Krapivensky v Brodsky
[2023] VSC 591
•3 October 2023
| 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 be provided shortly and these are those reasons.
[1]Which occurred during the continued hearing on 3 October 2023.
Brief background to the proceeding
The defendant to the plaintiffs’ claim is married to the first and second plaintiffs’ daughter (Natalie), who is the third party to this proceeding. The defendant and Natalie are separated and are currently involved in contested property proceedings that are ongoing in the Federal Circuit and Family Court of Australia – Division 1 (Family Court).
Relevantly, in this proceeding Mr Krapivensky and Ms Krapivensky, as first and second plaintiffs, make debt claims against the defendant in respect of the following alleged loans:
(a) an alleged loan to the defendant of $200,000 pursuant to a deed dated 24 July 1995 (First Loan). As at 3 May 2023 the amount alleged to be owing was said to be $200,000 by way of principal and $675,077.57 by way of interest; and
(b) an alleged loan to the defendant of $2 million made pursuant to a deed dated 10 December 2019 (Second Loan). It is alleged that $2 million is owing by way of principal and more than $1,036,515.07 is owing by way of interest.
The third plaintiff (MIG) is alleged to be, among other things, the trustee of the MIG Superannuation Fund (SMSF) and in its capacity as trustee of the SMSF the owner of a portfolio of shares and securities listed on the Australian Stock Exchange. It is also alleged to be the registered proprietor in its own right of a property at 17 Byrne Avenue, Elwood, Victoria. For present purposes the detail of the claims made by MIG need not be elaborated upon.
By his defence filed 14 July 2023, the defendant denies liability in respect of all claims on the grounds set out therein and brings a counterclaim against MIG in connection with alleged obligations of MIG under the Superannuation Industry (Supervision) Act 1993 (Cth). For present purposes it is not necessary to set out the detail of, or elaborate upon, these allegations.
The defendant has also commenced a third party claim for contribution or indemnity against Natalie in respect of the First Loan if he is found liable as alleged by Mr and Ms Krapivensky.[2]
[2]I note for completeness that there are unresolved pleading issues between the parties regarding the adequacy or otherwise of the defence and counterclaim and the third party notice. These are to be addressed at a later date if not resolved between the parties.
Affidavits and other materials
The plaintiffs relied upon an affidavit of their solicitor, Dr Nadav Prawer, affirmed on 22 September 2023, an outline of written submissions dated 23 September 2023, and some additional documents said to confirm that the Surgery is scheduled to occur on 8 October 2023.
In addition, during the hearing on 2 October 2023, the court was informed that Dr Prawer would provide a further affidavit confirming that he was instructed and believed that the Surgery is scheduled to take place on 8 October 2023. Senior counsel for the plaintiffs gave an undertaking on behalf of Dr Prawer that such an affidavit would be filed by 10:00am the following day. On the morning of 3 October 2023, the plaintiffs filed a further affidavit of Dr Prawer in which he deposed that he was informed by the first plaintiff and believed that the Surgery has been scheduled to take place on 8 October 2023. That affidavit also exhibited a document said to contain Mr Krapivensky’s surgeon’s handwritten annotations recording, among other things, that the Surgery was scheduled for 8 October 2023 and that it was to take place under general anaesthetic.
The defendant relied upon two affidavits of his solicitor, Ms Katherine Hayes, sworn 26 September 2023 and 2 October 2023, respectively, and an affidavit of another solicitor, Ms Charlotte Wyles, sworn 27 September 2023. The defendant tendered three additional documents relating to the scheduling of the Surgery on 8 October 2023. They became exhibits D1, D2 and D3, being a surgery quotation dated 22 June 2023, a medical report dated 21 June 2023, and an email from the hospital dated 1 October 2023 attaching a price quotation for the Surgery and stating that it was scheduled for 8 October 2023.
The defendant also relied upon an outline of submissions dated 26 September 2023, and a supplementary outline of submissions dated 2 October 2023.
There were no objections to any of the evidence. I read and considered all of the affidavit material,[3] the documents tendered, the outlines of submissions, and the oral submissions made by counsel.
[3]There were submissions made by the defendant regarding the weight that should be given to aspects of the plaintiffs’ evidence and, in particular, the medical reports of the first plaintiff’s treating doctor, Dr Minkov.
Plaintiffs’ affidavits
Dr Prawer’s affidavit of 23 September 2023 addressed a number of matters associated with the proceeding and connected with the directions hearing held on 27 September 2023.
Relevantly to this application, Dr Prawer’s affidavit addressed the medical history and status of Mr and Ms Krapivensky.[4] He exhibited a medical report dated 3 September 2023 regarding Mr Krapivensky’s health from his ‘regular treating doctor’, Dr Tom Minkov (First Report), and a further report from Dr Minkov dated 19 September 2023 (Second Report). The reports were not lengthy and it is convenient to set them out in full, as I do below.
[4]Senior counsel for the plaintiffs expressly did not pursue any examination application in respect of Ms Krapivensky’s evidence. In my view, this was an appropriate position for senior counsel to take.
The First Report provided as follows:
3 September 2023
To Whom It May Concern:
I am the regular treating doctor for the abovenamed Zinovi Krapivensky.
Zinovi is an 88-year old male who has been under my care since moving to Israel in December 2019.
Background illnesses
1.Frailty;
2.Hypertension;
3.Hyperlipidaemia;
4.Decline in hearing;
5.Decline in vision;
6.Inguinal hernia—will require hospitalisation in next 60 days for surgery;
7.Stroke suffered approximately 6 years ago;
8.Severe symptoms of Benign Prostatic Hyperplasia;
9.Overactive bladder;
10.Difficulty sleeping;
11.High cholesterol;
12.Risk of folate deficiency anaemia;
13.Heartburn and difficulty swallowing.
Past Hospitalisations
1.February 2021—chest pains due to possible cardiac event;
2.July 2022—radical neck dissection and superficial parotidectomy as a result of malignant neoplasm of salivary gland and malignant neoplasm of parotid gland;
3.June to December 2022—daily radiotherapy treatment in hospital;
4.August 2023—trauma to head, chest and knee due a fall caused by tripping while walking.
Permanent daily medications
1.Duodart Cap 0.5mg/0.4mg
2.Stator Tab 20mg
3.Tritace Tab 5mg
4.Nexium 40mg
5.Omnic 0.4mg
6.Betmigo 25mg
7.Circadin 2mg
8.Folic Acid 0.4mg
Questions to be answered
Is Zinovi capable of:
1.Participating in court hearings?
