Zelic v Barisic (No 2)

I have, for want of a better expression, been case-managing these proceedings in the Possessions List since 4 July 2018. Since then, the matter has been before me on another four occasions. The proceedings relate to an intra-familial dispute about possession of premises in Sydney owned by the plaintiff and occupied by the first and second defendants. The plaintiff is the father of the first defendant, his daughter, and she is married to the second defendant who, accordingly, is the son-in-law of the plaintiff.

The defendants have been in occupation of the premises since the early 1990’s, if I recall the evidence correctly. The first defendant, the plaintiff's daughter, has brought a cross-claim in the proceedings seeking equitable relief. She claims an equitable interest in the property on the basis of either an agreement which, although not in writing, has been at least partly performed, or, in the alternative, arising out of a proprietary estoppel.

There is a motion which is to be heard on 3 September 2018 seeking to amend the statement of cross-claim to amplify the averments of material fact and to seek a declaration as to the existence of a constructive trust. That application is to be hotly contested.

It has transpired during the time that I have been dealing with the matter that the plaintiff unfortunately has fallen seriously ill. He has, according to evidence I received on 31 July 2018 (Ex VDA) cancer mainly of the tongue and throat, and there is suspected metastatic cancer affecting the left shoulder. He has had other complications related to his treatment and his immobility, I infer. Because of him in hospital and due to the treatment he has been receiving he has also developed depression.

A Dr Khalil, a medical oncology Registrar at St George Hospital, provided a report which is part of Ex VDA. At that time, he said that the plaintiff had been discharged from St George Hospital on 24 July 2018. It was apparent, however, that he had been discharged to a nursing home, which I understand to be the facility operated by the Sisters of our Lady of China at Rocky Point Road, Kogarah. However, Dr Khalil expressed these opinions:

That was important because the defendants, when they learned of the plaintiff's condition, filed an urgent motion, inter alia, for orders under r 24.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for the examination of the plaintiff otherwise than at the trial. I have commented before in these proceedings that it is unusual for an opposing party to apply for such an order. Normally, in these type of circumstances, the lawyers for the party affected would be anxious that his evidence be preserved and would seek that order themselves. However, given that affidavit evidence had already been exchanged in relation to the cross-claim, perhaps the view was formed that it was unnecessary for the plaintiff's legal advisers to make the application.

It seems to me there is nothing to preclude an opposing party from making an application for the purpose of having the opportunity of cross-examining a deponent and preserving his evidence for the trial, which, unfortunately, in this case, may yet be some months off. Indeed, according to the timetable agreed between the parties for the further management of the case recorded in orders I made on 31 July 2018, the matter is unlikely to be ready for trial until sometime in the first half of 2019.

In any event, it became unnecessary for me to decide whether to make an order under UCPR 24.3 because the parties agreed between themselves to the order which I entered by consent on 31 July 2018 in the following terms:

The matter next came before me on 9 August 2018. It was contemplated at that time that it would be listed for further directions today, 23 August 2018. At the directions hearing on 9 August 2018, I was informed, and noted, that the parties had reached agreement: upon the identity of the examiner, Mr Michael Meek of Senior Counsel; the time at which the examination is to occur, which is 19 - 21 September 2018; and the conditions to be observed for the conduct of the examination having regard to the plaintiff's medical condition. I also recorded the following:

Now, there has been no agreement and it must be said that no party has complied completely with order 5.

Having said that, the defendants/cross-claimants' solicitor, Mr Zreika, filed an affidavit sworn on 16 August 2018, and a second affidavit sworn on 17 August 2018, together with an affidavit of his employed solicitor, Ms Lamia Daher, also sworn 16 August 2018, setting out the steps that they had taken in attempting to arrange to have the examination under UCPR 24.3 carried out at the facility where the plaintiff seems to mainly reside.

Mr Green, solicitor for the plaintiff, filed an affidavit of 20 August 2018 in relation to the proposed amendment, and filed an affidavit on 22 August 2018 at 7.36 pm electronically in purported compliance with order 5.

I must say that I was disappointed to see that although the defendants' solicitors had made significant efforts to try and arrange to have the examination carried out at the facility where, on the evidence, the plaintiff has mostly resided since his discharge from hospital, there appeared to have been no conference as I contemplated by my orders between the parties with a view to arriving at an agreed position as to where the examination would take place.

I acknowledge the efforts the parties did make in relation to agreeing upon the other matters.

Apparently, an issue has been that over about the last fortnight the plaintiff had spent three days in hospital but otherwise he had been at the facility at Rocky Point Road.

I was disappointed to read that nowhere does it appear that Mr Green had picked up the telephone and dialled his opposite number in an attempt to reach an agreement about these matters. Indeed, the correspondence that he has attached to his affidavit does not seem to accord with the directions I made. On 1 August 2018, he asked for further and better particulars regarding the specific arrangements that could be made at the facility for the evidence to be taken, and on 9 August 2018 he wrote asking for confirmation that the facility would authorise "your clients' use of their premises", and again asking for further and better particulars about the arrangements made.

