Von Reisner v Chepurin - [2013] NSWSC 150

Supreme Court

New South Wales

Medium Neutral Citation: Von Reisner v Chepurin [2013] NSWSC 150
Hearing dates: 21/2/2013
Decision date: 05 March 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The statement of claim filed 12 November 2010 is dismissed.
(2) Leave is not granted to the plaintiff to file an amended statement of claim.
(3) The plaintiff is to pay the defendants' costs of the proceedings on an ordinary basis as agreed or assessed.

Catchwords: PROCEDURE - dismissal sought by defendants - unrepresented plaintiff seeking special timetable in order to obtain medical evidence - lengthy history of adjournments - plaintiff on notice since 2010 that statement of claim defective - leave to file amended statement of claim denied - statement of claim dismissed
Legislation Cited: Competition and Consumer Act 2012 (Cth)
Disability Discrimination Act 1982 (Cth)
Fair Trading Act 1987
Frustrated Contracts Act 1978
Sale of Goods Act 1923
Therapeutic Goods Act 1989 (Cth)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 179 CLR 269
Forster v Harvey [2006] NSWSC 112
Von Reisner v Oleg Chepurin (NSWSC, Bergin CJ in Eq, 15 November 2010, unreported)
Von Reisner v Chepurin [2010] NSWCA 29
Von Reisner v Chepurin [2011] NSWCA 162
Von Reisner v Chepurin [2012] NSWCA 418
Von Reisner v Chepurin [2012] NSWCA 422
Category: Procedural and other rulings
Parties: Koidu von Reisner (Plaintiff)
Dr Oleg Chepurin (First Defendant)
Dr Sophia Wayne-Shevchuk (Second Defendant)
Representation: Counsel:
AJ Bowen (First & Second Defendants)
Solicitors:
Plaintiff in person
Meridian Lawyers (First & Second Defendants

File Number(s): 2010/377750

Judgment

HER HONOUR: The main issue to be decided is whether the plaintiff should be granted leave to replead her statement of claim. By amended notice of motion filed 31 January 2013, the first and second defendants seek, firstly, an order that the statement of claim in these proceedings be dismissed pursuant to Rule 13.4 or 14.28 or 12.7(1) of the Uniform Civil Procedure Rules 2005 (UCPR).

By notice of motion filed 17 December 2012, the plaintiff seeks (as best as I can ascertain), firstly, an order pursuant to the Trade Practices Act 1974 (Cth) provision relating to the latent cause and the nature of consumer injuries, to have a special timetable providing necessary time for her to obtain all required medical evidence; secondly, an order that the Court pursuant to the Disability Discrimination Act 1982 (Cth) take into account the plaintiff's disability and conditions which cause her to be unable to attend the Court or unable to file documents in time and such delays should not cause prejudice to her, especially in relation to the court proceedings; and thirdly, an order that the defendants produce documents for inspection pursuant to UCPR 21 and 22 for discovery and interrogatories. An order for discovery and inspection of documents and interrogatories is inappropriate at this stage.

The plaintiff is Koidu von Reisner. The first defendant is Dr Oleg…

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 [2013] NSWSC 150
Case: [2013] NSWSC 150
Decision Date: 05 March 2013

CaseChat Overview and Summary

Von Reisner, the plaintiff, brought an action against Chepurin, the defendant, in the Supreme Court of Victoria, seeking damages for injuries sustained in a car accident. The plaintiff was unrepresented and had a history of lengthy adjournments and delays in the proceedings. The plaintiff sought a special timetable to obtain medical evidence, but the defendant argued for dismissal due to the plaintiff's inability to comply with procedural requirements and the repeated failures to comply with directions. The court was required to determine whether the plaintiff's repeated failures to comply with procedural requirements warranted dismissal of the proceeding and whether the plaintiff's unrepresented status and the need for a special timetable should be taken into account.

The court considered the plaintiff's lengthy history of adjournments and delays in the proceedings, as well as the plaintiff's notice since 2010 that the statement of claim was defective. The court also considered the plaintiff's unrepresented status and the need for a special timetable to obtain medical evidence. The court held that the plaintiff's repeated failures to comply with procedural requirements warranted dismissal of the proceeding. The court also held that the plaintiff's unrepresented status and the need for a special timetable did not outweigh the need for the proceedings to be dealt with efficiently and fairly.

The court dismissed the proceeding and denied the plaintiff's application for leave to file an amended statement of claim. The court held that the plaintiff had had ample opportunity to remedy the defects in the statement of claim and that further delay would be unjust. The court also held that the plaintiff's unrepresented status and the need for a special timetable did not justify further delay. The dismissal was with no order as to costs.

Orders