Cohen v Sacks - [2021] NSWSC 88

Supreme Court

New South Wales

Medium Neutral Citation: Cohen v Sacks [2021] NSWSC 88
Hearing dates: 12 February 2021
Date of orders: 16 February 2021
Decision date: 16 February 2021
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
I order that:
1. The hearing listed to commence on 12 April 2021 and consent orders for case management made in December 2020 are vacated.
2. The matter is listed for hearing for 25 days commencing 28 February 2022.
3. The parties are to confer and file proposed orders for further preparation of the matter for hearing, including service of Mr and Mrs Cohen’s statements, within a reasonable timeframe after the directions hearing.
4. The matter is listed for directions before Harrison J on 5 March 2021 at 9.30am.
5. Mr and Mrs Cohen are to bear the defendants’ costs thrown away as the result of the vacation of the hearing on an indemnity basis.

Catchwords:
CIVIL PROCEDURE – Hearings – Adjournment – Application opposed – Courts power under s 66 of the Civil Procedure Act 2005 (NSW) to order an adjournment on plaintiff’s application in circumstances of financial difficulty – whether plaintiffs’ adjournment application should be granted where defendant’s professional competence attacked in medical negligence claim – where unusual combination of circumstances relied on to establish basis for adjournment – where income derived from businesses adversely affected by COVID-19 pandemic and financial position adversely affected by consequences of claimed medical negligence – adjournment granted.
EVIDENCE – Ferrcom inference – whether inference should be drawn where failure to disclose some financial information – where evidence disclosed relevant financial situation – no inference drawn.
Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 66
Competition and Consumer Act 2010 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
AON Risk Services Australia Lts v Australian National University 239 CLR 175; [2009] HCA 27
Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1993] 3 VR 863
Bomanite Pty Ltd v Slatex Corp Aust (1991) 32 FCR 379
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commercial Union Insurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Deangove Pty Limited (Receivers and Managers Appointed & Anor v Commonwealth Bank of Australia [2002] FCA 1352
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Richards v Cornford (N0 3) [2010] NSWCA 134
Sali v SPC Ltd [1993] 67 ALJR 841; [1993] HCA 47
Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332

Category: Principal judgment
Parties: Mariela Cohen (First Plaintiff)
Gregory Cohen (Second Plaintiff)
Gavin Sacks (First Defendant)
IVF Australia Pty Ltd (Second Defendant)
Representation:
Counsel:
D Williams SC (Plaintiffs)
T Sant (Plaintiffs)
M Windsor SC (First Defendant)
N Oreb (First Defendant)
A Horvath (Second Defendant)
Solicitors:
Crisp Law (Plaintiffs)
Avant Law Pty Ltd (First Defendant)
Moray & Agnew Lawyers (Second Defendant)

File Number(s): 2016/299287

Judgment

These proceedings were brought in 2016 following the…

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 88
Case: [2021] NSWSC 88
Decision Date: 16 February 2021

CaseChat Overview and Summary

Cohen v Sacks is a medical negligence claim where the plaintiff, Cohen, seeks an adjournment of the hearing due to financial difficulties. The defendant, Sacks, opposes the adjournment. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether to grant the plaintiff's application for an adjournment of the hearing under section 66 of the Civil Procedure Act 2005 (NSW), given the plaintiff's financial difficulties and the defendant's opposition. The court considered whether the unusual combination of circumstances, including the impact of the COVID-19 pandemic on the plaintiff's income and the consequences of the alleged medical negligence, justified granting the adjournment.

The court noted that the plaintiffs had provided evidence of their financial situation, despite not disclosing some financial information. The court did not draw an adverse inference against the plaintiffs under the Ferrcom inference, as the evidence disclosed was sufficient to understand the plaintiffs' financial circumstances. The court held that the unusual combination of circumstances, including the pandemic's impact and the alleged negligence's consequences, warranted granting the adjournment. The court was satisfied that the plaintiffs had established a sufficient basis for the adjournment, and the opposition from the defendant did not outweigh the need for the adjournment.

The court granted the adjournment and made an order for the hearing to be rescheduled to a later date. The court also noted that the adjournment was not intended to cause delay or prejudice to the defendant and that the plaintiffs were required to take steps to ensure that all relevant financial information was disclosed in future proceedings. The court emphasized the importance of the parties providing full disclosure and cooperation in the proceedings to ensure a fair and efficient resolution of the dispute.

Orders