Zelic v Barisic

[2018] NSWSC 1074

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Zelic v Barisic [2018] NSWSC 1074
Hearing dates:	4 July 2018
Date of orders:	04 July 2018
Decision date:	04 July 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) List for directions before Campbell J at 10:00 am on 23 July 2018. (2) If resolved at mediation, the parties have liberty to remove the matter from the list by contacting my Associate by email.
Catchwords:	PRACTICE AND PROCEDURE – seeking order for examination of the plaintiff - ill health and undergoing treatment – whether an order should be made to enable examination of the plaintiff at his bedside - no evidence of diagnosis, prognosis or - insufficient information to make order
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 24.3
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Marijan Zelic (Plaintiff) Ivanka Barisic (Defendant)
Representation:	Counsel: L. Byrne (Plaintiff)   Solicitors: Toltz Lawyers (Plaintiff) Sterling Legal (Defendant)
File Number(s):	2017/63871

EX TEMPORE Judgment

1. HIS HONOUR: This matter came before me this morning to consider prayer three in the cross-claimant’s notice of motion, filed in Court on 2 July 2018. Prayer three seeks an order for examination of the plaintiff, otherwise than at the trial in accordance with Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 24.3.

2. It is common ground that the plaintiff is currently in St George Hospital undergoing treatment for cancer and, although there is no evidence before me as to his prognosis, I have today received that evidence in the form of an affidavit of Constantine Brin, the solicitor for the plaintiff, sworn on 3 July 2018, which annexes a letter from Dr Emma Pinese, who describes herself as a junior medical officer at St George Hospital. Dr Pinese expresses a somewhat opaque opinion that the plaintiff is “presently too unwell to participate in any legal proceedings including, without limitation, for the purpose of giving evidence”. The plaintiff is apparently undergoing treatment in the oncology unit at St George Hospital. There is no evidence of the appropriate diagnosis. Nor is there any evidence of prognosis.

3. The best that can be said, as Mr Byrne for the plaintiff and Mr Zreika for the defendants and cross-claimant have said, is that their understanding on their instructions is that the plaintiff’s demise is not imminent. I have expressed the view that although the matter, prima facie, seems to be one in which it is appropriate to take the evidence of the plaintiff at his hospital bedside, just in case the material before me is presently insufficient to enable that order to be made.

4. I have received some short minutes, which I will mark MFI 1 before me, and I have expressed the view that I think it inappropriate to appoint a Registrar as the examiner. Rather a member of the Bar should be appointed. I have also said that there ought to be medical evidence, and evidence from the hospital indicating the diagnosis, the prognosis and the plaintiff’s fitness to participate in the giving of bedside evidence, including any necessary conditions to be observed as to breaks and the like.

5. Moreover there should be clear evidence that the parties have been able to arrange, with the concurrence of the hospital, appropriate means for the audio-visual recording of the examination. The parties are not in a position to present that evidence today and, in the circumstances, I have expressed a view it is inappropriate for me to make any orders on a contingent basis.

6. Given that legal representatives feel comfortable with a short adjournment and, importantly, as there is to be a mediation fixed for 18 July 2018 I have, in discussion with the parties, decided to list the matter before me on 23 July 2018 at which time I will certainly deal with prayer three if the evidence I require is then available.

7. There is another outstanding matter relating to service of a proposed amended cross-claim, which has been propounded only recently. It seems to me that the amendments do no more than appropriately amplify what was otherwise very taciturn pleading. However, I have not heard an argument from the plaintiff about that.

8. I would ask the parties to give consideration to whether there is any real dispute about the proposed amendment between now and 23 July 2018, so that the matter may be dealt with on that occasion as well.

9. I do not think there is any point, at this stage, re-referring the matter to Justice Davies in the possessions list or to the Registrar until the current motion is finalised.

Orders

1. List for directions before Campbell J at 10:00 am on 23 July 2018.

2. If resolved at mediation, the parties have liberty to remove the matter from the list by contacting my Associate by email.

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Amendments

18 July 2018 - Cover sheet: Representation: Counsel for the Plaintiff added.

Decision last updated: 18 July 2018