Krapivensky v Brodsky - [2023] VSC 591

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2023 01851

BETWEEN:

ZINOVI KRAPIVENSKY	Plaintiffs
(and others according to the attached Schedule)
- and -
ANDREY BRODSKY	Defendant
- and -
NATALIE KRAPIVENSKY	Third Party

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JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 3 October 2023
DATE OF JUDGMENT:	3 October 2023
DATE OF REASONS:	5 October 2023
CASE MAY BE CITED AS:	Krapivensky v Brodsky
MEDIUM NEUTRAL CITATION:	[2023] VSC 591

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PRACTICE AND PROCEDURE — Application for examination of first plaintiff by deposition in advance of trial — First plaintiff ordinarily resides in Israel — Elderly first plaintiff scheduled to undergo surgery requiring general anaesthetic — Considerations of the first plaintiff’s state of health — Examination of first plaintiff by audio visual link is appropriate — Legality of examination of first plaintiff from Israel — Exercise of the Court’s discretion — Interests of justice — Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 9B — Supreme Court (General Civil Procedure) Rules 2015 (Vic), ord 41 — Examination ordered — Judge’s Associate appointed examiner — Form of order for examination.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	I Upjohn KC with M Puyol	Mann Lawyers Pty Ltd
For the Defendant	A Meagher with J Apel	Coulter Legal
For the Third Party	L Warren (Solicitor)	L A Warren Lawyers

HIS HONOUR:

Introduction and summary

By their urgent application made by summons filed 27 September 2023, the plaintiffs sought an order pursuant to r 41.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) for the examination of the first plaintiff (Mr Krapivensky) before 8 October 2023 at his home in Israel before a person to be appointed by the court as examiner. Mr Krapivensky is an 88-year-old man with various health concerns and is scheduled to undergo a hernia operation under general anaesthetic on 8 October 2023 (Surgery) which was said to carry various health risks.

During a directions hearing that was held on the day the application was filed, the plaintiffs’ position was recalibrated so as to seek an order that the examination take place by audio visual means from Australia with Mr Krapivensky remaining at his home in Israel for the examination.

Following the filing and service of further materials and submissions by the defendant over the weekend of 30 September and 1 October 2023, the plaintiffs’ application was heard urgently on 2 and 3 October 2023.

Subject to addressing the precise terms of the orders for examination with the parties,[1] I concluded that an order should be made pursuant to s 9B(1)(a) of the Evidence (Miscellaneous Provisions) Act 1958 (Evidence MP Act) and r 41.01(1)(a) of the Rules appointing a judge’s associate as examiner for the examination prior to 8 October 2023 of Mr Krapivensky by audio visual means from the Supreme Court of Victoria. After informing the parties of my decision, I said that reasons would…

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 Krapivensky v Brodsky

Details

AGLC: Krapivensky v Brodsky [2023] VSC 591
Case: [2023] VSC 591
Decision Date: 3 October 2023

CaseChat Overview and Summary

The parties to this case were Krapivensky and Brodsky, and the dispute centred on the method by which the first plaintiff, Krapivensky, could give evidence. The case was heard in the Supreme Court of Victoria. Krapivensky, an elderly man who resided in Israel, was scheduled to undergo surgery requiring a general anaesthetic. The court had to determine whether it was appropriate for Krapivensky to give his evidence by audio-visual link from Israel rather than by a deposition in person in Victoria.

The court was required to decide several legal issues, including whether the use of an audio-visual link for Krapivensky's evidence was permissible under the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court also needed to consider the state of Krapivensky's health and the potential impact on his ability to give evidence if he had to travel to Victoria. The interests of justice and the need to exercise the court's discretion in a manner that would best serve the interests of all parties were also central to the court's decision.

The court found that it was appropriate for Krapivensky to give his evidence by audio-visual link from Israel, given his advanced age and the upcoming surgery. The court was satisfied that this method of giving evidence would be in the best interests of Krapivensky and the interests of justice. The court exercised its discretion under the relevant legislation to order the examination by audio-visual link, and appointed a Judge's Associate as the examiner. The form of the order for the examination was also specified by the court, outlining the procedures and requirements for the audio-visual link examination.

Orders