Shmakova v Darwishi; Martincic v Darwishi - [2024] SADC 84

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SHMAKOVA & ANOR v DARWISHI; MARTINCIC & ANOR v DARWISHI
[2024] SADC 84
Judgment of her Honour Judge Bochner
9 July 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
The appellants are the applicants in two actions arising out of the same motor vehicle collision. The appellants appeal against interlocutory orders made. The appellants require leave to bring these appeals.
Held: leave to appeal is refused.
Uniform Civil Rules 2020 (SA); Civil Liability Regulations 2013, referred to.

SHMAKOVA & ANOR v DARWISHI; MARTINCIC & ANOR v DARWISHI
[2024] SADC 84

The appellants are the applicants in two actions arising out of the same motor vehicle collision. The two actions have been dealt with together by the Master since shortly after they were commenced. It is appropriate that these appeals are dealt with together, as they arise out of the same suite of orders made by the Master on 9 April 2024.
I note that these appeals first came on for hearing on 12 June 2024. At the time of the hearing, the appellants had not filed any of the documents required by the Uniform Civil Rules 2020 (“the UCR”); the only documents on the court file were the notices of appeal. In addition, an interpreter had not been booked to assist the appellants. As a result, I adjourned the hearing of the appeals to 8 July 2024. I made the following orders in each file:
1. The hearing of the appeals is adjourned to 08/07/24 at 10.00am.
2. Within 14 days of today the appellants are to file and serve an appeal book with respect to each appeal containing the documents set out in UCR 217.5 and an outline of submissions.
3. Within 7 days thereafter, the respondent is to file and serve an outline of submissions.
4. Costs reserved.
At the commencement of the hearing on 8 July 2024, the appellants sought an adjournment. There appeared to be three grounds for the application to adjourn.
The first ground was that the appellants had received the respondent’s submissions on Friday 5 July 2024, and not seven days before the hearing, as required by the UCR. As a result, they had not had time to consider the respondent’s submissions nor to file submissions in reply.
I do not consider that this ground supports the appellants’ application for an adjournment. The orders that I made on 12 June 2024 supplanted the requirements of the UCR; that is, the obligations of the parties were governed by the terms of the orders that I made, rather than by the UCR. The appellants were, themselves, in breach of those orders by not filing submissions. The respondent was forced to file submissions without the benefit of the appellants’ own submissions. Arguably, their time for filing submissions did not commence until the applicants had filed their submissions; as this had not occurred, the respondent’s obligation to file submissions had not yet arisen.
The appellants argued that they did not understand that the orders that I made on 12 June 2024 included the obligation on their part to file submissions. I reject this argument. The terms of the orders that I made are clear.
The appellants cannot use their own default to justify an adjournment.
The second ground for an adjournment relied on by the appellants was that the written submissions filed by the respondent were identical in each case, whereas their cases were not in fact identical. Further, the cross-referencing in the respondent’s submissions was incorrect in parts. As a result, the appeal hearing should be adjourned.
I do not consider that this is a good basis for an adjournment. Any deficiencies in the respondent’s submissions is a matter for them. The appellants are free to raise any deficiencies with the respondent’s written submissions in their oral submissions, and I will take them into consideration in my decision making.
Further, I do not consider that any errors in cross-referencing can have caused any confusion. While the filed document numbers in the two primary files are not the same, the orders appealed from in each file are the same. As a result, there can be no doubt in any person’s mind what the issues in contention are.
The third ground for an adjournment raised by the appellants was that the respondent had made reference to the transcript of the hearing before the Master on 9 April 2024. The appellants have not received the transcript and therefore they required an adjournment to allow them to obtain it.
This is not a reasonable basis to adjourn the appeal hearing. The appellants were aware from at least 10 April 2024 that, if they wished to obtain the transcript of the hearing on 9 April 2024, they needed to apply to the Registry for it, and pay the required fee. They chose not to do so. They cannot now use their failure to obtain the transcript as a ground for an adjournment.
At the hearing on 8 July 2024, an interpreter, Ms Joy, was present to assist the appellants. Ms Joy was booked by the Registry, using one of the agencies commonly used by the Court. During the course of the hearing, one of the appellants, Mr Martincic questioned the competence of Ms Joy, and several times made statements to the effect that he was unassisted by an interpreter. I consider that there was no foundation to Mr Martincic’s suggestion that Ms Joy lacked the competence to assist in the matter or that he was unassisted by her. Ms Joy was working in very difficult circumstances: Mr Martincic would not give her the time to interpret, constantly interrupted her and spoke over her and others. In addition, the other appellant, Ms Shmakova, sat behind her and interjected incessantly with commentary on Ms Joy’s interpreting skills. At times, Mr Martincic corrected Ms Joy’s translation, by substituting a word that had the same meaning as the word used by Ms Joy. I consider that, if Mr Martincic felt that he was unassisted by Ms Joy, it was because he deliberately sabotaged her attempts to assist him and did not allow her to do her job properly.