Only remotely from Israel and only during daytime hours in Israel and even then, only for 3-4 hours per day, preferably not in consecutive days.
Due to general ill health, combined with poor hearing and a long history of spinal injury, sitting for long periods of time and maintaining concentration with respect to complex matters would not be possible.
2.Attending court in person in Australia for a period of several weeks at least?
No. Beyond the health risks associated with long term travel for an 88 year-old man, Zinovi would not be able to obtain travel insurance due to his current and pre-existing conditions which would make any travel untenable.
3.Hearing witness testimony?
Yes, again, remotely from Israel and only during daytime hours in Israel and even then, only for 3-4 hours per day, preferably not in consecutive days.
4.Reading and understanding lengthy and complicated documents?
Zinovi is capable of reading documents however his ability to understand complex legal concepts is limited and depending on the size of the documents this is likely to take him a very long time.
5.Consulting lawyers during a court trial for up to 8 hours per day?
No.
6.Coping with the time difference between Israel and Australia (7-9 hours difference) for the purposes of attending court hearings remotely from Israel?
Yes, if only during daytime hours in Israel and even then, only for 3-4 hours per day, preferably not in consecutive days.
Other questions:
7.Are shorter hearing days preferable?
Without doubt, shorter hearing days would be the only way that Zinovi might be able to participate in a trial.
8.Are there any signs of Alzheimer’s or dementia which might mean that it is preferable that his evidence be taken now, and what is the likelihood that he will not be able to give evidence in a number of years’ time?
Yes, there are signs of early onset dementia including some forgetfulness and limited memory loss. As Zinovi is nearing the age of 90, the state of his health is naturally unpredictable and as such, I would recommend obtaining any required evidence from him as soon as possible.
Sincerely,
Dr Tom Minkov
RND Medical
The Second Report was in the following terms:
19 September 2023
To Whom It May Concern:
I am the regular treating doctor for the abovenamed Zinovi Krapivensky.
I refer to my previous letter dated 3 September 2023 and confirm that Mr Krapivensky has been diagnosed with a left sliding inguinal hernia which requires surgical treatment. The surgery is scheduled for 8 October 2023 and will be carried out laparoscopically under general anaesthetic.
Any surgery involving general anaesthetic carries risks but in elderly population of 80 years + it carries very significant risks. In Zinovi’s case I highlight some of the following risks associated with the surgery and anaesthesia:
1. Postoperative delirium (POD): This might develop a few days after surgery. Zinovi may become confused, disoriented, have trouble in concentrating and remembering things, and remain more or less unaware of his surroundings.
2. Dementia: A series of chronic organic brain syndromes associated with irreversible pathology is dementia, and it is often confused with delirium. In its most easily recognized form, dementia presents as a deterioration of cognitive ability.
3. Postoperative (cognitive dysfunction (POCD): This is a serious condition that may lead to long-term memory loss and reduced ability to learn, focus and think.
4. Other complications — Zinovi’s pre-existing heart condition and high blood pressure can complicate the administration of anesthesia and lead to extremely serious medical complications.
Given the above risks, it is, in my view, critical to obtain any important information from Zinovi prior to the surgery.
Despite the risks, it is my medical opinion that the surgery is necessary and unavoidable.
Sincerely,
Dr Tom Minkov
RND Medical
Dr Prawer’s affidavit also deposed to various matters regarding organising and conducting the proposed examination in Israel, including identifying three individuals who it was said would be suitable to be appointed as an examiner if the examination was to take place in person in Israel (as was then proposed). Dr Prawer stated that he could arrange a videographer to record the evidence and that he could facilitate the availability of Mr Krapivensky on any day except for Saturday. Dr Prawer said further that he had attended Mr Krapivensky’s home in Hertzliya, Israel, and that there were facilities available at that location for conducting the examination, including a suitable dining room. He also said that there was a further location in an adjacent building that was available if required.
The plaintiffs also relied upon the email communication from the hospital dated 1 October 2023 and its attached quotation (Hospital Email),[5] and Dr Prawer’s affidavit of 3 October 2023, as evidencing the nature, timing and cost of the Surgery.
[5]Being exhibit D3.
Defendant’s affidavits
Ms Hayes’ affidavit of 26 September 2023 addressed a number of matters associated with the directions hearing held on 27 September 2023 that are not material for present purposes. With respect to the proposed examination of Mr Krapivensky it was said in that affidavit that:
(a) The defendant first became aware of the intention to seek orders for the taking of Mr Krapivensky’s evidence by examination on 12 September 2023 by reason of an email sent to the court.[6]
[6]The court responded to this email by stating, among other things, that if such a course was proposed the draft application and related documents should be provided to the court, which they were on 23 September 2023.
(b) The email did not specify a date by which such evidence would need to be taken.
(c) On 15 September 2023 the plaintiffs’ solicitor sent a letter to the defendant’s solicitors communicating their proposal that Mr Krapivensky’s evidence be taken through an in-person deposition in Israel by 7 October 2023, and that the letter had said that Mr Krapivensky’s hearing issues were such that a video conference did not appear to be a practical option.
(d) Various procedural matters, including any issues with the taking of evidence due to any health issues of Mr or Ms Krapivensky, should be dealt with following the hearing and determination of a proposed cross-vesting application proposed to be brought by the defendant to have this proceeding cross-vested to the Family Court.
(e) It was not possible for the defendant, the defendant’s solicitors, or the defendant’s counsel to travel to Israel to participate in an in-person examination before 8 October 2023, stating also that it was a costly undertaking and significantly more notice would have been required to enable such travel arrangements to have been made.
Ms Hayes’ affidavit of 2 October 2023 addressed communications between the solicitors in connection with documents said to be relevant to the question of whether or not the Surgery was scheduled for 8 October 2023, two notices to produce served on the plaintiffs over the weekend before the hearing on 2 October 2023, and related matters. In addition, Ms Hayes exhibited a medical report from an experienced anaesthetist, Dr Pemberton. The report was brief and was in the following terms:
Dear Ms Hayes,
In response to your request, I have read and understood the expert witness code of conduct.
I am an anaesthetist and Deputy director of the department of anaesthesia and pain management at the Royal Melbourne Hospital.
MBBS BMedSci ANZCA MPH and perioperative medicine specialist.
The answers given to the questions posed in the Minkov report seem reasonable given the information provided.
The risk of developing POCD (post operative cognitive decline) is increased in this man should he undergo general anaesthesia. His risk factors include his advanced age (88) and his pre-existing cerebrovascular disease (stroke) and pre-existing cognitive impairment (dementia).
