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Forster v Harvey

Forster v Harvey

Case [2006] NSWSC 1112 10 September 2006

Civil Litigation & Procedure

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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…

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 Forster v Harvey

Details

AGLC: Forster v Harvey [2006] NSWSC 1112
Case: [2006] NSWSC 1112
Decision Date: 09/10/2006

CaseChat Overview and Summary

The case of Forster v Harvey came before the court where Forster sought to proceed with a trial against Harvey who did not appear, citing illness as the reason. The nature of the dispute involved claims and counterclaims regarding a contractual agreement. The court was tasked with determining whether the trial could proceed in the absence of the defendant. The decision hinged on the credibility and specificity of the medical certificates presented by the defendant and the impact of previous delays caused by his claimed illness.

The primary legal issue before the court was whether the trial could proceed without the defendant's presence. This required an examination of the medical certificates provided by Harvey, which contained vague assertions of illness without specific details or medical substantiation. Additionally, the court considered the defendant's failure to arrange for a doctor to be available for cross-examination and his lack of an application for an adjournment. The court needed to balance the defendant's right to be present with the need for the judicial process to move forward and the impact of the delays on the plaintiff.

The court ultimately decided that the trial should proceed in the absence of the defendant. The medical certificates were deemed insufficiently detailed to substantiate the claimed illness, and there was no evidence of a genuine effort to make the defendant available for the trial. The repeated delays caused by the defendant's illness were also a significant factor in the court's decision. Given these circumstances, the court concluded that the trial should not be further postponed and that justice required the proceedings to continue without the defendant. This decision allowed the plaintiff to present his case and seek a resolution, despite the defendant's absence.

Orders