Erhard v Bhatia

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.