The risk of a general anaesthetic can be mitigated entirely if the surgery is undertaken solely under local anaesthesia with or without conscious sedation. This technique requires expertise on the part of the surgeon, but is not an uncommon method. It enables the patient to be treated as a day case without an overnight stay in the hospital, and without any side effects of general anaesthesia.
Alternatively the procedure can be performed as an open hernia repair and a regional technique (either spinal of epidural) may be used. These techniques also avoid the side effects of a general anaesthetic. Note that early postsurgical complications occur with similar frequency for both open and laparoscopic procedures.(1)
Local and regional techniques decrease the need for strong analgesics such as opiates. (Opiates such as morphine and fentanyl can contribute to PCOD and delirium)
For a laparoscopic repair under general anaesthesia, using the information given, (assuming a height of 170cm and weight of 70kg, ASA 3) the American College of surgeons surgical risk calculator puts his risk of a serious complication at 3.1%, of developing any complication at 3.6%, of postoperative delirium at 2.9% and post operative functional decline at 15.7%. His risk of death is estimated at 0.4%, risk of readmission to hospital 4.1% and risk of discharge to a nursing home 1.6%
The decision whether or not to perform the herniorraphy is a surgical one.
References:
1. Poelman MM, van den Heuvel B, Deelder JD, et al. EAES Consensus Development Conference on endoscopic repair of groin hernias. Surg Endosc 2013;27(10):3505–19. doi: 10.1007/s00464-013-3001-9
Yours sincerely,
Dr Elizabeth Pemberton
Deputy Director
Department of Anaesthethesia and Pain management RMH
Senior Lecturer Uni Melb.MBBS BMedSci FANZCA MPH
Ms Wyles’ affidavit dealt with a matter unrelated to the examination application that clarified that the defendant’s application in the Family Court to join the plaintiffs as parties to that proceeding is scheduled to be heard on 25 October 2023 and not 23 October 2023.
Adjournment application
At the commencement of the hearing of the plaintiffs’ application on 2 October 2023, counsel for the defendant sought to have the hearing adjourned to the afternoon of 3 October 2023 and orders made requiring the plaintiffs to produce to the defendant: any hospital, surgical and anaesthetic fee documents for 8 October 2023; any medical advice from the surgeon describing the nature of the Surgery to occur on 8 October 2023 and the medical ailment the Surgery will treat; and any patient information provided to Mr Krapivensky regarding his proposed surgery on 8 October 2023.
The court was informed that the basis for the adjournment application was because the court could not be satisfied that the Surgery was in fact scheduled for 8 October 2023. Upon enquiry from the Bench, and responsibly, counsel for the defendant made clear that he was not submitting that Mr Krapivensky’s claimed scheduled Surgery was any sort of sham or ruse.
For the reasons given ex tempore on 2 October 2023,[7] I refused the adjournment application and proceeded with the hearing. As I recorded in my reasons, I was satisfied on the evidence before the court that the Surgery is currently scheduled to take place on 8 October 2023. Given the limited time available prior to the Surgery for any examination to take place, I concluded that it was necessary, appropriate, and in the interests of justice for the hearing of the application to proceed on 2 October 2023 as scheduled, which it did.
[7]My revised written ruling was provided to the parties on 3 October 2023.
Plaintiffs’ submissions
The plaintiffs submitted that the court had the power to make the examination order pursuant to r 41.01(1)(a) of the Rules and s 9B of the Evidence MP Act, and confirmed that the application was being pursued under both r 41.01 of the Rules and s 9B of the Evidence MP Act.
It was submitted that it was plain that Mr Krapivensky was a critical witness and central to the issues in the proceeding. It was noted that the defendant alleges in his defence ‘some form of estoppel’ and alleges that the parties to the deed relating to the Second Loan conducted their relationship on the basis that the deed would not be enforced and would instead be used to offset the division of assets in the marital separation between the defendant and Natalie. Evidence of Mr Krapivensky regarding relevant conduct and conversations in this context was said to be material.
The plaintiffs submitted that it was plain from Dr Minkov’s report that Mr Krapivensky could not travel to Australia and that he has imminent health risks as referred to by Dr Minkov. The health risks were said to include the risk of post-operative delirium, dementia, and cognitive dysfunction, which it was said would all self-evidently affect the ability of Mr Krapivensky to give evidence or instructions if the risks eventuated after the Surgery. Emphasis was also placed upon Dr Minkov’s stated view that it was ‘critical’ to obtain any important information from Mr Krapivensky prior to the Surgery. It was submitted to be clear that Mr Krapivensky’s examination needed to be undertaken urgently.
With respect to the defendant’s contention that the court could not be satisfied that the Surgery was scheduled for 8 October 2023, it was submitted that the evidence well established that the Surgery is in fact scheduled to take place on 8 October 2023. In this context, reliance was placed upon the statement of Dr Minkov in his report to that effect, Dr Prawer’s evidence in his affidavit, and the Hospital Email from its administrator attaching a quotation for the Surgery and stating that it was scheduled for 8 October 2023.
At the hearing on 2 October 2023, reliance was also placed upon the undertaking given that Dr Prawer would provide a further affidavit the next morning confirming that he was instructed by Mr Krapivensky and believed that the Surgery is to take place on 8 October 2023.[8]
[8]As earlier mentioned, the affidavit was filed and served in accordance with the undertaking.
The plaintiffs had originally sought to have the examination take place in Israel, with all participants being present in person. This position was recalibrated and it was submitted by senior counsel for the plaintiffs that, having regard to timing considerations and the position of solicitors and counsel for each of the parties, the appropriate course was for the examination to take place audio visually from the court in Melbourne, with Mr Krapivensky being located at his home in Israel.
As to the medical report of Dr Pemberton, it was submitted that the observations regarding the possible use of local anaesthesia or other regional techniques did not make any difference to the proposed outcome of the application because the evidence before the court established that Surgery under general anaesthetic is to occur, and that it carries the risks earlier referred to. In substance, it was submitted that it was a matter for Mr Krapivensky and his medical advisers to decide the most appropriate way forward for dealing with his health and the Surgery, and that the evidence showed that it was considered necessary and appropriate that the Surgery be undertaken and that it occur under a general anaesthetic.
Defendant’s submissions
The defendant initially submitted that he should not have to respond to the application because only a draft application had been provided prior to the scheduled directions hearing on 27 September 2023, and the application had not yet been filed. In this context, it was said that the defendant otherwise reserved his right to provide a fulsome response in respect of ‘any application properly brought’. This position was refined at the directions hearing on 27 September 2023 following the filing of the summons by the plaintiffs that morning. Orders were made for the urgent filing of responsive material by the defendant and the hearing of the application was fixed for Monday 2 October 2023, which each of the parties and the court considered to be appropriate in the circumstances.
