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)

1. 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.

2. 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.

3. 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 a letter stating that Ms von Reisner is suffering multiple systemic symptoms, has said that Ms von Reisner has "as yet, undiagnosed neutropenia and leukopenia" and that Ms von Reisner believes she is currently not well enough to go through the Court system because of her symptoms. Dr Kim further records that Ms von Reisner believes she will not be able to attend Court proceedings at this stage and probably until 1 April 2013 and that she will be re-assessed at that time to determine if she is fit enough to proceed from there. There is a medical certificate from Dr Yiannikas to similar effect.

4. In Forster v Harvey [2006] NSWSC 1112, Young CJ in Eq (as his Honour then was) noted that while the power to proceed with a trial (if the party is absent when the trial is called on), is exercised sparingly (because generally speaking if a person is genuinely ill or unable to take part in the proceeding, the Court should adjourn the matter until the appropriate time) that there are situations where the Court would take another course. One is where a party is so ill that it is unlikely that, even if the case is adjourned, he or she will be in any better position on the next day or the next occasion, and another is that, where there have previously been delays due to alleged illness, if there is to be an application for adjournment it must be by a motion supported by appropriate evidence. His Honour made comments as to the weight to be attached to medical certificates in brief form of the kind that have been put before me on the present application.

5. These proceedings relate to a dispute that extends back to 2002 in the District Court. There have been a number of applications in the District Court since then. The respondents are anxious for the matter to be determined.

6. The medical certificates that have been provided leave me with little confidence that if the hearing were to be vacated until next year, Ms von Reisner would be in any better position to deal with the matter at that stage. They are summary in content and seem to reflect little more than Ms Reisner's belief as to her position.

7. As to the second basis, I am not satisfied that Ms von Reisner's invocation of the Occupational Health and Safety legislation is of relevance in the current circumstances. Ms von Reisner is the party bringing this application, not a "worker" within the contemplation of the legislation. Insofar as there are medical certificates going to the potential need for Ms von Reisner to lie down on a bed during the Court proceedings, such issues can be dealt with (if they arise) by application during the course of the hearing of the application for review.

8. I am not satisfied that it is appropriate in the interests of Court management, and having regard to the principles outlined in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, to vacate the hearing date. I dismiss the application to vacate the hearing date with costs.

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