Erhard v Bhatia - [2002] NSWCA 388

NEW SOUTH WALES COURT OF APPEAL

CITATION: Erhard v Bhatia [2002] NSWCA 388 revised - 3/12/2002

FILE NUMBER(S):
40487/01

HEARING DATE(S): 04/11/02

JUDGMENT DATE: 03/12/2002

PARTIES:
Bente Ravelle Erhard (Appellant)
Satya Pal Bhatia (Respondent)

JUDGMENT OF: Sheller JA Heydon JA Campbell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5823/99

LOWER COURT JUDICIAL OFFICER: Bowden ADCJ

COUNSEL:
Mr K P Rewell/Ms A Beardow (Appellant)
Mr S D Kalfas (Respondent)

SOLICITORS:
Kells The Lawyers (Appellant)
Mr David Brown (Respondent)

CATCHWORDS:
Courts - inferior courts - administration of justice - case management - right to be heard - dismissal of case for want of appearance - application for setting aside dismissal order - whether proper - relevant matters - paramountcy of administration of justice - D

LEGISLATION CITED:

DECISION:
See paragraph 70

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40487/01
DC 5823/99
SHELLER JA
HEYDON JA
CAMPBELL J
3 December 2002

ERHARD v BHATIA

Courts – inferior courts – administration of justice – case management – right to be heard – dismissal of case for want of appearance – application for setting aside dismissal order – whether proper – relevant matters – paramountcy of administration of justice

The plaintiff underwent several surgical procedures to effect a change from male to female gender. She initiated proceedings in negligence against the operating surgeon in the District Court of New South Wales in relation to his performance of those procedures.
The District Court Rules provided for certain case management procedures. One procedure required a Registrar, on a “review date” or at a “status conference”, to be satisfied of parties’ readiness for trial in compliance with the Rules. If not so satisfied, the Registrar could refer the matter to a Judge for directions, or the action would be liable to being “struck out (or worse)”: Practice Note 33. On 4 April 2000 the plaintiff’s case was stood over by a Registrar for directions before McLachlan ADCJ on 23 May 2000. McLachlan ADCJ dismissed the action pursuant to Pt 18 r 3(1) of the Rules for want of appearance by the plaintiff. Under Pt 18 r 3(4) an application by any party could be made to have that order set aside. A Notice of Motion seeking such an order was returned before Bowden ADCJ on 7 July 2000 but the motion was dismissed.
A second Notice of Motion was heard before Bowden ADJC on 8 June 2001. Pt 18 r 3(4) had by then been replaced by Pt 1 r 7A which required applications to set aside dismissal orders to be made within 28 days of the order setting proceedings aside. Bowden ADCJ dismissed the second motion on grounds including that an extension of time would be required under Pt 1 r 7A for the plaintiff to be able to apply for an order setting aside McLachlan ADCJ’s order. The plaintiff obtained leave to appeal against Bowden ADCJ’s second decision. On appeal, she argued that even if an…

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 Erhard v Bhatia

Details

AGLC: Erhard v Bhatia [2002] NSWCA 388
Case: [2002] NSWCA 388
Decision Date: 3 December 2002

CaseChat Overview and Summary

This case concerned an appeal from a decision of the District Court of New South Wales, where the plaintiff, Erhard, sought to have an order dismissing her case for want of appearance set aside. The original dismissal order was made by McLachlan ADCJ, and the application to set it aside was heard by Bowden ADCJ.

The primary legal issues before the court were whether the discretion to set aside the dismissal order had been properly exercised by Bowden ADCJ, and whether the plaintiff had further medical evidence to serve, which was a crucial factor in determining the application. The court also considered the plaintiff's submission that if the trial judge inferred further medical evidence was to be served, that inference was incorrect, and if no such inference was made, the observation was irrelevant.

