Jones v Phelps and Tobin (Ruling No 4)

[2011] VCC 1507

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

MEDICAL DIVISION

Case No. CI-03-07747

DESMOND JONES	Plaintiff
v
GRANT PHELPS	First Defendant
and
STEPHEN TOBIN	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF RULING:	4 November 2011 Jones v Phelps and Tobin (Ruling No 4)
[2011] VCC 1507

RULING

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Catchwords: Adequacy of evidence as to incapacity of self-represented plaintiff to attend trial.

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HIS HONOUR:

1          My ruling is required as to the application made on behalf of the defendants for leave to cross-examine the plaintiff’s treating general practitioners with respect to the certificates issued by them as to the plaintiff’s incapacity to prepare for and conduct a trial in this proceeding during the balance of the year.

2          The recent history of this proceeding, insofar as it is relevant to the present application, commences with a medical certificate filed by the plaintiff on 24 January 2011 from Dr Raymond Chan, a general practitioner practising at the Yarrawonga Medical Clinic (the clinic) which stated that the plaintiff was –

“… currently not medical[ly] well enough to attend court. By April he

should be fit to attend court.”

(sic)

3          In response to the filing of the certificate, the plaintiff was advised by my Associate by email dated 25 January 2011[1] that –

“… having regard to the protracted history of this proceeding and the fact that the proposed directions hearing has been convened in order to deal with the stance you have taken in objecting to the discovery of the documentation sought by the defendants, his Honour requires a medical report from your general practitioner which sets out in more detail the nature of the medical condition which prevents you from attending the hearing, before he will consider adjourning the hearing date.”

[1]             Given that the plaintiff is self-represented and that he has repeatedly refused to attend directions hearings in the proceedings on the grounds of asserted ill health, in order to maintain procedural fairness I have considered it appropriate that the practice adopted within the Medical List in which communications between the Court and the legal representatives of litigants (insofar as those communications involve matters of trial management), is conducted by letter or email through my Associate, be applied to communications with the plaintiff.

4          The plaintiff’s response to this email was to assert by email dated 8 February 2011 that he had consulted a number of medical practitioners at the clinic who had advised him that the certificate which he had provided was –

“… in order and they saw no good reason to provide any more. It was also noted that the judge’s behaviour was putting in danger my chances of being fit by April.”

5          By letter dated 9 May 2011, the plaintiff advised that between 16 May and 4 June 2011, he would be holidaying overseas. At the same time he stated that his health was being adversely affected by the conduct of the litigation and in particular, the behaviour of the defendants in the management of the litigation.

6          The trial in this matter was fixed for hearing on 26 July 2011.

7          By email dated 11 May 2011, my Associate:

(i)	Enquired of the plaintiff whether he wished to apply to have the trial date adjourned on medical grounds, and advised the plaintiff that if he wished to do so he should advise both the Court and the defendants of his intention without delay;
(ii)	Informed the plaintiff that if he wished to avail himself of the opportunity, the Court had made arrangements for him to consult with Mr Robin Gorton QC, who had agreed at the request of the court to provide advice to the plaintiff on a pro bono basis as to the defence taken by the defendants in this proceeding pursuant to the provisions of the Accident Compensation Act.

8          In an email dated 14 May 2011, the plaintiff said:

[2]             No such certificate was subsequently produced by the plaintiff.

(i)	that he would avail himself of the opportunity of conferring with Mr Gorton upon his return from the Solomon Islands to which he was travelling in early June 2011;
(ii)	that he wished the trial date of 26 July 2011 to be postponed, commenting: “I am booked for a day procedure at Wodonga Hospital on 10 June with my treating gastroenterologist, Dr Shanahan, and will obtain certificate then”.[2]

9          On 17 June 2011, my Associate advised the plaintiff by email that his attendance at a directions hearing on 24 June 2011 was essential if the trial fixed for 26 July 2011 was to be maintained.

10        By email dated 22 June 2011, the plaintiff stated that there was no realistic chance of his being ready for the trial of 26 July 2011.

