularly when a medical reason for her position has been offered, I think that it would be preferable to relist the matter on a day when the plaintiff could attend court and participate in the court process, whatever might be its eventual outcome.

6. The plaintiff has asked that the matter not be listed before July. The defendants are not suffering any prejudice from further delay beyond that which they have sustained by being named as parties to litigation which they contend is utterly hopeless. I will in those circumstances make no orders beyond the following:

1. Adjourn the defendants’ notices of motion for hearing before the Duty Judge on Friday 28 June 2019.

2. Direct the defendants by no later than 26 April 2019 to notify the plaintiff of the adjourned date.

3. Reserve the costs of the proceedings before me on 18 April 2019.

4. Grant liberty to the parties to apply on 3 days’ notice.

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Decision last updated: 24 April 2019