McNeill v Avalon Surf Life Saving Club (No 2); McNeill v Avalon Surf Life Saving Club (No 2)

[2013] NSWLEC 189

Land and Environment Court

New South Wales

Medium Neutral Citation:

McNeill v Avalon Surf Life Saving Club (No 2); McNeill v Avalon Surf Life Saving Club (No 2) [2013] NSWLEC 189

Hearing dates:

6 November 2013

Decision date:

06 November 2013

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

Application to vacate hearing date dismissed with costs.

Catchwords:

PROCEDURE: application to vacate hearing date on medical grounds - adequacy of medical evidence - application dismissed with costs.

Legislation Cited:

Civil Procedure Act 2005, ss 56-60

Cases Cited:

Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218

Lane Cove Council v Ross (No 13) [2013] NSWLEC 80

McNeill v Avalon Surf Life Saving Club; McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 177

Palerang Council v Banfield [2012] NSWLEC 85

Category:

Procedural and other rulings

Parties:

Mr John McNeill (Applicant)
Avalon Surf Life Saving Club (First Respondent)
Pittwater Council (Second Respondent)

Representation:

Mr J McNeill (in person) (Applicant)
Ms F Berglund (First Respondent)
Miss M Carpenter (Second Respondent)
N/A (Applicant)
N/A (First Respondent)
King & Wood Mallesons (Second Respondent)

File Number(s):

40373 and 40349 of 2013

EX TEMPORE Judgment

Mr McNeill Makes a Further Application to Vacate the Hearing Date on Medical Grounds

1. The background to the making of this application to vacate a hearing date on medical grounds by the applicant, Mr John McNeill, is set out in McNeill v Avalon Surf Life Saving Club; McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 177. It is not repeated here for the sake of brevity but is relied upon by the Court for the purpose of this application.

1. When the matter last came before the Court, Mr McNeill was successful in his application to vacate the hearing date on medical grounds, albeit by the barest of margins, for the reasons contained in McNeill. During the course of that application, however, the Court made it clear to Mr McNeill on a number of occasions that any further application to vacate the hearing on medical grounds would only be entertained if it was made by way of notice of motion accompanied by affidavit evidence from Mr McNeill, and importantly, that any medical evidence that Mr McNeill sought to rely upon in support of his application would have to be in the form of an affidavit deposed to by the medical practitioners upon whose opinion Mr McNeill relied. An order to this effect was made by the Court at the conclusion of those proceedings (at [21(3)]).

1. As was explained to Mr McNeill during that hearing, this requirement was to enable the medical evidence to be tested by the respondents, if they so desired, for example, by cross-examining the medical practitioners. At that hearing, Mr McNeill gave no indication that he did not understand the intention of the Court in making the order or the substance of the order itself.

1. On 4 November 2013, however, Mr McNeill filed a notice of motion seeking to vacate the hearing date of 6 November 2013 on medical grounds. He relied upon only two affidavits, both sworn by him on 1 and 4 November 2013 respectively.

1. Those affidavits stated, in short, that Mr McNeill was still suffering from the effects of the injuries giving rise to his earlier application to vacate. Further, Mr McNeill was "suffering from symptoms of concussion from the incident that caused me to vacate the date previously". In addition, he stated that he was "still feeling the effects of the head/neck injury" which he had suffered on 7 October 2013.

1. Attached to his earlier affidavit was a medical certificate signed by Dr Michael Bishop and dated 31 October 2013, in identical terms to the certificate provided by Dr Bishop on 14 October 2013 for the purpose of the application to vacate on 16 October 2013. The only difference between the text of the two certificates was that, with no further explanation given by Dr Bishop, Mr McNeill was "unfit to submit his legal documents for a court case from 31/10/2013 to 02/12/2013 inclusive".

1. Also attached to the earlier affidavit was a letter written by Tariq Cachalia dated 29 October 2013, from the Neurosurgery Clinic, "RNSH", which I infer to be Royal North Shire Hospital together with some discharge notes prepared by the same person. The letter stated that Mr McNeill had presented himself to the hospital on 29 October 2013 with neck pain. The notes stated that "he has pain in the neck with movement and occasional numbness C8 distribution of left arm. There has been no weakness in arm and no pins and needles". The discharge notes confirmed the contents of the letter and provided some additional information, including the fact that Mr McNeill had requested an MRI for his cervical spine and that he had been booked on that day for a brain MRI. The notes went on to state that Mr McNeill had injured his neck a month ago and had had some neck pain since that time. The neck pain however was, according to the notes, gradually improving, but that Mr McNeill had intermittent numbness in his left hand. Mr McNeill had a referral from a GP but because the referral was not from a specialist it was not valid and the requested spinal MRI could not be proceeded with on that day. The notes described Mr McNeill as "alert and oriented".

1. Contrary to the orders made by the Court on the last occasion, none of the medical evidence relied upon by Mr McNeill, namely, the medical certificate of Dr Bishop and the letter and discharge notes of Tariq Cachalia, were in proper affidavit form. They therefore could not be, as both the first and second respondents both sought to do expressly in written communications with Mr McNeill prior to today, be tested in any way.

1. In addition to the medical evidence not being able to be tested by the respondents, the non-compliance with the earlier order of the Court was problematic for two further reasons:

(a)   first, the identical wording of the two medical certificates provided by Dr Bishop provided no real information on what ongoing condition Mr McNeill was suffering from or gave any reason why he was still not fit to prepare legal documents, and therefore, presumably to proceed with the hearing; and

(b)   second, the paucity of the information contained in Tariq Cachalia's medical material again failed to provide any explanation as to why Mr McNeill could not proceed with the hearing of his matters.

1. The Court was also concerned that, unlike the last application, Mr McNeill had delayed in obtaining a new medical certificate until four working days prior to the hearing and had not sought further investigation of his alleged spinal injuries until 29 October 2013, well after the date of his last application for a vacation on medical grounds on 16 October 2013 and again only just before the hearing was due to commence.

1. The Court adjourned temporarily for Mr McNeill to make enquiries as to whether or not the doctors upon whose opinion he relied for the purposes of the vacation application were available to attend Court in order to be cross-examined by the respondents. After a brief adjournment Mr McNeill informed the Court that they were not available.

1. The Court therefore proceeded to entertain the application to vacate notwithstanding Mr McNeill's non-compliance with the order made on the last occasion in respect of the medical evidence, but as a consequence of the non-compliance and the lack of detail contained in that evidence, placed very little weight on this evidence.

1. The absence of any information in any of the evidence relied upon by Mr McNeill explaining why he was unfit to conduct the scheduled hearing, combined with an absence of any cogent explanation from Mr McNeill concerning his delay in seeking further medical assistance and medical evidence to support his application, meant that on this occasion a vacation of the hearing date on medical grounds could not be justified as an appropriate exercise of the Court's discretion having regard to the principles enshrined in ss 56-60 of the Civil Procedure Act 2005 and authorities such as Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218; Palerang Council v Banfield [2012] NSWLEC 85 and Lane Cove Council v Ross (No 13) [2013] NSWLEC 80.

Orders

1. In conformity with the reasons given above, Mr McNeill's application to vacate the hearing date is therefore dismissed.

1. Mr McNeill must pay the first and second respondents' costs of the application.

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Decision last updated: 07 November 2013