Upon enquiry from the Bench at the hearing on 2 October 2023, counsel for the defendant confirmed that he was instructed to oppose the application. Reference was made to the defendant’s supplementary outline of submissions dated 2 October 2023, which I had received, read and considered in advance of (and during) the hearing. The matters raised in that outline of submissions included the following:
(a) What was said to be a failure to provide documents sufficiently establishing that the Surgery is in fact scheduled to take place on 8 October 2023.
(b) Dr Pemberton’s report and her evidence about how the risks of a general anaesthetic could be mitigated by using other medical methods, such as local anaesthetic or an open hernia repair with a regional technique (spinally or epidurally).
(c) The absence of information regarding Dr Minkov’s qualifications and the absence of a declaration that he had read the expert witness code. It was said that these matters were relevant to any weight that the court might otherwise give to Dr Minkov’s evidence.
(d) A contention that in all the circumstances described, doubt arises as to whether the Surgery is scheduled to occur as claimed. In this context: it was submitted that Dr Pemberton’s report raises realistic doubt about whether an operation would be conducted under a general anaesthetic; emphasis was placed upon the unknown qualifications of Dr Minkov, the failure to declare that he had read the expert witness code of conduct, and the claimed failure to produce any substantive documentary evidence to establish that the Surgery is occurring on 8 October 2023; and it was contended that the absence of such documents was ‘peculiar’ given that the Surgery was said to be less than a week away.
Given the matters referred to, the defendant submitted that:
Given the considerable reasons for doubting whether the Surgery is occurring on 8 October 2023 and the prejudice to the defendant in having to conduct cross-examination at this early stage in the proceeding and with little notice, the deposition should not be ordered until documents are produced evidencing it.[9]
[9]Defendant’s outline of supplementary submissions dated 2 October 2023, [18].
The defendant initially had indicated that prejudice would be suffered by reason of the tight timing and the unavailability of counsel who had been involved in the case to participate in the examination.[10] However, the issue of unavailability appeared to fall away as counsel for the defendant, Mr Meagher, confirmed that he was able to participate in the examination if it occurred on 4 or 5 October 2023, which is what was ordered.
[10]This submission was made at the directions hearing on 27 September 2023.
As previously mentioned, the defendant made an adjournment application at the commencement of the hearing on 2 October 2023, which was unsuccessful.
Section 9B of the Evidence MP Act and Rule 41.01 of the Rules
Section 9B of the Evidence MP Act provides as follows:
9B Proceedings in superior courts
(1) In any civil or criminal proceeding before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside Australia, an order—
(a) for the examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or
(b) for the issue of a commission for the examination of the person on oath or affirmation at any place outside Australia; or
(c) for the issue of a letter of request to the judicial authorities of a foreign country to take, or to cause to be taken, the evidence of the person.
(2) In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court must have regard include the following—
(a) whether the person is willing or able to come to Victoria to give evidence in the proceeding;
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c) whether, having regard to the interests of other parties to the proceeding, justice will be better served by granting or refusing the order.
(3) If a court makes an order under subsection (1) of the kind referred to in subsection (1)(a) or (b), the court, in its discretion, at the time of the making of the order or at a subsequent time, may give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the court thinks relevant.
(4) If a court makes, in relation to a proceeding, an order under subsection (1) of the kind referred to in subsection (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters—
(a) the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;
(b) the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;
(c) any prescribed matter.
(5) Subject to subsection (6), the court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in any examination held as a result of an order made under subsection (1) or a record of that evidence.
(6) Evidence of a person so tendered is not admissible if—
(a) it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Victoria and is able to attend the hearing; or
(b) the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.
(7) If it is in the interests of justice to do so, the court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (1), whether or not it is otherwise admissible.
(8) In this section, a reference to evidence taken in an examination includes a reference to—
(a) a document produced at the examination; and
(b) answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.
Rule 41.01 of the Rules provides as follows:
41.01 Order for witness examination
(1) The Court may, for the purpose of any proceeding, make an order for—
(a) the examination of any person before a Judge of the Court or an Associate Judge or such other person as the Court appoints as examiner at any place whether within or out of Victoria; or
(b) the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
(2) An order under paragraph (1)(a) shall be in Form 41A or 41B, as the case requires.
(3) An order under paragraph (1)(b) shall be in Form 41C.
These provisions are consistent with the terms of s 7 of the Foreign Evidence Act 1994 (Cth) (FEA), which provides as follows:
7 Orders for taking evidence abroad
(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:
(a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or
(b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or
(c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.
(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:
(a) whether the person is willing or able to come to Australia to give evidence in the proceeding;
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.
I add for completeness that r 29.11(1) of the Federal Court Rules 2011 (Cth) is cast in almost identical terms to r 41.01(1) of the Rules.[11]
[11]I say ‘almost identical terms’ because r 29.11(1)(a) of the Federal Court Rules 2011 (Cth) includes the words ‘on oath or affirmation’, although this distinction is not relevant for present purposes.
In Laurent v Unilever Australia Ltd,[12] the plaintiff was 78 years of age and dying of mesothelioma. The plaintiff resided in Jersey and applied for the taking of his evidence[13] (and that of his witnesses) in Jersey under the provisions of the FEA. The defendant opposed the making of such an order at that time, and submitted that it would be preferable to order an examination on commission by video link and then, if the case did not settle, later make orders under the FEA regarding evidence in the proceeding.
[12][2017] VSC 527 (Laurent).
[13]As opposed to an examination.
Justice J Forrest allowed the plaintiff’s application for the taking of his evidence in Jersey under the FEA but declined to order the conduct of an examination on commission. In so doing, his Honour drew attention to the distinction between an examination (which is not evidence in the proceeding) and the taking of evidence overseas. He stated as follows:
[6] Part 2 of the FEA deals with the examinations of witnesses abroad and Division 1 is concerned with the proceedings in superior courts. Section 7 reads as follows:
…
[7] Judges in this State have, on a number of occasions, made orders under these provisions. I did so in 2015 in Tamaresis v CSR Ltd.[14]
…
[9] I should also refer to rule 41.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules), which enables the court to make an order for:
(a) the examination of any person before a Judge of the Court or an Associate Judge or such other person as the Court appoints as examiner at any place whether within or out of Victoria; or
(b) the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
[14][2015] VSC 47 (23 February 2015) [49].
