Jones v Phelps and Tobin (Ruling No 5)

[2011] VCC 1508

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:	10 November 2011 Jones v Phelps and Tobin (Ruling No 5)
[2011] VCC 1508

RULING

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Catchwords: Further Ruling incorporating amended Order.

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HIS HONOUR:

1          On 4 November 2011, I delivered a Ruling[1] as to the application on behalf of the defendants for leave to cross-examine the plaintiff’s general practitioners as to the level of the plaintiff’s capacity to prepare for and conduct the trial in this matter.

[1]             Jones v Phelps & Tobin (Ruling No 4)

2          Upon receiving the Ruling, the plaintiff responded relevantly by email at 3.58 pm on 4 November 2011 in the following relevant terms:

“…

I am at a total loss as to why Dr Huq is the doctor to provide report etc as I have not seen him since July and have been seen on a number of occasions by Dr Cai as well as numerous other Doctors etc (especially at Wodonga Hospital) and have another appointment with Dr Cai for review of my recovery and follow up next week (which has all been advised to the Court).

Des Jones”

3          By email dated 7 November 2011, the solicitors for the defendants made the following application:

“Having regard for Mr Jones’ email of last Friday, we request that His

Honour amend his ruling in two respects:

1       To substitute Dr Cai for Dr Hug (sic) in the orders.

2       To order that Wodonga Hospital provide us with copies of its records relating to Mr Jones. (In Mr Jones’ email he says: …as well as numerous other Doctors etc. (especially at Wodonga Hospital) and ….”

4          It follows from the plaintiff’s email of 4 November 2011 that since the provision of his medical certificate dated 13 September 2011, Dr Cai has managed the plaintiff’s condition, together with the medical practitioners at the Wodonga Hospital. In these circumstances, in order to give proper effect to the purpose of my Ruling of 4 November 2011, I consider it appropriate that I vacate the order made 4 November 2011 and substitute for that order the following order:

(1) That the defendants have leave to cross-examine Dr Frankston Cai, on a date and at a venue to be fixed such as to provide the minimum of inconvenience to Dr Cai, 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 Cai to the defendants no later than seven (7) days prior to the hearing at which Dr Cai is to be cross- examined;
(3)	That the defendants’ solicitors are to serve a copy of this Ruling upon Dr Frankston Cai by prepaid post addressed to the Yarrawonga Medical Clinic;
(4)	That the defendants:

(i)    have leave to issue a subpoena directed to the relevant person at the Wodonga Hospital requiring the production to the Court of the plaintiff’s medical records with respect to his admissions to the Hospital between July 2011 and the present date;

(ii)  have leave to inspect and copy any records produced pursuant to the leave granted by paragraph (i) hereof.

(5) Liberty is reserved to the parties to apply with respect to this Order
generally.

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