Forster v Harvey

[2006] NSWSC 1112

CITATION:	Forster v Harvey [2006] NSWSC 1112
HEARING DATE(S):	9 October 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	10/09/2006
DECISION:	Trial to proceed in the absence of the defendant.
CATCHWORDS:	PROCEDURE [98]- No appearance by defendant- Alleged illness- Whether trial to proceed- Previous delays due to claimed illness- Medical certificates containing vague assertions- No doctor available for cross examination- No application for adjournment- Held trial to proceed in absence of defendant.
LEGISLATION CITED:	Contracts Review Act 1980 Uniform Civil Procedure Rules 2005, Pt 29, r 7
PARTIES:	Bruce Crosby Forster (P1) Janece Helene Blythe Forster (P2) Kathryn Jane Forster (P3) Michael James Walshe (P4) Emma Louise Forster Mitrovski (P5) Tony Mitrovski (P6) Linda Harvey (D)
FILE NUMBER(S):	SC 5491/05
COUNSEL:	G Carolan (P) No appearance for Defendant
SOLICITORS:	Back Schwartz Vaughan (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 9 October 2006

5491/05 – FORSTER v HARVEY

JUDGMENT

1 HIS HONOUR: This matter comes into the list as an expedited hearing. It was before Brereton J sitting as expedition Judge on four occasions. The last occasion was 25 August 2006 when it was fixed for hearing before me today for three days and his Honour said:

"Direct that the Registrar notify the defendant that the provisional hearing dates are confirmed and that in the event that an application is to be made to vacate those hearing dates, it must be made by Notice of Motion and supporting affidavit evidence and with applicant's risks as to costs".

2 The file shows that the proceedings were commenced on 20 October 2005, being a purchasers' claim for specific performance. It was pleaded by statement of claim on 9 March 2006 and the defence filed on 31 March 2006 by the defendant in person set out what she called facts and assertions which went to an alleged claim for relief under the Contracts Review Act 1980. There did not appear to be any contradiction of any facts in the statement of claim.

3 On 7 July 2006 the defendant, who evidently also goes by the name of Linda De Souza, put forward a medical certificate of a Dr Gregory Batty at Bondi Junction. This certificate appears to be in the common form issued by the doctor for people wanting to show that they were justified in staying away from work. There was a provision for the doctor to fill in words after "She is suffering from" and "Will be unfit for work up and to including". The certificate of 6 July said that the defendant was suffering from a severe respiratory tract infection and would be unfit for work up to Sunday 16 July 2006. On 18 July a similar certificate was issued by the same doctor, this time the defendant was suffering from "a medical condition" and will be unfit for work up to 19 August 2006. On 18 August the same doctor issued a certificate in the same form. This time the defendant was suffering from "medical condition/depression" and was to be unfit for work until 15 October 2006.

4 Last Friday I received by my Associate in the mail a letter from the defendant dated 6 October which says in the first paragraph: "Regrettably my mental health has suffered substantially due to a torturous experience with my next door neighbours (the plaintiffs) over a period of (3) three years causing enormous financial stress and a deterioration to my health. As a result, I am mentally drained and unfit to be subject to a formal hearing of this matter at present".

5 The letter was accompanied by a certificate in the same form from the same doctor of 5 October 2006, this time certifying that the defendant was suffering from "major depression" and would be unfit for work up to and including 14 January 2007.

6 The defendant was called three times outside the court this morning and did not appear.

7 Mr Carolan of counsel who appears for the plaintiffs has asked the Court to invoke Pt 29 r 7 of the Uniform Civil Procedure Rules 2005 permitting the court to proceed with the trial generally if a party is absent when the trial is called on. This is a power which is exercised sparingly because, generally speaking, if a person is genuinely ill or unable to take part in proceedings then the Court should adjourn the matter with the appropriate order for costs.

8 However, there are two situations where the court takes another course. The first is the situation where a party is so ill that it is unlikely even if the case is adjourned that he or she will be in any better position on the next occasion. The second is where there have previously been delays due to alleged illness of a party, the court makes it quite clear that if there is to be an application for an adjournment that must be by motion supported by affidavit yet the relevant party does not attend either with or without a medical certificate. One of the reasons for making that order is that unfortunately medical certificates appear to be very easily obtained. A party whose case is delayed by a medical certificate from the other side should have the opportunity of cross-examining the doctor concerned to ensure that the other party is as sick as she says she is. It is quite useless in that situation for the person who is not going to attend to write a letter to the court enclosing a common form medical certificate containing a very vague assertion as to the disability and not turn up herself and/or make the doctor available for cross-examination.

9 Now Brereton J made it quite clear, I would have thought, to the defendant in the Registrar's letter that she was not going to delay this case forever by proffering these medical certificates. She has chosen not to put forward her application for adjournment in proper form so that the medical evidence can be dealt with properly and, accordingly, it seems to me this is a proper case where the trial should continue.

*********************