Nedelkovski v Kouzmin (Ruling)

[2016] VCC 50

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

MEDICAL LIST

Case No. CI-10-05957

MARY NEDELKOVSKI	Plaintiff
v
HELEN KOUZMIN	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2016
DATE OF RULING:	2 February 2016 (Revised)
CASE MAY BE CITED AS:	Nedelkovski v Kouzmin (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VCC 50

RULING

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person	-
For the Defendant	No appearance	John W Ball & Sons

HIS HONOUR:

1       On 2 February 2016, I made an Order confirming my Order made 20 March 2014 that the plaintiff’s proceeding be struck out. 

2       The relevant issue of this proceeding is set out in the chronology appended to this Order.  It involves two vacations of the trial date for the proceeding and multiple failures by the plaintiff to attend Directions Hearings and comply with Court Orders.

3       Relevantly, on 20 March 2014, notwithstanding an application that the plaintiff’s proceeding should be dismissed, an Order was made that the proceeding be stayed on the basis that if the plaintiff failed to contact the Court within a period of three months, the proceeding would be struck out.

4       No recorded contact was made by the plaintiff with the Court between January 2014 and 4 December 2015.

5       On 4 December 2015, by reason of telephone contact by the plaintiff with the Court, the matter was listed for a directions hearing on 14 December 2015, at which time an Order was made confirming the Order made on 20 March 2014, but allowing the plaintiff to make application to revive the proceeding by submitting written material in support of that application, by no later than 17 December 2015. 

6       Pursuant to my direction, the plaintiff filed an application to revive the proceeding and on 18 January 2016, an Order was made that by 25 January 2016, the plaintiff file an affidavit in support of her position that the proceeding be revived.

7       As a result of that Order, the plaintiff filed a statutory declaration in which she attested that:

(i)    She had contacted the Registry of the Court on 29 May 2014 and was advised that information would be sent out to her, that no information was forthcoming and that she had thereafter made repeated telephone enquiries to the Court:

(ii)   On 28 May 2015, she had attended the Registry and had been informed:

“… that everyone was at a seminar for 2 weeks and … that if I didn’t call the court by June 2015 that the case would be dismissed.”

8       There is no record of the plaintiff making contact with the Registry on 29 May 2014.

9       There is no issue that at all relevant times the plaintiff was in possession of the phone number of my Associate.

10      In the course of the Directions Hearing on 18 January 2016, the plaintiff provided me with a ‘Post-it’ note which contained details of my Associate’s name and direct Court phone number which the plaintiff acknowledged had been in her possession throughout the relevant period.

11      At the time at which the plaintiff was provided with that number, my Associate had been instructed to bring to my immediate attention any telephone calls made by the plaintiff.  No such calls were brought to my attention.

12      The alleged statement by the Registry of 28 May 2015 is nonsensical, not only upon the issue that the plaintiff’s proceeding was to be dismissed in June 2015 but also as to the issue that no one could assist her for a period of two weeks.

13      To the contrary, the Registry was operating continuously during the relevant period and directions hearings were conducted in the Medical List each Thursday morning during the period between May and December 2015. 

14      The lack of reliability in the plaintiff’s statement is further evidenced by reason of the fact that, even were the plaintiff’s position to be accepted, the plaintiff failed to make any further contact with the Court until December 2015.

15      No step has been taken to advance this proceeding on any relevant basis following the plaintiff’s attendance at a mediation conducted on 27 August 2013.

16      Since 20 June 2014, the defendant has been entitled to take the view that she had no further exposure to the plaintiff’s claim having regard to my Order of 20 March 2014.

17      In affording the plaintiff considerable time to make application to vary the Order that the proceeding be stayed or dismissed, I did so taking into account the fact that the plaintiff was managing her own litigation, that her health was obviously compromised and that she had no stable place of residence during the period in which contact was lost with the plaintiff.

18      I am satisfied that the indulgences afforded to the plaintiff in this instance were generous and that to now make an order reviving the proceeding:

·        would impose a significant injustice upon the defendant; and

·        would give rise to an abuse of process

given my obligation under the Civil Procedure Act 2010 to ensure the timely, just and cost-efficient management of litigation between parties and the minimisation of delay between the commencement of civil proceedings and their determination.

