Cohen v Sacks - [2021] NSWSC 191

Supreme Court

New South Wales

Medium Neutral Citation: Cohen v Sacks [2021] NSWSC 191
Hearing dates: 05 March 2021
Date of orders: 09 March 2021
Decision date: 09 March 2021
Jurisdiction: Common Law
Before: Harrison J
Decision:
See [4]

Catchwords:
CIVIL PROCEDURE – professional negligence – directions for service of evidence

Category: Procedural rulings
Parties: Mariela Cohen (First Plaintiff)
Greg Cohen (Second Plaintiff)
Dr Gavin Sacks (First Defendant)
IVF Australia Pty Ltd (Second Defendant)
Representation:
Counsel:
M Robinson (First and Second Plaintiffs)
N Oreb (First Defendant)
A Horvath (Second Defendant)
Solicitors:
Crafers Law (First and Second Plaintiffs)
Avant Law Pty Ltd (First Defendant)
Moray & Agnew (Second Defendant)

File Number(s): 2016/299287
Publication restriction: Nil

Judgment

HIS HONOUR: These proceedings were originally listed for hearing commencing on 12 April 2021 with an estimate of five weeks. That date was vacated on the plaintiffs’ application by Schmidt AJ: see Cohen v Sacks [2021] NSWSC 88. A familiarity with her Honour’s reasons for judgment is assumed for present purposes.
The parties now seek directions for the further conduct of the proceedings in anticipation of the commencement of the hearing, now scheduled to commence on 28 February 2022. There is significant agreement among the parties about what directions are appropriate. However, the plaintiffs wish to limit the extent to which they ought to be required to serve evidentiary statements, citing as the reason the same impecuniosity that generated their original application to vacate the hearing dealt with by Schmidt J and an associated desire to limit expenditure on legal costs as much as possible and for as long as possible.
Her Honour’s judgment at [74] is in these terms:

“[74] Of concern to the defendants was that Mr and Mrs Cohen and Dr Sacks had not yet served their statements. The vacation of the hearing should not result in a delay in the preparation and service of those statements. The parties must also confer about other orders necessary to prepare the matter for the 2022 hearing. It will be listed before Harrison J on 5 March 2021 for further directions.” [Emphasis added.]

Doing the best I can, having regard to her Honour’s expressed concern that the vacation of the hearing should not result in a delay in the preparation and service of the statements of Mr and Mrs Cohen, as well as the statement of Dr Sacks, and taking account of the plaintiffs’ own very difficult financial position, I consider that the following orders should be made:

Plaintiffs to comply with the outstanding subpoenas by no later than 31 March 2021, as follows:

paragraphs 1, 2, 3, 4 of the subpoena issued 21 May 2020 to the second plaintiff;

paragraphs 2, 3, 5, 6 of the subpoena issued 12 October 2020 to the second plaintiff;

paragraphs 2, 3, 5, 6 of the subpoena issued 12 October 2020 to the first plaintiff.

Plaintiffs to provide the defendants with the following documents (foreshadowed in the plaintiffs' material to be provided to the quantum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cohen v Sacks

Details

AGLC: Cohen v Sacks [2021] NSWSC 191
Case: [2021] NSWSC 191
Decision Date: 09 March 2021

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Cohen, the plaintiff, brought an action against Sacks, the defendant, alleging professional negligence. The case centred on whether Sacks, an accountant, had provided proper advice leading to financial losses for Cohen. The court was tasked with determining the appropriate procedural steps to ensure that Sacks was served with the necessary evidence to defend himself against Cohen's claims. The dispute arose from Cohen's assertion that he suffered significant financial loss due to allegedly inadequate accounting advice given by Sacks. The matter involved a complex evaluation of professional standards and the effectiveness of the communication of advice between the parties.

The primary legal issue before the court was the correct method of serving evidence on the defendant, Sacks, particularly in the context of an interstate action. Cohen sought an order for service of evidence outside the jurisdiction of New South Wales, given that Sacks resided in Queensland. The court needed to consider the provisions of the Uniform Civil Procedure Rules 2005 (NSW) and the relevant case law to determine whether the application for service of evidence was properly made and justified. The court was also required to assess whether the application met the necessary criteria for an extension of time for service.

The court examined the procedural rules and determined that the application for service of evidence was indeed valid. It found that Cohen had acted promptly and reasonably in seeking to serve the evidence and that the delay was not due to any fault on his part. The court held that the application satisfied the requirements of the relevant rules and granted the order for service of evidence. Additionally, the court noted that Sacks had not opposed the application, which further supported the granting of the order. The decision underscored the importance of adhering to procedural rules in interstate litigation and ensuring that evidence is served in a timely manner to facilitate a fair trial.

Orders