In the circumstances, I refused to adjourn the hearing of the appeals.
The appellants’ arguments on the appeals
Mr Martincic made submissions on behalf of both appellants. At the end of his submissions, I gave Ms Shmakova the opportunity to make her own submissions.
I note that Mr Martincic spent more than two hours dealing with the request for the adjournment and his submissions. In the end, I limited the time for him to complete his submissions, to ensure that the respondent had time to make his submissions. Ultimately, Mr Ward, who appeared on behalf of the respondent, had less than an hour to address the matters that he wished to raise.
The appellants did not address their grounds of appeal in any reasoned way. The crux of their submissions appears to be that they did not say the things attributed to them by the Master in her orders, and Mr Ward in his submissions. They made a number of submissions about the use of false evidence; these submissions did not appear to relate to the grounds of appeal or the orders appealed from. They said that they did not consent to see the specialist chosen by the respondent, Dr Reiter, and that she does not have the relevant expertise to give an opinion of their medical conditions. They further submitted that they had reached an agreement with the insurer in 2022 about medical examination and that the respondent could not unilaterally depart from this agreement, nor could the Court make orders inconsistent with this agreement.
The respondent’s submissions
Mr Ward submitted that these cases were being frustrated by the conduct of the appellants. They were bogged down by constant delay caused by the actions of the appellants, who refused to attend medical examinations organised by the respondents.
As to the statements which the appellants said were wrongly attributed to them, Mr Ward pointed to specific extracts from the transcript of the hearing on 9 April 2024, which made it clear that Mr Martincic had said the words referred to by either the Master or Mr Ward. Mr Ward said that there can be no doubt that the appellants made the statements attributed to them.
On the question of examination by a medical specialist chosen by the respondents, Mr Ward referred to the Civil Liability Regulations 2013. In particular, he referred to the following:
20—Attendance at medical examinations
(1)     An injured person must—
(a)     submit himself or herself to any medical examination or assessment by a health professional selected or nominated by the insurer that the insurer may require; and
(b)     within 21 days of consulting a health professional in relation to the injury to which the claim relates, or such longer period as may be reasonable in the circumstances of the case or as the insurer may allow, inform the insurer, by notice in writing, of—
(i)    the name of the health professional; and
(ii)     the day on which the consultation occurred; and
(c)     within 21 days of receiving a written report from a health professional consulted by the person in relation to the injury, or such longer period as may be reasonable in the circumstances of the case, send a copy of that report to the insurer.
(4)Where a written report is obtained by the insurer on the findings made, or the opinions formed, by a health professional on the examination or assessment of an injured person under subregulation (1)(a), the insurer must, within 21 days of receiving the report, send a copy of the report to the injured person
….
22—Provision of information to accredited health professionals
A request for an examination or assessment made to an accredited health professional for the purposes of an ISV assessment must be accompanied by a copy of each of the following:
(a)     any relevant medical history, records or notes provided by the injured person's medical practitioner (if available);
(b)     any relevant hospital notes;
(c)     any other medical information so far as it is relevant to the injured person's claim;
(d)     any documents required by rules of court or practice directions.
23—Reports by accredited health professionals
(1)An accredited health professional who is sent a request for an examination or assessment must provide a written report to the insurer within 30 days of the examination or assessment which gives an opinion with respect to—
(a)     diagnosis; and
(b)     prognosis; and
(c)     injury stability; and
(d)     whether the injury is consistent with the stated cause; and
(e)     the effect of the MVA motor accident on any pre‑existing injury and the extent to which it has been made worse by the injury; and
(f)     the effect of the MVA motor accident on any subsequent injury and the extent to which it has been made worse by the injury; and
(g)     whether the assessment was based on AMA5 or other criteria with detailed reasons; and
(h)     in a case of pure mental harm—the GEPIC rating with detailed reasons; and
(i)    if relevant, the whole person impairment; and
(j)    the ISV item number; and
(k)     any other relevant matter if the insurer and injured person reach agreement.
(2)A report provided under subregulation (1) must be in a form determined by the designated Minister (and include any information required by that form).
(3)The insurer must, on receipt of a report under this Division, provide the injured person to whom the assessment relates with a copy of the report within 21 days.
Mr Ward submitted that these regulations make it clear that there is no substance to the appellants’ grounds of appeal. They make it clear that the appellants must attend medical examinations arranged for them by the insurer, and that the medical practitioner must provide an opinion on the extent to which the injuries the subject of the claim have had an effect on any earlier injury, or have been affected by any subsequent injury. As a result, it was appropriate for the medical practitioner to be apprised of all motor vehicle accidents in which the appellants have been involved, including those which are the subject of legal proceedings, in addition to the subject claim. The orders complained of simply reflect the terms of these regulations.
