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District Court 16 October 2020

Taouk v Bradstreet

[2020] NSWDC 663

Other
CIVIL LITIGATION WHAT CERTIFICATE OUGHT TO HAVE SAID

Citation: Taouk v Bradstreet [2020] NSWDC 663
Court: District Court of New South Wales
Date: 16 October 2020
Judge: Neilson DCJ

Background

The plaintiff commenced proceedings in 2019 against his former solicitor, alleging negligent legal advice led him to settle a personal injury and workers compensation claim in 2013 for far less than its true value. The net payment he received after deductions was approximately $59,176 from a $250,000 settlement. The statement of claim was filed nearly six years after the relevant advice was given.

By mid-2020, the plaintiff's original solicitors had ceased to act, leaving him unrepresented. He struggled to retain new representation, and a scheduled three-day hearing was vacated. The defendant filed a motion seeking dismissal of the proceedings for want of prosecution.

When the matter came before the court on 24 and 28 August 2020, the plaintiff was absent and relied on medical certificates from his general practitioner. Those certificates stated only that the plaintiff had "a medical condition" and was unfit for work. The presiding judge was not satisfied with the certificates and dismissed the proceedings for want of prosecution.

  • Whether the dismissal for want of prosecution, made in the plaintiff's absence, should be set aside under UCPR r 36.16(2)(b)
  • Whether the medical certificates provided to the court at the time of dismissal were adequate to explain the plaintiff's absence
  • What a medical certificate tendered to justify a party's absence from court proceedings ought to contain

Decision

Neilson DCJ found the medical certificates provided to the court in August 2020 were plainly inadequate. A certificate stating only that a person had "a medical condition" and was unfit for work provided no useful information. The judge observed that the court's concern is not whether a person is fit to work, but whether they are fit to appear before the court and give evidence. A proper certificate should provide a diagnosis and, preferably, a prognosis.

By the time the matter came before Neilson DCJ on the plaintiff's application to set aside the dismissal, substantially more medical evidence was available. That evidence included a CT scan report from 28 August 2020 raising a strong suspicion of a perforated appendix, hospital admission records from 31 August 2020, and a discharge summary indicating the plaintiff had been hospitalised for three days and required further surgery. Taken together, this evidence demonstrated that the plaintiff had been suffering from a subacute ruptured appendix at the very time the proceedings were dismissed.

Neilson DCJ concluded that, had this fuller medical picture been before the court on 28 August 2020, the proceedings would not have been dismissed. The plaintiff's hospitalisation and serious abdominal condition adequately explained his absence from court. Accordingly, the dismissal order was set aside under UCPR r 36.16(2)(b), and the matter was referred to the Judicial Registrar to fix a new three-day hearing date.

Orders Made

  • The order dismissing the proceedings, made by Balla ADCJ on 28 August 2020, was set aside pursuant to UCPR r 36.16(2)(b)
  • Costs of 24 August 2020, 28 August 2020, and the defendant's notice of motion filed 1 August 2020 were ordered to be the defendant's costs in the cause
  • The matter was returned to the Judicial Registrar to fix a three-day hearing

Key Takeaways

  • A medical certificate tendered to justify a party's absence from court must identify a diagnosis (and preferably a prognosis); a certificate stating only that a person has "a medical condition" and is unfit for work is insufficient for that purpose.
  • The District Court confirmed that the relevant question for a court assessing a medical certificate is not whether the person is fit to work, but whether they are fit to appear before the court and give evidence.
  • Under UCPR r 36.16(2)(b), a dismissal for want of prosecution made in a party's absence can be set aside where subsequent evidence establishes that the party was in fact medically unfit to attend at the time of dismissal.
  • Where fuller medical evidence, not available at the time of the original hearing, demonstrates serious illness that would have satisfied the court, that evidence can support an application to restore proceedings.
  • Costs reserved from both directions hearings and the defendant's strike-out motion were made costs in the cause, reflecting that the inadequacy of the medical certificates contributed to the procedural disruption.

Legislation and Cases Referenced

Legislation:
- Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b)

Cases cited: No cases were cited in the judgment.