11        By email dated 23 June 2011, the plaintiff stated that he was not well enough to attend Court or to prepare for Court. The plaintiff failed however to provide any medical material which supported this statement.

12        On 24 June 2011, the plaintiff attended a directions hearing and within minutes left the Court, stating he was too unwell to continue with that process.

13        On 14 July 2011, the solicitors for the defendants wrote to the plaintiff a letter in the following terms:

“We refer to your email to us dated 6 July 2011 in which you stated ‘I am not in a position to meet Judge Saccardo’s ridiculous directions and am unfit to prepare and attend court on 26 July’.

If you seek to vacate the trial date you must do so by application to his Honour supported by affidavit. We will require the deponents of your affidavits to be available on the hearing of your application to be cross- examined as to their affidavits.

In the event that you are successful on any application to vacate the trial, we will request an order that you pay the defendants’ costs thrown away by reason of such vacation.

If there is no order of the Court vacating the trial and you fail to attend the Court for the trial on 26 July 2011, we will ask the Court to determine the proceeding in your absence.”

14        On 19 July 2011, my Associate wrote to the plaintiff an email which, in addition to dealing with other matters, contained the following statement:

“If you seek to have the trial of this matter adjourned on medical grounds you must provide the Court with a medical certificate which sets out clearly the precise nature of the medical condition from which you suffer and confirms that the medical condition is such that it presently incapacitates you from attending and managing your trial and if so, the likely duration of that incapacity.

Upon receipt of such a certificate, his Honour will consider whether there are sufficient grounds for the trial to be adjourned and further, before such an order is made the author of the certificates should attend for cross-examination in accordance with the request made by the defendants’ solicitors that this occur (see the letter dated 14 July 2011 which is annexed to this email).”

15        On 20 July 2011, an order was made vacating the trial date of 26 July 2011 by reason of notice being given on behalf of the second-named defendant that he sought to amend his pleadings. At the same time the plaintiff was asked to make enquiries of his proposed witnesses for the purpose of refixing the trial during the months of September, October or November 2011. As at this time, no medical material had been filed by the plaintiff in support of his assertion that the trial date of 26 July should have been vacated on medical grounds.

16        On 1 August 2011, a new trial date was allocated for the matter, being 28 October 2011.

17        By email dated 8 August 2011, the plaintiff advised that:

“I am suffering from depression and unable to attend court until at least end October 2011. Since then I have been very ill suffering from fever, body pains, extreme headaches etc. and have been in bed for much of the time. Blood tests and cultures are still being done (suspected bacteria infection) and have further tests and medical appointment this week. I am starting to feel a bit better and hopefully this continues (I have been really out of action). I am also receiving increased medication and counselling for depression and am not in a position to prepare for court case (my concentration levels are extremely low and [I] continue to make stupid mistakes – even reading the paper at the moment is a chore).

As well my son marries a girl from Solomon Islands in Ballarat on 18 November 2011. We will be hosting his fiancée and her parents from 1 November plus other wedding party members shortly after that. I am not available for court until 29 November (which would really be pushing it) and also request the case be held at Wangaratta. Sorry about the delay in getting to you but I have been extremely ill.”

(sic)

18        The above email was accompanied by a medical certificate from Dr Syed R Huq, a medical practitioner practising at the clinic, to the following effect:

“This is to certify that: Mr Desmond Jones has been suffering from depression and [is] currently unable to attend court. His anticipated date of return to court is end of October 2011.”

(sic)

19        By letter dated 9 August 2011, the solicitors for the defendants advised the Court that they wished to contest the content of the certificate provided by Dr Huq and sought an order that the medical records of Dr Huq relating to the plaintiff be produced to the defendants and that they be given leave to cross- examine Dr Huq.

