Von Reisner v Chepurin - [2012] NSWCA 418

Court of Appeal

New South Wales

Case Title: von Reisner v Chepurin

Medium Neutral Citation: [2012] NSWCA 418

Hearing Date(s): 3 December 2012

Decision Date: 03 December 2012

Before: Ward JA

Decision:
Application to vacate the hearing date dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - application to vacate hearing date - medical and Occupational Health and Safety grounds - weight to be given medical evidence in summary form - relevance of Occupational Health and Safety legislation

Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 293 CLR 175
Forster v Harvey [2006] NSWSC 1112

Category: Interlocutory applications

Parties: Koidu von Reisner (Appellant)
Dr Oleg Chepurin (First Respondent)
Dr Sophia Wayne-Shevchuk (Second Respondent)

Representation

- Counsel: Counsel:
D Grant (Respondents)

- Solicitors: Solicitors:
Meridian Lawyers (Respondents)

File Number(s): CA 10/112105

JUDGMENT (EX TEMPORE)

HER HONOUR: This is an application by Ms von Reisner to vacate the hearing date of her application to review a decision by Young JA on 9 May 2011 (his Honour having dismissed a Notice of Motion by Ms von Reisner for, among other things, a referral for pro bono legal assistance and a stay). Ms von Reisner's application for reveiw is presently listed for hearing on 7 December 2012. There was no appearance by Ms von Reisner on this application to vacate the hearing date. I am informed that Ms von Reisner did not appear when the matter was before the Registrar this morning and that Ms von Reisner had previously indicated to the Registrar that she did not intend to appear on today's application to vacate the hearing date.
There appear to be two bases on which the application to vacate the hearing date is made. The first is in relation to Ms von Reisner's state of health and the second is the (related) claim by Ms von Reisner that a vacation of the hearing is required pursuant to Occupation Health and Safety requirements.
As to the first of those matters, Ms von Reisner has included in the material forwarded to the Court a number of certificates by various medical practitioners (a physician, a gastroenterologist, a cardiologist, a respiratory physician and another doctor). A number of those medical certificates appear to have certified that an adjournment is necessary on the basis of Ms von Reisner's own instructions that this is the case. Dr Freedman has stated simply that Ms von Reisner has ongoing investigations into multiple medical conditions and "currently remains unfit" for Court proceedings and that an adjournment is necessary until 1 April 2013. Dr Kim, who has given…

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.

Continue reading Von Reisner v Chepurin

Details

AGLC: von Reisner v Chepurin [2012] NSWCA 418
Case: [2012] NSWCA 418
Decision Date: 03 December 2012

CaseChat Overview and Summary

In *Von Reisner v Chepurin*, the applicant sought to vacate a hearing date on grounds relating to medical and Occupational Health and Safety concerns. The matter came before Ward JA in the Court of Appeal of New South Wales.

The primary legal issue before the Court was the weight to be given to medical evidence presented in summary form when considering an application to vacate a hearing date, and the relevance of Occupational Health and Safety legislation to such an application.

Ward JA dismissed the application, finding that the medical evidence provided was insufficient to warrant vacating the hearing date. The Court considered the principles governing the adjournment of proceedings and the need for compelling reasons to disrupt the court's timetable. The applicant's submissions regarding Occupational Health and Safety were also found not to be determinative in this context.

The application to vacate the hearing date was dismissed with costs.

Orders

Orders of the court

Application to vacate the hearing date dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Case Title:	von Reisner v Chepurin
Medium Neutral Citation:	[2012] NSWCA 418
Hearing Date(s):	3 December 2012
Decision Date:	03 December 2012
Before:	Ward JA
Decision:	Application to vacate the hearing date dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - application to vacate hearing date - medical and Occupational Health and Safety grounds - weight to be given medical evidence in summary form - relevance of Occupational Health and Safety legislation
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 293 CLR 175 Forster v Harvey [2006] NSWSC 1112
Category:	Interlocutory applications
Parties:	Koidu von Reisner (Appellant) Dr Oleg Chepurin (First Respondent) Dr Sophia Wayne-Shevchuk (Second Respondent)
Representation
- Counsel:	Counsel: D Grant (Respondents)
- Solicitors:	Solicitors: Meridian Lawyers (Respondents)
File Number(s):	CA 10/112105