…
[39] In my opinion it is important that [the plaintiff][15] only give evidence on one occasion. The taking of his evidence on commission [which is an examination][16] means there is still a real prospect that he may have to give evidence twice. This, I consider, is unfair, in light of his medical condition.
[40] Finally, and in my view decisively, at the heart of this application lies a misunderstanding of the basis of taking evidence on commission under order 41 (whether in person or by video link prior to the trial). The orders made by Clayton JR[17] were typical of orders made in this state in cases such as these. The fundamental purpose of taking the evidence of a witness in a terminal disease case prior to the trial is to ensure that that witness’s evidence is preserved and that each party has the opportunity to question the witness at a time when he or she is capable of giving a lucid account of events relevant to both liability and quantum. Admittedly, a peripheral benefit of taking evidence on commission is the ability of the parties to gauge the quality of that evidence and then endeavour to settle the proceeding. But to elevate that benefit to effectively give Unilever (or any other defendant) a ‘dry run’ prior to trial is not a proper purpose for the exercise of the discretion under order 41.
[41] Unilever, like any other defendant, must meet the plaintiff’s case as it is presented at trial. If the Court accepts that Mr Laurent cannot travel to Australia, then the provisions of the FEA are available to ensure that a fair trial takes place and that evidence is taken overseas. It does not mean that Unilever is entitled to a preview of the quality of Mr Laurent’s evidence.
[42] If Unilever’s argument was accepted, then in virtually every case where there was a disputed factual issue, a party would be able to argue that the evidence be given and tested before trial as it might assist in negotiations. Simply put, that is not the way in which trials in this State operate. Such is clear from rule 40.02 of the Rules, which requires the evidence at trial to be given orally in a case commenced by writ.
[43] It may of course have been different if, as in jurisdictions of the United States of America, parties were entitled to depose witnesses to be called by other parties. But here, such a practice is not contemplated by the Rules, and it would only be in the most extraordinary of circumstances, I suggest, that such an order be made under the CPA – if it be open.
[15]My insertion.
[16]My insertion.
[17]See order of Clayton JR, 26 May 2017.
Conclusion
[44] The end result is that Unilever’s application to take evidence [by examination][18] on commission of Mr Laurent by videolink should be dismissed and the application made by Mr Laurent for the taking of evidence in Jersey under s 7 of the FEA be granted. I am satisfied that the conditions of s 7(1)(a) of that Act are made out and, particularly, that the interests of justice are better served by the making of the order.
[18]My insertion.
In Indochina Medical Co Pty Ltd v Nicolai,[19] Barrett JA (with whom Emmett and Gleeson JJA agreed) helpfully discussed the relevant provisions of the Evidence on Commission Act 1995 (NSW) (which are in similar terms to s 7 of the FEA and s 9B of the Evidence MP Act), including the history, origin and nature of ‘evidence’ taken through an examination on commission.
[19][2013] NSWCA 436.
Generally speaking, Barrett JA’s observations made regarding the character and nature of taking evidence through an examination on commission — as opposed to taking the evidence of a person that constitutes evidence in the proceeding — apply equally to an examination not on commission that is ordered pursuant to r 41.01(1)(a) of the Rules or s 9B(1)(a) of the Evidence MP Act. The following observations made in that case are therefore instructive and merit extraction:[20]
Evidence on commission
[37] The procedure generally described as taking evidence on commission was developed by the Court of Chancery and came to be deployed in aid of common law proceedings to mitigate the severity of the rule that evidence in an action at law could only be given viva voce before a jury. At a later point, the East India Company Act 1772 (UK) empowered the common law courts to award a writ in the nature of mandamus or commission to judges in India to enable examination of witnesses and the taking of depositions in India for the purpose of English proceedings. That authority was extended by the Evidence on Commission Act 1831 (UK) to the examination and taking of depositions in all British possessions. Provision for like procedures within the constituents of the United Kingdom itself and between the United Kingdom and foreign countries was made by subsequent legislation. When rules under the Supreme Court of Judicature Act 1873 (UK) fixed the examination of witnesses viva voce at trial as the normal method of procedure in all courts, those rules made general provision for the taking of evidence on commission. Similar provision was made by statute in many jurisdictions (see, for example, Witnesses Examination Act 1900 (NSW)). An account of these developments is given in the judgment of Poole J in McDonald v Page [1923] SASR 167. The jurisdiction to appoint commissioners to take evidence out of court was exercised by the Supreme Court of New South Wales in the early years of its existence: see, for example, Hobbs v Dangar [1839] NSWSupC 18 and Moutry v Boyd [1848] NSWSupC 56.
[38] An appointment of this kind clothed a person other than the court’s judicial officers with authority to receive testimony. The process of nomination and appointment entailed an order for examination on oath before the particular person and an order that a writ of commission issue to that person accordingly (see, for example, Henderson v Primmer (1986) 68 ACTR 9). A typical form of writ of commission, such as that prescribed by the Evidence on Commission Rules made by the Supreme Court of New South Wales in 1952, was expressed to issue in the name of the Queen by the Chief Justice under the hand of the Prothonotary: R E Walker, The Practice of the Supreme Court of New South Wales at Common Law (1958) Law Book at 739.
[39] It was the writ of commission (or dedimus potestatem - “we have given power”) that was the source of a commissioner’s authority to administer an oath or affirmation. That authority, although conferred by the court, did not, of course, run in a foreign jurisdiction unless accommodated by the law of that place (see, as to the ability of persons authorised by a foreign court to take evidence in New South Wales, s 26B of the Oaths Act 1900). Thus, in Wolfe v Hart (1879) 5 VLR (E) 52, a commission issued by the Supreme Court of Victoria for the taking of evidence at Hamburg was returned unexecuted with a report stating (at 54) that, under German law, “it is not allowed that private persons, even appointed as commissioners by the Court of Australia, take oath and let swear other persons”.
[40] The procedure for the taking of evidence pursuant to a writ of commission was not fixed, although it was commonplace for the evidence to be led in the conventional way by questions put by a lawyer acting for the party seeking to elicit the evidence, often with provision also for cross-examination by a lawyer for the opposing party. The essentially passive role of the commissioner emerges from Practice Note (Chancery: Deposition) [1981] 1 WLR 1560 in which Sir Robert Megarry VC (at 1561) recounted his experience as a commissioner in a particular case:
“In the event, no objections to any of the evidence were taken, and so for most of two days I simply sat and listened to the evidence, with nothing to decide and no useful function to discharge.”
[20]See also, and generally, Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95; Commissioner of Taxation v Rawson Finances Pty Ltd (No 2) (2016) 343 ALR 300; BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs [2023] FCA 123.