20        On 10 August 2011, the following Order was made in the proceeding:

“(1)

In the absence of the plaintiff within Twenty One days providing a medical report from Dr Syed Huq of the Yarrawonga Medical Clinic, which reports as to:

(i)	The precise nature of medical condition which presently incapacitates the plaintiff;
(ii)	the basis upon which:

(a)	the diagnosis of the presence of the medical condition;
(b)	the severity of the medical condition;
(c)	the duration of the incapacity caused by the medical condition

was arrived at by Dr Huq;

(iii)    the way in which the medical condition incapacitates the plaintiff from preparing and presenting his case which is fixed for hearing on 29 October 2011

the trial date of 29 October 2011 is not vacated and the matter is

to proceed on that date.

(2) Upon the plaintiff providing a report from Dr Huq which complies with the provisions of Order 1 hereof, liberty is reserved to the defendants to apply to the Court for orders with respect to the production of the plaintiff’s medical records held by the Yarrawonga Medical Clinic and to cross-examine Dr Syed Huq.”

21        By email dated 26 August 2011, the plaintiff stated:

“I refer to previous correspondence in regard to this matter. As previously advised (along with written confirmation from treating doctor) I am not fit to attend or prepare for court until the end of October. Therefore I am unable to attend for directions hearing next Monday. I do not wish to place my life in jeopardy. I have also advised the court that I am unavailable for trial in November due to son’s wedding etc. Clearly if I am not fit to prepare or attend court until end of October then there is no way possible that I can be ready for trial this year. … .”

22        By email dated 26 August 2011, my Associate advised the plaintiff that should he:

“… fail to obtain a report from Dr Huq in the terms set out in the Order dated 10 August, the hearing date for the trial of 28 October will not be vacated …”.

23        At the same time a copy of the Order made 10 August 2011 was forwarded to the plaintiff.

24        In an email dated 26 August 2011, the plaintiff stated:

“How stupid or corrupt is Judge Saccardo. He has a certificate from Dr Huq and also advice of my unavailability for court in November. Does he want me to end it all by committing suicide? It can be arranged … .”

25        By email dated 2 September 2011, the plaintiff stated:

“I wish to advise I am about to be emergency transferred to Wodonga Hospital following months of ill health and weeks of high temperatures, aches, fever, pain etc. for more emergency tests and treatment for possible septosemia (sic). …

I have been very ill and am extremely weak and if fortunate enough to recover will take a long time. … .”

26        On 5 September 2011, my Associate communicated with the plaintiff by email in the following terms:

“His Honour has asked me to advise you that if you wish to rely on the grounds of ill health as a reason for failing to comply with any order made by the Court, it is essential that you support those grounds with appropriate medical advice. … .”

27        By email dated 14 September 2011, the plaintiff stated:

“I have just had a week in the Wodonga Hospital with septosemia (sic) …

I have been very ill and suffering for past three months and am very weak. My balance, concentration, strength etc. have been severely compromised and face a long recuperative and recovery process and time. At least I now know why I have been really struggling in recent times, however original infection has not yet been confirmed despite a barrage of tests (ongoing) although gastritis is a suspect. It is not certain whether it may return. I enclose certificate from treating doctor, Dr Cai of Yarrawonga Medical Clinic stating that I am unable to attend court until end December 2011 (hopefully will have recovered by then). … .”

28        Appended to the plaintiff’s email was a medical certificate from Dr Frankston Cai, a general practitioner practising at the clinic, in the following terms:

“This is to certify that: Mr Desmond Jones has a recent episode of septicaemia, pneumonia and was just discharged home from Wodonga Hospital. He also has depression and chronic diarrhoea, gastritis and splenectomy. The patient is currently unable to attend court. His anticipated date of return to court is end December 2011.”

29        By email dated 19 September 2011, the plaintiff stated:

“In regard to why the latest certificate is signed by Dr Cai – at the start of August when I was extremely unwell I tried to make an appointment with Dr Huq but there was none available and I was able to see Dr Cai that day. He then followed through with numerous blood and other tests and contact etc. (including calling me at 9.30 pm on Friday night in view of how ill I was). Thankfully I now have caring GPs at one practice who I have great confidence in. I am still unwell and very weak and have little chance of being fit enough to attend or prepare for court until the new year and do not need this latest aggravation. … .”

