Jones v Phelps & Tobin (Ruling No 3)

[2011] VCC 1506

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CRIMINAL 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:	12 October 2011 Jones v Phelps & Tobin (Ruling No 3)
[2011] VCC 1506

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RULING

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HIS HONOUR:

1          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.

2          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.

3          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.

4          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.

5          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.

6          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.

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

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