Excell Gray Bruni Pty Limited v Anthony Grounds; Anthony Grounds v Excell Gray Bruni Pty Limited

[2025] NSWDC 43

District Court

New South Wales

Medium Neutral Citation:

EXCELL GRAY BRUNI PTY LIMITED v ANTHONY GROUNDS; ANTHONY GROUNDS v EXCELL GRAY BRUNI PTY LIMITED [2025] NSWDC 43

Hearing dates:

18 February 2025

Date of orders:

18 February 2025

Decision date:

18 February 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

In matter 2023/00269787:

In relation to the Notice of Motion seeking a vacation of the hearing:

(1) The Notice of Motion is dismissed.

(2) Mr Anthony Grounds is to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed.

(3) The hearing commencing 18 February 2025 is confirmed.

In matter 2023/00440766:

In relation to the Notice of Motion seeking a vacation of the hearing:

(1) The Notice of Motion is dismissed.

(2) Mr Anthony Grounds is to pay the defendant’s costs of the Notice of Motion as agreed or assessed.

(3) The hearing commencing 18 February 2025 is confirmed.

Catchwords:

PRACTICE AND PROCEDURE – adjournment of hearing date – adequacy of medical certificate

Cases Cited:

Bobolasv Waverley Council [2016] NSWCA 139; (2016) 92 NSWLR 406

DacichvDPP (No1) [2020] NSWCA 297

Shawv Niru Construction Pty Ltd [2021] NSWDC 589

Category:

Procedural rulings

Parties:

2023/00269787
Excell Gray Bruni Pty Limited (Plaintiff)
Anthony Grounds (First Defendant)
Matthew Sheehan (Second Defendant)
R and M Rail Services Pty Ltd ACN 628 834 015 (Third Defendant)

2023/00440766
Anthony Grounds (Plaintiff)
Excell Gray Bruni Pty Limited (Defendant)

Representation:

Counsel:
2023/00269787
J Mack (Plaintiff)

2023/00440766
J Mack (Defendant)

Solicitors:
2023/00269787
Walsh & Blair Lawyers (Plaintiff)

2023/00440766
Walsh & Blair Lawyers (Defendant)

File Number(s):

2023/00269787
2023/00440766

Publication restriction:

No

JUDGMENT – EX TEMPORE

EX PARTE

1. Before the Court for determination is an unfiled Notice of Motion dated 12 February 2025 by Anthony Grounds seeking to adjourn the hearing date of two matters for a period of four months.  Mr Grounds is the plaintiff in the second matter before the Court today and the first defendant in the first matter before the Court today.  The Notice of Motion purports to be made in both matters.

2. Mr Grounds and the second and third defendants, Matthew Sheehan and R & M Rail Services Pty Ltd, were called outside the Court and there was no appearance by or on their behalf.

3. In support of the application made, Mr Grounds relied on an affidavit of Mr Grounds dated 13 February 2025.  That affidavit indicated in paragraph 2 that Mr Grounds was not able to attend court for four months because he was undergoing medical treatment and on the advice of his doctor. 

4. Annexed to his affidavit was a medical report by Dr Veeresh Aukhojee dated 12 February 2025 which provides relevantly as follows:

“This is to certify that Mr Anthony Grounds is currently undergoing treatment for a medical condition which precludes him from attending any court hearings for the next four months starting 12 February 2025.”

5. The Court made as Exhibit A on the unfiled application, an email chain, including an email from Mr Grounds to the Civil Registry sent on 12 February 2025 at 1.15pm in which Mr Grounds formally sought a postponement of the hearing scheduled to commence today, 18 February 2025, in both matters one and two in the list because of the medical certificate.  Part of the email chain was a responsive email from the Sydney Civil Registry to Mr Grounds' email sent on 12 February 2025 at 2.32pm indicating that the Court did not consider applications to vacate hearing dates by email and that a Notice of Motion must be filed to be heard by the list judge.  That, it appears, was what gave rise to Mr Grounds’ unfiled application in his Notice of Motion.

6. The matters were listed for hearing today by the Judicial Registrar on 13 August 2024,  several months ago.  There had earlier been a delay in the hearing date on the application of Mr Grounds due to work issues. 

7. The two matters involve issues which arose whilst Mr Grounds was an employee of the plaintiff company.  He was employed as the construction manager on a high annual salary.  The allegation of the corporate plaintiff is that Mr Grounds was involved in relation to the presentation and payment of an invoice for a large sum of money for work which was not valid and authorised and involved financial remuneration to Mr Grounds.  The corporate plaintiff dismissed Mr Grounds for alleged misconduct.  That gave rise to the two sets of proceedings in which the corporate plaintiff, Excell, sues Mr Grounds for unreturned equipment and for moneys, as well as the second and third defendants who it is alleged were involved in the inappropriate invoice.

8. Mr Grounds in his action sues the corporate plaintiff for the alleged failure to pay employee entitlements which he asserts were owing to him.

9. The application is opposed by Mr Mack of counsel who appears for the corporate plaintiff.  In the absence of Mr Grounds today, much turns on the medical certificate which is part of the evidence before the Court. 

10. The following observations may be made in relation to the medical certificate:

1. A medical practitioner is identified by name;

2. A provider number is identified in the medical certificate;

3. Although it is not entirely clear, it appears that Mr Grounds is under the care of the medical practitioner which I note has offices in and around the Albury area.  In his affidavit, Mr Grounds gives an address in Thurgoona, in New South Wales, and I note that Dr Aukhojee has a practice in Thurgoona;

4. The medical certificate asserts that Mr Grounds has a medical condition which precludes him from attending any court hearings for the next four months.  This provides some difference to some medical certificates that are supplied which merely refer to a person being unable to attend “work” for a period, whereas this report focuses on court hearings;

5. A period of claimed inability is specifically referred to in the certificate;

6. What is absent from the medical certificate is any explanation of the medical condition which is it asserted that Mr Grounds suffers from and why that medical condition precludes him from attending court to give evidence.

11. In Bobolas v Waverley Council [2016] NSWCA 139; (2016) 92 NSWLR 406 the Court of Appeal expressly considered medical certificates and the probative weight to be given to them. In the decision, McColl JA (with whom Simpson JA and Sackville AJA agreed) considered medical certificates that were criticised at first instance by Pain J at paragraphs 219 to 222 of her Honour's judgment.

12. At [221], McColl JA stated as follows:

“A medical certificate relied upon to demonstrate a litigant is unable to attend court must address 'the critical question whether, and if so, why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.”

13. The Court of Appeal decided in that case that the medical certificates in question did not address what her Honour described as the “critical question”.  It is noted that Bobolas has been referred to with approval in numerous later matters on that ground and on other grounds:  see Shaw v Niru Construction Pty Ltd [2021] NSWDC 589 at [30] per Abadee DCJ and Dacich v DPP (No 1) [2020] NSWCA 297 at [6].

14. In my view, the medical certificate of Dr Aukhojee in the present case does not deal with the “critical question” as identified in Bobolas.  While the opinion is expressed that the medical condition for which Mr Grounds is said to be undergoing treatment, precludes him from attending any court hearings for the next four months starting 12 February 2025, it does not identify what the medical condition is, and how that medical condition prevents Mr Grounds from appearing and giving evidence, and on what basis.

15. Accordingly, the Court is deprived of the means by which to consider whether the opinion in the certificate is of such a weight as to justify the vacation of the hearing date claimed.

16. For all of those reasons, the Court rejects the application to vacate the hearing date.

[His Honour then made orders.]

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Decision last updated: 06 March 2025