The court reasoned that the trial judge's apparent view that the plaintiff would have failed even if her legal representative had been present constituted an error requiring the discretion to be re-exercised. The presence or absence of further medical evidence was a critical consideration. The plaintiff's solicitor's affidavit stated readiness for hearing, while the defendant's counsel had raised concerns about outstanding psychiatric evidence. The court noted that the plaintiff's counsel had not expressly addressed this outstanding matter in submissions to Bowden ADCJ, and the defendant's counsel argued that the affidavit was merely an assertion. However, the court also observed that the material was not objected to and the deponent was not cross-examined.

The court found that the trial judge's apparent view that the plaintiff would have failed even if her legal representative had been present was an error requiring the discretion to be re-exercised. The court determined that the issue of whether the plaintiff had further medical evidence to serve was a potentially crucial one that required resolution. The court ultimately ordered that the appeal be allowed, the orders of Bowden ADCJ be set aside, and the matter be remitted to the District Court for re-hearing of the application to set aside the order of dismissal.

Orders

Orders of the court

See paragraph 70

Background

Background to the litigation

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Evidence

Evidence Before The Court

If there were no other matter of which complaint could be made, the trial judge’s apparent view that the plaintiff would have failed before McLachlan ADCJ even if her legal representative had been present was an error requiring that the discretion be re-exercised.Was there further medical evidence to be served? In his second judgment, Bowden ADCJ said:“The affidavit of 11 April 2001 states that the plaintiff is ready to take a hearing date, but from the particulars provided and the schedule of medicals that have been served one could infer that the plaintiff has further medical evidence to serve.”The plaintiff submitted that if the trial judge did infer that, he was wrong to do so in view of the affidavit of the plaintiff’s solicitor saying she was ready to take a hearing date, since the only person who suggested to the contrary was counsel for the defendant; and if the trial judge did not infer that there was further medical evidence to serve, the observation was irrelevant. It is clear that if the plaintiff had further medical evidence to be served, that would have been a factor strongly militating against her application to have McLachlan ADCJ’s order set aside. If, on the other hand, the matter was ready for trial so far as the plaintiff was concerned, that would have been a factor strongly favouring her application, particularly in view of Bowden ADCJ’s finding that no actual prejudice to the defendant had been shown. The issue was thus, in this case, a potentially crucial one, calling for resolution. Argument in this Court centred on the following three passages. First, in the affidavit of the solicitor for the plaintiff dated 11 April 2001, paragraph 9 stated:“The Plaintiff has now obtained a suitable medical expert’s report which has been served. Particulars have been provided to the defendant and the Plaintiff is in a position to take a Hearing date in this matter.” Towards the end of the oral argument of counsel for the defendant before Bowden ADCJ, the following was put:“Now there is a further matter. There is no evidence or insufficient evidence that this matter is really ready to take a hearing date. There is the bare assertion of [the plaintiff’s solicitor] that the plaintiff wants to claim for psychiatric damage and your Honour will see from the affidavit of [the solicitor for the defendant’s insurer] that she was told on 8 February when the matter was in for review that the plaintiff was proposing to serve psychiatric evidence. No such evidence has been served.” In the course of his final address, counsel for the plaintiff before Bowden ADCJ said:“The circumstances of justice in this case, in my submission, would require the matter be reinstated, the plaintiff now having satisfied the areas which were in default and the matter proceed. All other issues, namely whatever prejudice may have been caused to the defendant having been adequately addressed.” Counsel for the defendant in this Court said of his predecessor’s submission: “there were matters raised by counsel for the defendant before his Honour which weren’t contradicted”. He said of counsel for the plaintiff’s submission to Bowden ADCJ: “he doesn’t expressly address the question of psychiatric evidence which was raised as an outstanding matter or potentially outstanding matter by the defendant.” And he said of the assertion in the affidavit that it was only an assertion “by way of submission”. However, the material was not objected to, and the deponent was not cross-examined on it. Counsel for the defendant said to this Court: “the nature of these hearings is such that there are a great many matters to be dealt with and if the consequence for this Court is that that’s an inappropriate course for the District Court to adopt the reality is that there is not in my experience any cross-examination of witnesses on their affidavits.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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