30        On 23 September 2011, I made the following ruling which was distributed to the parties via email on that date:

“ It is clear from the plaintiff’s email of 19 September 2011 that he has received the letter from John Ball and Sons dated 15 September 2011. In his email the plaintiff states that he opposes the application made on behalf of the defendants that Dr Huq and Dr Cai be required to give evidence as to the level of, and duration of, the plaintiff’s incapacity to attend to the management of his trial.

An earlier application made on behalf of the defendants that Dr Huq be required to give evidence explaining the grounds upon which he based his medical certificate that the plaintiff was unfit on medical grounds to manage his trial was declined however orders were made on 10 August 2011 which required the plaintiff to obtain a medical report from Dr Huq which justified the position set out by him in his medical certificate.

The effect of the orders made 10 August 2011 was not to require Dr Huq to attend the Court for cross-examination, but was to require the plaintiff to provide a medical report from Dr Huq as to the precise nature and severity of the medical condition which incapacitated the plaintiff in circumstances in which the defendants took issue with the certificate of Dr Huq.

Notwithstanding that the orders of 10 August were both emailed to the plaintiff and sent to him by registered mail, the plaintiff did not respond to the orders nor did he comply with the orders.

It follows that the Order made on 10 August that the trial date was to be maintained should the plaintiff fail to furnish the court with a medical report from Dr Huq, continued to have effect as at 14 September 2011.

Subsequently, by email dated 2 September 2011 the plaintiff advised the
Court that he was to be admitted to Wodonga Hospital.

On 14 September 2011, the plaintiff forwarded to the Court a medical certificate from Dr Cai which stated:

‘Mr Desmond Jones has a recent episode of septicaemia, pneumonia and was discharged home from Wodonga Hospital. He also has Depression and chronic diarrhoea, gastritis and splenectomy. The patient is currently unable to attend court. His anticipated date of return to court is end of December 2011.’

Given the receipt of this material the issue again arises as to whether the trial date in this proceeding should be vacated on medical grounds.

Following the service by the plaintiff of the medical certificate issued by Dr Cai a further application has been made on behalf of the defendants by letter dated 15 September that Dr Huq and Dr Cai be required to give evidence explaining the grounds upon which their medical certificates were issued.

It is clear that the defendants continue to take issue with:

(i)        The statements made by the plaintiff as to the extent of his incapacity to prepare for and present his case;

(ii)       The adequacy of the medical evidence provided by the plaintiff in support of his application that the trial be adjourned;

and that they wish to challenge the validity of the certificates issued by
Dr Huq and Dr Cai.

Given the position of the defendants in this regard when considered in the context of:

• The plaintiff’s election not to furnish a medical report in accordance with the Order of 10 August 2011;

• The protracted history of this litigation and the previous applications which have been made to vacate direction hearings and the trial of this matter on medical grounds which have never been supported by the provision a medical report which describes, with particularity, the nature and extent of the plaintiff’s incapacitating illness;

• The issue taken by the defendants as to the adequacy of the medical material provided by the plaintiff in support of his application to adjourn the Trial;

the parties are entitled to be heard on the issue as to whether an order should be made requiring Dr Huq and Dr Cai to give evidence justifying the medical certificates which they have issued.

Given the content of the certificate of Dr Cai however, it is appropriate, if submissions are to be made as to this issue, that they be made by way of written submission.

Before making such an order however it is appropriate that the plaintiff be given the opportunity to obtain and provide a medical report from his current treating doctor which addresses the issues raised by the order of the 10 August 2011 (a copy of which is attached to this email) namely:

(i)       the precise nature of the medical condition which presently incapacitates the plaintiff;

(ii) (a) the diagnosis of the presence of the medical condition;

the basis upon which – (c) the duration of the incapacity caused by the medical condition;

which presently incapacitates the plaintiff was arrived at.

The provision of such a report may result in a ruling against the defendants’ application that Dr Huq and Dr Cai be required to give evidence to further explain and justify their medical certificates, and an Order being made that the trial is to be adjourned.

The plaintiff is to advise the court by no later than 4 pm on Wednesday 27 September whether he intends to seek a Medical report referred to above.

