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

1. 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.

2. 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.

3. 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.]

4. 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:

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

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

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

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

2. Plaintiffs to provide the defendants with the following documents (foreshadowed in the plaintiffs' material to be provided to the quantum conclaves sent under cover of email dated 18 December 2020), by no later than 31 March 2021:

1. Luca Cohen's school report of 29 November 2020;

2. Luca Cohen's physiotherapy weekly reports dated 21 September 2020 - 9 October 2020; and

3. Dr Ian Andrews' letters dated June 2018, August 2018 and 26 February 2020.

3. In the event that the plaintiffs maintain that Dr Stephen Buckley should participate in the life expectancy conclave, the plaintiffs to serve any report from Dr Buckley on the issue of life expectancy by 16 July 2021.

4. Plaintiffs to serve refresher quantum evidence by 30 July 2021.

5. Defendants to serve refresher quantum evidence by 30 September 2021.

6. Plaintiffs to provide the defendants with any proposed questions, and proposed lists of material to be sent to the experts for the quantum conclaves, by 13 October 2021.

7. Defendants to respond to the plaintiffs' proposals outlined in order 7 above by 20 October 2021.

8. Parties to agree on the questions and material to be sent to the experts for the quantum conclave, by 27 October 2021.

9. Proceedings listed for directions on 5 November 2021.

10. Joint quantum conclave reports to be signed and sent to the Court by 19 November 2021.

11. Any other joint conclave report to be provided to the Court by 10 December 2021.

12. Plaintiffs to serve lay witness statements on which they intend to rely by 28 May 2021.

13. Defendants to serve lay witness statements on which they intend to rely by 9 July 2021.

14. Hearing date of 28 February 2022 (with a 5 week estimate) confirmed.

15. Liberty to apply on 3 days' notice.

**********