Mr Ward submitted that no exception could be taken to the procedure adopted by the Master during the hearing on 9 April 2024. She explained all matters clearly to the appellants and gave them time to consider their position. She made the orders now complained of only after the appellants had agreed to their terms.
Mr Ward further submitted that the grounds of appeal 6, 7, 8 and 10 are not relevant. He further submitted that the appellants require leave to appeal, which they have not sought.
Consideration
The appellants require leave to bring these appeals. These appeals have no merit, and leave to appeal is refused. To the extent that I am wrong about the need for leave, I consider that the appeals should be dismissed on the basis that they have no merit.
The Civil Liability Regulations make it very clear that the appellants, if they wish to pursue their claims, must submit themselves to medical examination at the request of the respondent. The insurer has the right to choose the medical practitioner by whom the appellants are to be examined. The medical practitioner must express an opinion on the extent to which the injuries said to have been caused by the motor vehicle collision which is the subject of the claim have been affected by a later injury, or have affected an earlier injury. As a result, it is appropriate for the insurer to provide the medical practitioner with details of other motor vehicle accidents in which the appellants have been involved and injuries which they say they have suffered and for which they seek compensation. This is a necessary requirement if the appellants wish to pursue these claims.
As a result, there is no basis to grounds 1 to 5 in the appellants’ grounds of appeal.
Ground 6 cannot be viewed as a ground of appeal. It is merely a statement about something said in correspondence between the parties. Grounds 7 and 8 are irrelevant. This appeal does not deal with the non-payment of invoices by the insurer. Ground 10 is also irrelevant. It is also scandalous. In this ground, the appellants say that the insurer has made misleading or untrue statements. No evidence has been produced to support this allegation.
Ground 9 reads:
The Applicant cannot remember ever saying such a sentence in Order (FDN 36), Order Number 9.
Order 9 of the Master’s orders provides:
I note the applicants withdraw their request that the respondent’s representative be removed form representing the respondent.
During the hearing, the following exchange occurred between the Master and Mr Martincic:
MASTER:         Okay. Now, are you still pushing for an order that Mr Alvaro be removed from the case? I'm not sure if I have the power to make such an order.
MR MARTINCIC:    * I'm not - I would say if you were ... our life consists from compromise, is what I experience in my life, and according to this I am always looking for compromise, and while I think compromise is always the best way for both sides, only people who are not so educated or thinking - yeah, something, this is the reason. But I would like also to give a hint, nobody knows what happened in the future.[1]
[1]    T43.13-23.
It is clear that Mr Martincic no longer pressed his application to have the respondent’s lawyer removed from the file. There is no basis to this ground of appeal.
Throughout the hearing of the appeal, Mr Martincic took issue with the statements attributed to him by Mr Ward in his written submissions. All of the statements referred to by Mr Ward are supported by transcript references. I have checked all of the transcript references in the submissions and am satisfied that Mr Martincic said all of the statements attributed to him by Mr Ward.
These appeals have no merit. The appellants are obliged to attend medical examination at the request of the insurer, if they wish to pursue their claims. The orders made by the Master are consistent with the requirements of the Civil Liability Regulations and were made in consultation with the appellants.
I remind the appellants that they are bound by UCR 3.1. The fact that they are representing themselves does not exempt them from compliance with this rule. I set out the terms of this rule here so that there can be no doubt that the appellants are aware of its terms:
3.1—Overarching obligations
(1)A party or a person appearing or required to appear before the Court must in relation to a proceeding or an appellate proceeding—
(a)     act honestly;
(b)     not engage in misleading conduct;
(c)     not take a step that is frivolous, vexatious or an abuse of process;
(d)     not make an assertion or response to an assertion for which they do not, on the material available at the time, have a proper basis;
(e)     not take a step unless they reasonably believe that it is necessary to facilitate the resolution or determination of the proceeding;
(f)     cooperate with the other parties and with the Court in relation to the conduct of the proceeding;
(g)     use reasonable endeavours to resolve, or alternatively narrow the scope of, a dispute in or the subject of the proceeding by agreement;
(h)     use reasonable endeavours to ensure that the time and costs incurred are reasonable and proportionate to—
(i)the importance and value of the subject matter of the proceeding or step in the proceeding; and
(ii)     the complexity of the issues in the proceeding or step in the proceeding;
(i)    comply with these Rules and orders made by the Court;
(j)    be prepared for and ready to proceed with a hearing, directions hearing or trial at the appointed time; and
(k)     use reasonable endeavours to act promptly and minimise delay.
The pursuit of this appeal raises the question of a breach of UCR3.1(1) by the appellants. This is a matter that may be taken into consideration on the question of costs.
Leave to appeal is refused. In the alternative, the appeals are dismissed.
I will hear the parties on the question of costs.