Equally, if for some reason the plaintiff anticipates that he will have difficulty in obtaining such a medical report he should make the nature of that difficulty known to the Court within the timeframe stipulated above.’”

By email dated 23 September 2011, the plaintiff stated that he relied on the medical certificates which he had provided and that he was not available for trial on medical grounds this year.”

31        On 23 September 2011, my Associate sent an email to the plaintiff in the following terms:

“Would you please ensure that by no later than Wednesday, 27

September you advise:

(1)	whether you intend to seek a medical report from your treating doctor which deals with the matters raised in my email;
(2)	alternatively, whether there is any reason why you anticipate you would have difficulty in obtaining such a medical report.

In the absence of such a response, his Honour will direct that the defendants provide written submissions as to their application to cross- examine Dr Huq and Dr Cai and thereafter you will be given the opportunity to respond to those submissions.”

32        By email dated 27 September 2011, the plaintiff stated that the doctors at the clinic:

“… have strongly expressed the view that the certificates are more than

enough for the Court and are also amazed at the attitude of the judge …

and commented further:

In view of my medical status and advice I will be not chasing up reports and am not available for trial in October-November. ….”

33        On 7 October 2011, an affidavit in support of the application by the defendants that they have leave to cross-examine Dr Huq and Dr Cai was filed and served upon the plaintiff.

34        On 12 October 2011, an Order in the following terms was made vacating the trial date of 28 October 2011:

“By affidavit dated 7 October 2011, the defendants seek leave to cross- examine the plaintiff’s treating general practitioners with respect to the certificates issued by them as to the incapacity of the plaintiff to prepare for and conduct the trial fixed in this proceeding on 28 October 2011.

By email dated 12 October 2011, the plaintiff has advised the Court that he wishes to respond to this application now made by the defendants.

I consider it appropriate that the plaintiff be given the opportunity to respond in writing to the material relied upon by the defendants and I direct that he do so by email directed both to the defendants and to the Court, delivered no later than 4.00 pm on 19 October 2011.

Given the fact that the trial is fixed for hearing on 28 October 2011, I consider it appropriate at this stage to vacate the trial date. I take this course for the following reasons:

(i)       Should I give effect to the defendants’ application, it follows that arrangements will be required to be made after 19 October 2011 for the attendance of the plaintiff’s general practitioners to be cross-examined as to the content of the medical certificates supplied by them. Given that the medical practitioners are entitled to adequate notice, I cannot see that this process could be undertaken and completed within the time which would allow the parties to prepare adequately for the trial should a finding be made that the certificates issued by the medical practitioners cannot be relied upon by the plaintiff;

(ii)      I am cognisant of the fact that before the trial commences a preliminary point must be determined by the trial judge as to the ability of the plaintiff to rely upon medical reports which he has served in this matter and that, should this point be determined against the plaintiff, this in itself would be likely to present a significant obstacle to the trial proceeding.

For these reasons it seems to me to be inappropriate that the present trial date should be maintained in circumstances in which there is a real likelihood that the trial will not be in a position to proceed.

Although I have vacated the trial date of 28 October 2011, given the issue taken by the defendants as to the capacity of the plaintiff to prepare for and conduct a trial at the present time or during the balance of the calendar year, I am not satisfied that I should make an order that either the trial or the preliminary point raised by the defendants should not be refixed for hearing this year. These are matters upon which I am not in a position to make a ruling until I have delivered a ruling as to whether the defendants should be given the leave they seek to cross- examine the plaintiff’s general practitioners and, in the event that such leave is granted, that process has been completed.

In the absence of having heard from the parties as to the matters the subject of this ruling, I reserve liberty to apply.”

35        It follows that the history of this proceeding since 24 January 2011 involves:

(i)	The provision by the plaintiff of three medical certificates authored by three different general practitioners from the Yarrawonga Medical Clinic the effect of which has been such as to declare the plaintiff unfit to attend Court throughout the 2011 calendar year other than for a period of approximately three and a half months between April and mid July 2011;
(ii)	The repeated failure by the plaintiff to comply with orders, directions or requests made by the Court that he provide a medical report from his treating medical practitioner which clarifies the extent and nature of his illness and the level and duration of his incapacity.

