Luck v Hunter

[2000] FCA 1956

FEDERAL COURT OF AUSTRALIA

Luck v Hunter [2000] FCA 1956

GAYE LUCK (FORMERLY KUPERMAN) v DR ROSS HUNTER, R B HUNTER (MEDICAL) PTY LTD ACN 088 496 995, NOCDOC, DR D MCALPINE, AITKENVALE MEDICAL CENTRE PTY LTD ACN 011 003 231, DR PETER BUCHANAN, DR HENRY LAU, CONSULTANT PATHOLOGISTS (TOWNSVILLE) PTY LTD ACN 010 106 680, DR GRANT WITHEY AND QUEENSLAND X-RAY SERVICES BN 3332160

V 392 OF 2000

DOWSETT J
7 DECEMBER 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 392 OF 2000

BETWEEN:

GAYE LUCK (FORMERLY KUPERMAN)
APPLICANT

AND:

DR ROSS HUNTER
FIRST RESPONDENT

R B HUNTER (MEDICAL) PTY LTD ACN 088 496 995
SECOND RESPONDENT

NOCDOC
THIRD RESPONDENT

DR D MCALPINE
FOURTH RESPONDENT

AITKENVALE MEDICAL CENTRE PTY LTD ACN 011 003 231
FIFTH RESPONDENT

DR PETER BUCHANAN
SIXTH RESPONDENT

DR HENRY LAU
SEVENTH RESPONDENT

CONSULTANT PATHOLOGISTS (TOWNSVILLE) PTY LTD ACN 010 106 680
EIGHTH RESPONDENT

DR GRANT WITHEY
NINTH RESPONDENT

QUEENSLAND X-RAY SERVICES BN3332160
TENTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	7 DECEMBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This hearing date was fixed on 27 October 2000, a previous directions hearing.  At that time the applicant did not appear although her local rector appeared on her behalf, or sought to do so.  I advised him of the proposed date of hearing today and asked him to communicate that information to the applicant.  In any event, there is no doubt that she was aware of it.  Exhibits 1 to 7 indicate an ongoing course of correspondence between the registry and the applicant which make it clear that she was aware of the hearing today.  Mr Gasteen's first affidavit filed on 5 December demonstrates that two of the relevant notices of motion for present purposes were served upon her.  I am told that an affidavit (based on knowledge and belief) as to service of the third notice of motion will be filed, but it is probably not necessary in view of the fact that the applicant, in ex 4 to Mr Gasteen's affidavit read by leave today, indicates that she is aware of the application which the fifth respondent seeks to make today pursuant to that notice.  Exhibits 1 to 7 demonstrate great reluctance on the applicant’s part to appear.  Without wishing to attach any significance to it, I observe that this has been a continuing theme in this litigation since it was transferred from the Melbourne registry to the Brisbane registry. 

2. The applicant asserts that she is incapable of appearing today either by video link or in person because of her health.  Apart from her own opinion on this matter, her evidence is supported by two medical certificates.  The first is dated 16 November 2000 and it is in the form of a certificate of incapacity to work, certifying that in the view of her doctor, Dr Lebedev, she is unable to attend to her usual duties on account of personal illness for the period from 16 November 2000 to 10 January 2001.  Next to the heading “Certificate of Incapacity to Work” the words “and other stressful activities” have been added.  Whether or not those words were inserted by Dr Lebedev or by somebody else, one would not know.  However, even accepting the report at face value it does not indicate any understanding of the nature of these proceedings, nor does it say anything about when the applicant may be ready and able to attend to her affairs in this Court.  In any event, the certificate is not in an admissible form.  The respondents have not had an opportunity to cross-examine in respect of it.

3. On 5 December Ms Luck again wrote saying that she was incapable of appearing and on that day, or perhaps the following day, forwarded a further medical certificate which is difficult to read but which appears to be again from Dr Lebedev.  It states:

   This patient is suffering from scleroderma (progressive systemic sclerosis) due to stress and anxiety imposed on her by legal proceedings she is undertaking.  Ms Luck requires time to undergo treatment, rest and recuperation.  In addition, she is committed to undergo exams at the university which causes additional stress.  She needs three months for recuperation.

4. The letter says nothing about her capacity to participate in these proceedings and seems to assume that she is capable of participating in the presumably stressful activity of sitting university examinations. 

5. It should be noted that the Deputy District Registrar responded to the applicant’s letter with which the certificate was enclosed, indicating to her that these proceedings would take place today and that if she failed to appear, it would be open to the judge to make orders which “adversely affect you”.  (See ex 1.)  Ms Luck was also advised by letter of 5 December that any adjournment based on her medical condition would be dependent upon a detailed medical report confirming the seriousness of her condition rendering her unable to attend and indicating the duration of the incapacity.  On 6 December the registry wrote in response to the applicant’s fax of 5 December indicating that if she wished to seek an adjournment she would have to make formal application to the Court on notice to other parties.  She was told that the motion would have to be accompanied by an affidavit, preferably by her treating doctor, who might also be required for cross-examination.  Ms Luck has not appeared today.

6. In those circumstances, and in the absence of any convincing evidence from a medical practitioner suggesting that she is actually unable to participate in these proceedings, and in the absence of any opportunity for the respondents to cross-examine any medical practitioner as to his or her opinion, the matter should proceed.

7. These reasons they will apply equally to those of all motions in the various

   proceedings before me today in which Ms Luck is the applicant.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            22 February 2001

There was no appearance for the Applicant:
Counsel for the First, Second, Fifth, Sixth, Seventh, Eighth and Ninth Respondents:	Mr R Traves
Solicitor for the First, Second, Sixth, Seventh, Eighth and Ninth Respondents:	Tress Cocks & Maddox
Solicitor for the Fifth Respondent:	Boulton Cleary & Kern
Counsel for the proposed Eleventh – Forty-Third Respondents:	Ms H Bowskill
Solicitor for the proposed Eleventh – Forty-Third Respondents:	Minter Ellison
Date of Hearing:	7 December 2000
Date of Judgment:	7 December 2000