Dariverenli v South Eastern Sydney Local Health District

[2019] NSWDC 180

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Dariverenli v South Eastern Sydney Local Health District [2019] NSWDC 180
Date of orders:	08 April 2019
Decision date:	08 April 2019
Jurisdiction:	Civil
Before:	Letherbarrow SC DCJ
Decision:	1. Stay the order of Weber DCJ SC of 14 March 2019 directing the plaintiff to attend the medical appointment with Mr Haralambous on 9 April 2019 until 13 May 2019. 2. Order that there be no order as to costs. 3. The question of who should pay the cancellation fee of Mr Haralambous is reserved for determination by the trial Judge.
Catchwords:	CIVIL PROCEDURE – stay – power to grant in relation to order of another Judge – discretionary considerations – reasonably arguable grounds of appeal
Legislation Cited:	Workers Compensation Regulation, reg 44 Uniform Civil Procedure Rules, s 67 Workplace Management Act, s 4(1)
Category:	Procedural and other rulings
Parties:	Mehmet Dariverenli (plaintiff) South Eastern Sydney Local Health District (defendant)
Representation:	Counsel: P Mooney SC (plaintiff) D Stanton (defendant)   Solicitors: Benefit Legal Lawyers (plaintiff) HWL Ebsworth (defendant)
File Number(s):	2017/00278514
Publication restriction:	None

Judgment

1. Before the Court is a motion filed today seeking a stay of his Honour Judge Weber SC's order of 14 March last that the plaintiff attend a medical appointment with a Mr Haralambous, psychologist, fixed for tomorrow. Such stay is sought until after the Court of Appeal determines the plaintiff's summons seeking leave to appeal in relation to this and another issue which was filed on 2 April last.

2. As his Honour is somewhat surprisingly named as a second respondent to the plaintiff's said summons, his Honour recused himself from determining the stay application which therefore fell to me to be determined as list judge.

3. The evidence before me is quite lengthy as have been the arguments of counsel. Nevertheless, I have attempted to come to grips with the issue as quickly as possible bearing in mind that the subject the medical examination is, as stated, fixed to take place tomorrow. Such evidence includes the plaintiff's two volume White Book filed in the Court of Appeal, as well as in this Court, the transcript of the substantive hearing before Weber DCJ SC, which so far has gone for some four days and has been stood over to 30 May next, and the motion and affidavits from an application determined by me in the substantive matter on 25 February last when I ordered the plaintiff attend a medical examination before a Mr McMahon, also a psychologist, which was fixed for 27 February last.

4. The making of Weber DCJ SC's subject order came about as a result of the plaintiff refusing to cooperate with Mr McMahon, who has refused to see him again. The plaintiff's complaint against his Honour's order as set out in the summary of argument in the White Book is that it breaches Regulation 44 of the Workers' Compensation Regulation 2016 which Mr Mooney, of senior counsel, who appears for the plaintiff, argued in effect prohibits the defendant from having the plaintiff seen by more than one forensic medical expert.

5. During argument before me Mr Mooney also submitted that such order should not be made regardless of the contents of reg 44 due to the fact that the plaintiff has already seen two psychologists and three psychiatrists in the past. Such psychologists were the Mr McMahon mentioned and a Ms Maudley, who the evidence establishes has also refused to see the plaintiff again.

6. Turning to the granting of a stay, I am satisfied that I have the power to order a stay of another judge of this Court's order pursuant to s 67 of the UCPR. The real question is whether I should exercise my discretion to do so.

7. The authorities clearly establish that an appellant's ability to identify reasonably arguable grounds of appeal is highly relevant to the exercise of the stay discretion and that their absence is likely to be a determinative consideration against the stay application. Here I have heard quite complicated submissions as to the correct interpretation of the regulation in question including as to the definition section of the regulation, compared with the definition section set out in s 4(1) of the Workplace Injury Management Act. I do not intend to repeat these arguments presently as Mr Stanton, counsel for the defendant, in effect conceded that they were reasonable. The real question is whether there is any other reason in the presence of reasonably arguable grounds of appeal which would militate against the granting of the stay.

8. Mr Stanton was not able to point to any other discretionary reasons why a stay should not be granted. One of the grounds justifying a stay is where a refusal to do so would render the appeal futile. Here, as I have said, the medical examination is to take place tomorrow. If a stay is not granted, the appeal on this ground will be futile as the plaintiff will have already attended upon the medical practitioner in question.

9. In my view, in these circumstances, a stay should be granted.

10. It is common ground that if I was persuaded to grant a stay it should be until 13 May next when the matter has its first return date before the Court of Appeal and on which occasion I am informed that it will be able to be placed before a Justice of Appeal and an extension of the stay sought.

11. Accordingly, I stay the order of Weber DCJ SC of 14 March 2019 directing the plaintiff to attend the medical appointment with Mr Haralambous on 9 April 2019 until 13 May next.

12. An issue arose at the conclusion of the argument as to the payment of a cancellation fee of some $1,250 charged by Mr Haralambous if the examination is cancelled within ten days. Mr Stanton argued that as a condition of the stay, the plaintiff should be ordered to pay that cancellation fee. Mr Mooney argued that if he is successful on the appeal, the order for the examination should never have been made in the first place. In the circumstances, I reserve the question as to who should pay the relevant cancellation fee to the trial judge.

13. It is common ground that in the circumstances that the appropriate order in relation to the costs of today's motion should be that there is no order as to costs and I so order.

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Amendments

17 May 2019 - Add order 3

Decision last updated: 23 July 2019