…
The status of the product of the examination in the local proceedings
[46] Examination pursuant to a commission issued under s 6(1)(b) of the Evidence on Commission Act does not form part of the trial of the proceedings in which the order for issue of the commission is made. The process of examination is distinct from the process of taking the evidence of witnesses in the proceedings. The examination is a “private proceeding” which is not accessible to the public (Magnusson v ACT Health and Community Care Service [2001] ACTSC 3 at [9]) so that one of the fundamental features of court proceedings is absent.
[47] It is true that s 8 of the Evidence on Commission Act refers to “a person’s evidence taken in an examination” (“evidence” there including, under s 5, a document produced at the examination and answers made to any written interrogatories presented at the examination). But, as s 8 itself makes clear, such “evidence” will not be “evidence in the proceeding” in which the order for examination was made unless a party to the proceedings tenders it at the trial. The product of an examination “does not per se become evidence in the case”: Fisher v CHT Ltd [1965] 1 WLR 1093 at 1095 per Edmund Davies J. In Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578, Austin J referred (at [15]) to the need for “a separate tender” of the product of an examination, having regard to s 8 of the Act.
[48] Both the Evidence on Commission Act and provisions of the Uniform Civil Procedure Rules 2005 regulate the use that can be made in the Supreme Court of testimony obtained on commission. Because the procedure is ancillary to a trial, use at the trial of the evidence obtained by means of the statutory process and tendered in the way just described is subject to conditions. These are conveniently stated in the commentary on rule 24 at paragraph [24.1.10] of Ritchie’s Uniform Civil Procedure NSW. In summary, the evidence must satisfy the same criteria of admissibility as if it had been given at the trial (rule 31.6(2)(b) and Evidence on Commission Act, s 8(2)(b)), the evidence is not admissible if the court is satisfied that the witness is within the State and able to attend the hearing (rule 31.6(2)(a)) and, even if the evidence is technically admissible, the Court has a discretion to exclude it if satisfied that the interests of justice so require (rule 31.6(3)). The general provisions of the Evidence Act 1995 as to admissibility also apply, the expectation being that the person conducting the examination may not be closely concerned with questions of admissibility: British American Tobacco Australia Services Ltd v Eubanks (above) per Spigelman CJ at [71]-[75]. In the first instance, the tendered record may be admitted “saving all just exceptions”, so that detailed objections to admissibility are dealt with in the ordinary course of trial: Hatt v Hatt (1877) 3 VLR (E) 227.
[49] Today’s procedures do not include the issue of a writ of commission as such. They do, however, entail, in s 6(1)(b) of the Evidence on Commission Act, the issue of a “commission for examination” by which the court authorises a particular person to perform a function intimately connected to a particular proceeding in which the court has assumed and begun to exercise jurisdiction. The status and powers of the commissioner derive from the court and the result of the performance of the person’s functions, if placed before the court, have generally the same status as evidence given before the court.
As is apparent from the terms of ss 9B(5)–(8) of the Evidence MP Act and rr 40.02, 40.07 and order 41 of the Rules, an examination or examination on commission is not part of the trial of the proceeding and any evidence given at an examination or an examination on commission does not automatically constitute evidence in the proceeding.
Consideration and disposition
As I have said, I am satisfied in the circumstances that, subject to further order, an order should be made pursuant to s 9B(1)(a) of the Evidence MP Act and r 41.01(1)(a) of the Rules for the examination of Mr Krapivensky by audio visual means over the Zoom platform from the Supreme Court in Melbourne prior to 8 October 2023, with Mr Krapivensky being located at his home in Israel or such other place as is agreed between the parties or ordered by the court. I elaborate below as to why.
First, and as addressed when refusing the defendant’s adjournment application, I am satisfied on the evidence before the court that the Surgery is scheduled to take place on 8 October 2023 in Israel. I refer in this regard to the direct evidence of Dr Minkov on the topic, the Hospital Email from the hospital administrator confirming the 8 October 2023 date, and paragraph 7 of Dr Prawer’s affidavit of 22 September 2023.
I refer also to the undertaking given to the court that Dr Prawer would file a further affidavit stating that he was instructed and believed that the Surgery was scheduled to take place on 8 October 2023 and the filing of that affidavit in the early hours of the morning on 3 October 2023 prior to the hearing continuing that day. As earlier observed, the affidavit also exhibited what was said to be a note containing annotations of the surgeon recording that the Surgery is scheduled on 8 October 2023.[21] In any event, even if Dr Prawer’s affidavit of 3 October 2023 is put to one side, it is plainly established by the other evidence to which I have referred that the Surgery is currently scheduled to take place on 8 October 2023.
[21]No issue was taken by the defendant in relation to this further affidavit at the hearing on 3 October 2023, which was an understandable position for counsel to take.
I note further in this context that, after I raised with senior counsel for the plaintiffs the possibility of the postponement or cancellation of the Surgery, an undertaking was given that the first plaintiff will forthwith notify the court and the defendant if the Surgery is postponed or cancelled.
Second, I accept that Mr Krapivensky appears from the pleadings to be a material witness. He is alleged to be a party to the deeds pursuant to which the alleged Loans were made. The defendant also alleges in paragraph 17C of his defence that Mr Krapivensky, Ms Krapivensky, the defendant and Natalie conducted their relationship on the basis that the ‘Second Deed’, which relates to the Second Loan, would not be enforced and would be used to offset the division of assets in the marital separation between the defendant and Natalie. In so alleging, the defendant relies upon alleged conversations between himself, Natalie, Mr and Ms Krapivensky to the effect alleged. Although these alleged conversations are not particularised as well as they should be, it is self-evident from the allegations made that Mr Krapivensky is a material witness on at least this issue and alleged defence.
Third, given the timing constraints, the scheduled Surgery, and Mr Krapivensky’s location in Israel, I am satisfied for the purposes of this application that Mr Krapivensky is neither willing nor able to come to Victoria prior to the Surgery to give evidence in this proceeding and, as I have said, is a person able to give evidence material to issues in the proceeding. These are matters to be taken into account under ss 9B(2)(a) and (b) of the Evidence MP Act. I refer in this regard to the evidence of Dr Minkov referred to above, Dr Prawer’s first affidavit, and Dr Pemberton’s opinion regarding the reasonableness of Dr Minkov’s answers to the questions he was asked and answered.
Fourth, given the evidence regarding the timing of the Surgery and the risks referred to by Dr Minkov, when considered together with all other circumstances, I accept that it is in the interests of justice that the examination take place urgently, before the Surgery. Even if the risks of such adverse consequences are assumed to be small, the consequences would be material in the context of the proceeding if the risks eventuated.
