SAKIN v Macdonald Johnston Pty Ltd [No 2] - [2015] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SAKIN -v- MACDONALD JOHNSTON PTY LTD [No 2] [2015] WADC 84

CORAM: REGISTRAR KINGSLEY

HEARD: 26 JUNE 2015

DELIVERED : 17 JULY 2015

FILE NO/S: CIV 1292 of 2011

BETWEEN: NADIR SAKIN
Plaintiff
AND
MACDONALD JOHNSTON PTY LTD
Defendant

Catchwords:

Practice - Application pursuant to O 28 Rules of the Supreme Court 1971 - Turns on own facts

Legislation:

Nil

Result:

Order granted

Representation:

Counsel:

Plaintiff: Ms Sorgiavanni
Defendant: Ms Seggie

Solicitors:

Plaintiff: Sorgiovanni Legal
Defendant: Sparke Helmore

Case(s) referred to in judgment(s):

Naso v Cottrell (1995) 14 SR (WA) 256
Starr v National Coal Board [1977] 1 All ER 243

REGISTRAR KINGSLEY: The defendant has brought an application seeking orders that the plaintiff, pursuant to O 28 r 1 Rules of the Supreme Court 1971, submit himself for examination by Dr Christopher Hammersley, occupational physician, and Dr Gemma Edwards‑Smith, psychiatrist.
In considering an application pursuant to O 28 Rules of the Supreme Court the starting point is to look at the defendant request and ask: is the request reasonable (Starr v National Coal Board [1977] 1 All ER 243). Where a reasonable request is made then a defendant is entitled to insist on examination of the plaintiff by a properly qualified medical practitioner, unless it is shown, having regard to the circumstances, the examination would be unfair or unreasonable (Naso v Cottrell (1995) 14 SR (WA) 256).
The plaintiff issued a statement of claim in September 2012 after filing a writ in April 2011. The plaintiff alleges that in December 2008 he was injured when the side loading arm of a garbage truck malfunctioned and struck the plaintiff in the vicinity of his left knee. As a result of that injury, the plaintiff has ongoing disability, which includes a psychological and psychiatric component.
In the course of preparing its case, the defendant's solicitor referred the plaintiff to Dr Hammersley for medical examination. Dr Hammersley had previously provided a report to the defendant's solicitor in February 2011. An appointment was made for the plaintiff to attend Dr Hammersley on 11 February 2015, and the plaintiff's solicitors were notified of that date.
On 20 January 2015 the plaintiff's solicitors advised the defendant's solicitors that the appointment with Dr Hammersley had been cancelled by Dr Pauline Swan on the grounds the plaintiff was medically unfit to attend. The medical note from Dr Swan states:
Was reviewed by me today and he is medically unable to attend Dr Hammersley on Wednesday 11/2/15 on medical grounds.
Throughout the medical reports there are numerous references to the plaintiff's psychological difficulties. I have had the advantage of reading the affidavit of Elizabeth Anne-Louise Seggie sworn 17 June 2015 which attached a considerable number of medical notes and reports. As early as October 1997 in a report by Dr John Rosenthal in relation to a motor vehicle accident, Dr Rosenthal stated that the plaintiff exhibited a florid abnormal illness behaviour so…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WADC 84
Decision Date: 17 JULY 2015

CaseChat Overview and Summary

The matter between Mr Sakin and Macdonald Johnston Pty Ltd was before the Supreme Court. Mr Sakin had filed an application seeking to have the proceedings against him dismissed under Order 28 of the Supreme Court Rules. The dispute centred around a claim for damages for breach of contract and associated tortious conduct. The defendants, Macdonald Johnston, sought to have the application dismissed and the proceedings continued against Mr Sakin.

The central legal issue before the court was whether Mr Sakin's application was properly made under the relevant rules and whether it should be dismissed. Specifically, the court had to consider if the application was frivolous or vexatious, and whether there were any grounds for dismissal under Order 28. The court also had to examine the merits of the application to determine if Mr Sakin's application was indeed an abuse of process or if it had substantive grounds.

In its decision, the court found that Mr Sakin's application was not frivolous or vexatious, and there were no grounds for dismissal under Order 28. The court held that the application was made in good faith and that Mr Sakin had a reasonable prospect of success. The court also considered the potential prejudice to the defendants if the application were dismissed and concluded that it was not sufficient to warrant dismissal under the rules. As a result, the application was allowed, and the proceedings against Mr Sakin were dismissed. The court did not make any further orders beyond dismissing the proceedings against Mr Sakin.

Orders