36        Having regard to the fact:

• That at the time at which the proceeding was fixed for trial in July and October this year the plaintiff asserted his incapacity to attend Court on medical grounds which were justified by the provision by the plaintiff of medical certificates which contained negligible information;

• That the lack of information in this respect was compounded by a refusal by the plaintiff to provide a medical report which complied with both the order made 10 August 2011 and my Ruling of 23 September 2011;

I find myself in a position in which I am unable to arrive at an informed opinion as to the precise nature and severity of the illness with which the plaintiff presents, the degree to which it incapacitates the plaintiff in the preparation and presentation of his case, and the likely duration of that incapacity.

37        Given the history of this litigation, which commenced in 2004 and has, during the 2011 calendar year, seen the vacation of two trial dates in the context of an assertion by the plaintiff that he has been unfit to prepare for trial, I am of the opinion that in the absence of the willingness of the plaintiff to provide a medical report from his treating general practitioner which would enable both the Court and the defendants the ability to gain some insight as to the nature and extent of his incapacitating illness, the defendants’ application to cross- examine the plaintiff’s treating general practitioners should be allowed.

38        I making this statement I do not ignore the submission made by the plaintiff in opposition to the defendants’ application. In my opinion that submission, in that it contained statements by the plaintiff as to the nature of his recent treatment; the severity of his symptoms and the medication which he is currently being prescribed; merely serves to highlight the issue which arises in this application; namely that information of this type should be provided through the plaintiff’s treating medical practitioner and that the normal mode of doing so would be by the provision of a medical report. In making this statement I make it clear that I am not questioning the plaintiff’s veracity as to these matters but rather stating that the method which he has employed to justify the level of his incapacity is inappropriate.

39        As to who should attend for cross-examination, I note that during the course of the year the plaintiff has provided medical certificates from a number of practitioners from the Yarrawonga Medical Clinic; namely:

(i)	Dr Raymond Chan (medical certificate dated 24 January 2011 attesting to incapacity between that date and April 2011);
(ii)	Dr Syed Huq (medical certificate dated 20 July 2011 attesting to incapacity between that date and the end of October 2011);
(iii)	Dr Frankston Cai (medical certificate dated 13 September 2011 attesting to incapacity until the end of December 2011).

40        Although the most recent medical certificate was provided by Dr Cai, the plaintiff in his email dated 19 September 2011 explained that the medical certificate of Dr Cai was provided by reason of his inability to obtain an appointment with Dr Huq.

41        In the circumstances, in order to expose the conduct of the medical clinic to the minimum of inconvenience, I consider at the present time that the application made by the defendants should have effect with respect to Dr Syed Huq.

42        Accordingly, I will make the following orders:

(1)	That the defendants have leave to cross-examine Dr Syed Huq, on a date and at a venue to be fixed such as to provide the minimum of inconvenience to Dr Huq, as to the plaintiff’s capacity to manage the preparation and presentation of this proceeding.
(2)	That the medical records of the Yarrawonga Medical Clinic insofar as they relate to the plaintiff’s capacity to manage the preparation and presentation of this proceeding between the period 20 July 2011 and 1 January 2012 are to be produced by Dr Huq to the defendants no later than seven (7) days prior to the hearing at which Dr Huq is to be cross- examined.
(3)	That the defendants’ solicitors are to serve a copy of this ruling upon Dr Syed Huq by prepaid post addressed to the Yarrawonga Medical Clinic.
(4)	That should Dr Huq consider that he is not in a position to opine as to the plaintiff’s present incapacity to prepare for and manage his trial he may if he considers it appropriate to do so advise the defendants’ solicitors of that fact.
(5)	That should Dr Huq provide such advice to the defendant solicitors an application is to be made by them without delay to myself for further orders and directions.
(6)	Liberty is reserved to the parties generally to apply as to the terms of this order.

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