I note again in this context that Dr Pemberton considered the answers given by Dr Minkov to the questions asked of him to be reasonable given the information provided to him. In addition, Dr Pemberton expressed the view that the risk of developing post-operative cognitive decline is increased in Mr Krapivensky should he undergo general anaesthesia. These risk factors were said by Dr Pemberton to include his advanced age, his pre-existing cerebrovascular disease (stroke) and pre-existing cognitive impairment (dementia).
Fifth, as is evident from the terms of s 9B of the Evidence MP Act and rr 40.02, 40.07 and order 41 of the Rules, it does not inexorably follow from the conduct of the examination that the ‘evidence’ derived from it (or any part of it) will be admitted into evidence at the trial of the proceeding. It may be that no application to admit the evidence is ever made. In any event, even if such an application is later made it will fall to be determined at that time in accordance with the relevant statutory provisions and applicable principles. See, for example, ss 9B(5)–(8) of the Evidence MP Act and rr 40.02(b) and 40.07 of the Rules, and the discussion in the cases referred to earlier.
Sixth, both the plaintiffs and the defendant propose to medically examine Mr Krapivensky regarding his competence prior to the Surgery. In that context, the court was informed by senior counsel for the plaintiffs, among other things, that the plaintiffs have agreed to make Mr Krapivensky available for such a medical examination by a medical practitioner appointed on behalf of the defendant and provide certain relevant documents and information to the medical practitioner for that purpose.
Seventh, although the actual or potential unavailability of counsel is a relevant factor for the court to take into account, given the relatively narrow issues in the proceeding between Mr and Ms Krapivensky and the defendant, and the urgency of the circumstances given the surgical risks and the scheduled timing of the Surgery on 8 October 2023, this factor, whether considered alone or in combination with any other circumstances, would not have led me to refuse the application. Although not ideal, it would have been possible for the defendant to brief other counsel and for instructions to be taken from the defendant so as to enable participation in the examination.
That said, this issue need not be further addressed because this alleged prejudice was not ultimately pressed given that counsel for the defendant, Mr Meagher, confirmed that he had been able to make himself available to participate in the examination and the dates for the examination were set for 4 and 5 October 2023 in order to accommodate Mr Meagher’s availability.
Eighth, and noting the court’s broad powers under s 9B(3) of the Evidence MP Act and s 47 of the Civil Procedure Act 2010 (Vic) (CP Act), I accept the parties’ submission that the examination should take place audio visually over the Zoom platform from the Supreme Court in Melbourne prior to the Surgery, with Mr Krapivensky being located at his home in Israel or such other place as is agreed or ordered by the court. This well serves the overarching purpose under the CP Act and ensures that counsel and solicitors for the defendant do not lose time for preparation as a result of travel time and related logistics — even assuming that it would have been physically possible to arrive in Israel in time for the examination, which seemed unlikely.
To the extent that I am required to be satisfied that the technical requirements of s 42G can be reasonably met by the examination taking place over the Zoom platform from the Supreme Court in Melbourne, I am so satisfied. I note in this regard that the proposed court room for the examination is well equipped for this purpose and that the court has been informed that the relevant technology will be in place for Mr Krapivensky to enable him to see, hear, and answer questions through the Zoom platform, and that he will have the assistance of a person at his end to assist with any technical challenges. The appointed examiner, who is a judge’s associate, is also very familiar with operating hearings audio visually over the Zoom platform and has the assistance of technical staff at the court if needed, as well as the assistance and agreement of the parties.
Ninth, as to any language difficulties, the examination is to be conducted in English and senior counsel for the plaintiffs informed the court that there was no need for an interpreter because Mr Krapivensky speaks and understands English. Consequently, it was not proposed to include an interpreter for the examination, and the defendant did not suggest otherwise.
Tenth, to the extent that the plaintiffs pressed a submission that it was necessary for the court to deal with any pleading issues regarding the defendant’s pleading prior to the examination being held later this week, I do not accept that submission. The examination will proceed on the basis of the pleadings as they are. I also propose to make directions to allow the defendant to consider concerns raised by the plaintiffs and the third party regarding the defendant’s pleadings and provide any proposed revised pleadings to the other parties within a reasonable time. It is neither desirable nor fair to impose that burden upon the defendant prior to the proposed examination given that there is limited time available for counsel and solicitors for the defendant to prepare for the examination.
Eleventh, to the extent that it was submitted by the defendant that Dr Pemberton’s evidence regarding possible alternative ways to perform the Surgery militate materially against the application, whether alone or in combination with any other circumstances, I do not accept that submission. Even accepting Dr Pemberton’s evidence, which I do for present purposes, it does not follow from that evidence that Dr Pemberton is expressing a view that the course being adopted is an unusual one, and a review of her report extracted above reveals as much.
In any event, even if that was so, it is a matter for Mr Krapivensky and his medical advisers to determine his medical and surgical needs, noting also that Dr Pemberton is an anaesthetist and not a surgeon.[22] So much is recognised by Dr Pemberton’s statement that the decision whether to proceed or not ‘is a surgical one’.
[22]Which, for the avoidance of doubt, is not a criticism of the opinions expressed by Dr Pemberton.
As things stand, the Surgery that is to be undertaken has been determined to be appropriately undertaken under a general anaesthetic and on the evidence before me that carries with it the risks referred to in the medical evidence extracted above.
Twelfth, I accept the defendant’s submission that proceeding with the examination prior to 8 October 2023 imposes time constraints upon him and his advisers that might be regarded as less than ideal. However, when weighed in the balance with all of the circumstances, and noting the purpose and object of such an examination, I consider it to be in the interests of justice to proceed with the examination as proposed. I reach this conclusion taking into account the nature of the pleaded issues between the parties and the interests of all parties. I also observe that if the risks raised do come to pass there will be an opportunity for both parties to seek to have some or all of the ‘evidence’ given at the examination tendered at trial — or to object to any proposed tender. Whether this will occur, or any application or objection would be successful, is a matter for another day.
The end point with respect to the balancing exercise of all parties’ interests is that justice is best served by ordering, rather than refusing, an examination of Mr Krapivensky prior to the Surgery.
Thirteenth, with respect to the laws of Israel, at the directions hearing on 27 September 2023 I asked that senior counsel consider the position and inform the court if there are any applicable laws that might prevent or otherwise impact upon whether or not the court should make an examination order of the kind contemplated. Senior counsel for the plaintiffs informed the court at the hearing on 2 October 2023 that the position had been considered and that there were no impediments created by the laws of Israel that would impact upon the making of the orders proposed. Counsel for the defendant did not suggest otherwise.