APPENDIX

CHRONOLOGY	PLAINTIFF APPEARANCE?
2010
16 DEC 2010	Writ filed
2011
24 FEB 2011	Defence filed
25 MAY 2011	ORDERS (ICO): Listed for 13 SEP 2011 for parties to advise whether ready to proceed and if so what consent orders sought for listing for trial.  Failure to comply will result in matter being struck out without further notice.
23 SEP 2011	ORDERS (ICO): Listed for 22 NOV 2011 for parties to advise whether ready to proceed and if so what consent orders sought for listing for trial.  Failure to comply will result in matter being struck out without further notice.
6 DEC 2011	ORDERS: Proceeding listed for 14 FEB 2012 for parties to advise whether ready to proceed.  Failure to comply will result in matter being struck out without further notice.
2012
15 MAR 2012	ORDERS: Listed for directions 26 APR.  By then plaintiff is to find new representation.
26 APR 2012	DH ADJ	NO
10 MAY 2012	DH ADJ	NO
14 MAY 2012	ORDER (DH): If P not attend 24 MAY 2012 DH defendant will be entitled to make application proceeding dismissed. For such application defendant to give written notice of application to plaintiff by 18 MAY 2012.	NO
24 MAY 2012	ORDER (DH): By 21 JUN 2012 defendant to provide plaintiff with outline of argument that plaintiff not entitled to damages in the proceeding by reason of Medical Panel filing 16 OCT 2011 (including authorities relied upon). List for directions 15 AUG
22 AUG 2012	ORDER (DH): List for DH 13 SEP 2012.  Should plaintiff fail to attend D at liberty to apply for the proceeding to be dismissed.
12 SEP 2012	ORDER (DH): If sought the plaintiff must file any amended statement of claim (for damages other than P&S) by 3 OCT 2012.  Listed for DH 17 OCT 2012.
7 NOV 2012	ORDER (DH): List for DH 21 NOV 2012.  Should plaintiff fail to attend the proceeding shall be permanently stayed subject to further order of the court.	NO
29 NOV 2012	IN CHAMBERS ORDER: Listed for trial 27 AUG 2013 (FIRST TRIAL DATE). Standard timetable orders.
2013
31 MAY 2013	ORDERS (ICO): Mediation date extended to 25 JUL 2013.
25 JUL 2013	MEDIATION – Mediator notes no appearance by plaintiff.	NO
1 AUG 2013	27 AUG 2013 trial date vacated (FIRST TRIAL VACATED). Should plaintiff fail to attend mediation on 27 AUG 2013 proceeding will be permanently stayed (liberty purely on medical grounds).	NO
27 AUG 2013	MEDIATION – No result.
2 OCT 2013	ORDER (DH): Listed for trial by cause on 16 JUN 2014 (SECOND TRIAL DATE). Should plaintiff fail to attend directions on 9 OCT 2013 the defendant has liberty to apply that proceeding be stayed or dismissed. Listed for DH 9 OCT 2013.	NO
2014
27 FEB 2014	ORDER (DH): List for directions 20 MAR 2014. Should plaintiff fail to appear defendant has liberty to apply that proceeding be stayed or dismissed.	NO
20 MAR 2014	ORDER (DH): By reason of plaintiff’s repeated failure to attend proceeding is stayed 3 months. If court receives no contact from plaintiff in that time proceeding will be struck out.	NO
2015
4 DEC 2015	Phone call from plaintiff received by Marissa Tripodi.
14 DEC 2015	ORDER (DH): Orders of 20 MAR 2014 are confirmed. Any application by plaintiff to revive the proceeding must be made in writing no later than 17 DEC 2015.
2016
18 JAN 2016	ORDER (DH): Plaintiff to file affidavit in support of her position (proceeding should be revived) by 25 JAN 2016. List for directions 1 FEB 2016.
2 FEB 2016	ORDER (DH): Orders of 20 MAR 2014 are confirmed. Application to review order dismissed.  Proceeding stands dismissed.