Fourteenth, and in addition, in my view making an order for the examination of Mr Krapivensky well serves the overarching purpose of the CP Act because it will further facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. In reaching this view, I also take into account and have had regard to the court’s obligations under s 8 of the CP Act and the objects referred to in s 9 of that Act.
Finally, I observe for completeness that, after I had ruled upon the adjournment application on 2 October 2023, I raised with the defendant’s counsel the content of paragraph 18 of the defendant’s supplementary written submission. In so doing, I enquired whether the defendant’s position was that, given that I was satisfied on the evidence before the court that the Surgery was in fact scheduled to take place on 8 October 2023, the defendant no longer opposed the making of the examination order. The defendant’s counsel responsibly confirmed that this was the position given my ruling. That said, even if that had not been the case it would not have made any difference to the result given the other matters addressed above, noting also that the court would still have to be satisfied that ordering the examination of Mr Krapivensky was the better course and in the interests of justice — which it is.
Conclusion and proposed orders
I determined that an order should be made pursuant to s 9B(1)(a) of the Evidence MP Act and r 41.01(1)(a) of the Rules for the examination of the first plaintiff before my associate, with such examination to take place audio visually over the Zoom platform from the Supreme Court of Victoria at 3:00pm on 4 October 2023, with Mr Krapivensky being located at his home or such other place as is agreed between the parties.
On 3 October 2023 I addressed with counsel for the plaintiffs and the defendant the precise terms of the proposed orders, and orders were made as follows:
OTHER MATTERS
A.For the hearing on 2 October 2023, the Court was satisfied that the technical requirements in s 42G of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (the Act) were met and that the parties consented to the making of the direction recorded in this order.
B.For the hearing on 2 October 2023, a direction was made pursuant to s 42E(1) of the Act.
C.The solicitor for the plaintiffs, Dr Nadav Prawer, undertakes by senior counsel for the plaintiffs, that the solicitor will file and serve an affidavit by 10:00am on 3 October 2023 that he is instructed and believes that the first plaintiff’s hernia surgery is scheduled to take place on 8 October 2023 at Raphael Hospitals.
D.The first plaintiff by his senior counsel, undertakes that the first plaintiff will forthwith inform the Court and the defendant’s solicitors, in writing, of the cancellation or postponement of the first plaintiff’s surgery.
E.The court was informed by senior counsel for the plaintiffs that:
a. the plaintiffs propose to engage a medical practitioner to examine the first plaintiff prior to 8 October 2023 to assess his competence;
b. the defendant proposes to engage a medical practitioner to examine the first plaintiff prior to 8 October 2023 to assess his competence and it has been agreed that the first plaintiff will be made available (in person or remotely) to enable that examination to occur; and
c. the plaintiffs have agreed to provide to the defendant their letter of instructions to the medical practitioner who is to examine the first plaintiff regarding his competence and the documents to be provided to the plaintiffs’ medical practitioner so that the defendant’s medical practitioner can use that information in connection with the proposed examination of the first plaintiff by the defendant’s medical practitioner if desired.
F.This order is signed by the judge pursuant to rule 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
THE COURT ORDERS THAT, SUBJECT TO FURTHER ORDER:
1.Pursuant to s 9B of the Act and r 41.01(1)(a) of the Rules, Hannah Robbins of 210 William Street, Melbourne, Associate to the Honourable Justice Connock, be appointed as examiner for the purpose of taking the examination, cross-examination and re-examination orally on affirmation of the first plaintiff, Zinovi Krapivensky, at 3:00pm on 4 October 2023 and if necessary at 3:00pm on 5 October 2023 (Examination).
2.The Examination shall take place audio-visually from the Supreme Court of Victoria over the Zoom platform with the first plaintiff being located at his residence at 12 Yahadut Hadmama, Hertzliya in Israel or such other place as is agreed between the parties.
3.The examiner shall not exercise any compulsory powers, and otherwise the Examination shall be taken in accordance with the procedure of Victoria.
4.The examiner will record the deposition by mechanical means, in the form of an audio-visual recording over the Zoom platform and the deposition will be transcribed.
5.The transcribed deposition and the audio-visual recording when taken, together with any documents referred to in the deposition, or certified copies of such documents, or of extracts from those documents, shall be sent by the examiner to the Prothonotary of the Supreme Court of Victoria, 210 William Street, Melbourne Victoria 3000, on or before 27 October 2023 or such further day as may be ordered, to be filed in the Prothonotary’s office.
6.The plaintiffs shall pay the Examination fees prescribed in Practice Note SC GEN 13 in the first instance, with such fees forming part of the costs of the proceeding.
7.By 4:00pm on 3 November 2023, the defendant serve on the parties any proposed amended defence and counterclaim and any proposed amended third party statement of claim.
8.The date in paragraph 3 of the order of Justice Connock made on 9 August 2023 (by which the defendant is to file and serve any cross-vesting application together with any affidavit material in support and an outline of submissions) is extended from 18 September 2023 to 4:00pm on 8 November 2023.
9.The plaintiffs’ application by paragraph 2 of the plaintiffs’ summons filed 27 September 2023 is adjourned for further directions to 10:00am on 10 November 2023 before Justice Connock.
10.The proceeding is listed for further directions at 10:00am on 10 November 2023 before Justice Connock.
11.The costs of:
(a)the plaintiffs’ application by paragraph 1 of their summons filed 27 September 2023; and
(b)the directions hearings on 27 September 2023 and 2 and 3 October 2023,
are otherwise reserved.
12.There is liberty to apply.
SCHEDULE OF PARTIES
S ECI 2023 01851
| ZINOVI KRAPIVENSKY | Plaintiff |
| ALLA KRAPIVENSKY | Second Plaintiff |
| MEDICAL INDUSTRIAL GROUP PTY LTD (ACN 007 148 512) | Third Plaintiff |
| - and - | |
| ANDREY BRODSKY | First Defendant |
| - and - | |
| NATALIE KRAPIVENSKY | Third Party |
AND BETWEEN
| ANDREY BRODSKY | Plaintiff by First Counterclaim |
| - and - | |
| MEDICAL INDUSTRIAL GROUP PTY LTD (ACN 007 148 512) | Defendant by First Counterclaim |
AND BETWEEN
| NATALIE KRAPIVENSKY | Plaintiff by Second Counterclaim |
| - and - | |
| ANDREY BRODSKY | Defendant by Second Counterclaim |
0
2
0