It also said that I did not make orders relating to the matters about which the plaintiff's solicitors were seeking particulars. However, I have read out the orders I did make which certainly contemplated that the parties would agree on the matter given that the plaintiff had consented to the order for examination and had agreed on other matters.

From reading the affidavit of the defendants' solicitors, I have some unease about what had occurred. The bottom line is that as at 16 August 2018, the facility manager wrote to the defendants' solicitors saying:

What is a little concerning about that is that initially when telephoned by the defendants' solicitors, according to Ms Daher, on 1 August 2018, Ms Chow, the manager, informed the solicitor that because of medical treatment the plaintiff would not be able to give evidence before 15 August. When asked whether there was a room that could be booked to accommodate an examination, Ms Chow said "Yes". When asked about a private room to accommodate approximately 10 people, Ms Chow said it was possible. And when asked about her requirements, Ms Chow said "send a letter and I will arrange it".

Other arrangements were made by Ms Daher in relation to other aspects.

Ms Daher left a message for Ms Chow on 7 August, and Ms Chow called later that same day informing Ms Daher that the plaintiff had been sent back to hospital. She explained it was for health reasons and said, "I haven't spoken to his son yet, and I don't know if he's coming back". She did say that the board would need to make a decision about whether the examination could take place at the hospital. Ms Daher rang again on 9 August and asked about whether final approval had been forthcoming. Ms Chow said "[w]e can't do it as we don't have the facility". There was some disagreement between Ms Chow and Ms Daher about what had been said in terms of the number of people who could be accommodated, but when pressed Ms Chow said that she wasn't allowed to agree to the proposal.

Mr Zreika was present when that conversation was taking place and took over the conversation. After introducing himself, Ms Chow asked whether he was "working for the son or daughter". When he responded "the daughter and her husband" Ms Chow said "I can only speak with the son". When Mr Zreika sought to explore why there had been a change in attitude, Ms Chow's response was, "[m]y duty is privacy. I provide confidentiality only. I'm doing my job. I don't want trouble." The conversation went on for some considerable time.

A further phone call on 15 August confirmed that the facility would not permit the examination.

I must say there may be many good reasons why a facility would not be able to accommodate an examination of the type contemplated by the consent order. On the other hand, one cannot help being sceptical about the matter. Bedside examinations are a common enough feature of the conduct of litigation in cases where one of the parties, or even a witness to proceedings, is in poor health or indeed terminally ill. And, generally speaking, with sensitivity and some effort, arrangements suitable to the parties, the facility, and the other patients or residents of the facility can be made.

When the matter came before me today, the defendants moved for an order under s 68 of the Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”) that I require Ms Chow to come to give evidence to explain the change in attitude but for reasons I then expressed informally I thought that inappropriate. The facility is not a party to the proceedings and I would not make an order either requiring her to attend and provide an explanation, or contemplate any sort of order directing the facility to permit the examination unless it was a party to some process regularly brought and served naming the facility as a party to the proceedings. Naturally, the facility would need adequate notice of any hearing in relation to such process.

I frankly formed the view that the defendants have done all they reasonably could to implement the agreement reached between the parties. And I regret to say I am not satisfied that the plaintiff's solicitor has.

I stood the matter down from an earlier hearing today to allow Mr Young of counsel, who appears for the plaintiff today, as he has on other occasions, to obtain instructions about the plaintiff's position in relation to a particular matter he raised with me concerning an urgent application for the lifting of the caveat that the defendants have placed on the title to the property to protect their position.

When the matter resumed at 2:00 pm, Mr Young informed me he was no longer instructed to ventilate that matter with me but that some urgent application may be made next week in that regard. He did have instructions, however, to put submissions to me about the venue for the examination which I summarise as follows.

Arrangements as to the examination were not a matter which the plaintiff, or the plaintiff's lawyers, should have to concern themselves with. As the application for the examination was the defendants' application, it should be left to the defendants to make the arrangements.

He also pointed out that the approach to the facility was informal and that the facility is apparently run by a registered charity, the Trustees of the Sisters of our Lady of China, and that its constitution provides for its administration by a council consisting of office bearers. The argument was put that an informal letter or approach to the manager of the facility was irregular, and that in the absence of a direct approach to the governing body, the defendant had not done all it could do to secure arrangements for the examination.

With respect, those submissions that Mr Young was instructed to make, presumably by the solicitor for the plaintiff, allowing for the plaintiff's medical condition, completely overlook and ignore the orders that I made that I have referred to above. I accept that Mr Green was not in court when those orders were made but I have no doubt that Mr Young relayed them to him faithfully.

It is not open to the plaintiff's solicitor to say that it is not a matter with which he should be concerned; it is the defendants' problem. That flies in the face of the directions I have made as I have set out above. I have required the parties to confer in an effort to reach an agreement about these matters, and although agreement has been reached about the other matters, no agreement has been reached about the location at which the examination can take place. Nor do I regard requesting particulars of what the defendants have done or what arrangements the defendants have made as complying with my direction to confer to arrive at a common position.

Mr Young did submit as a "fall-back position" that perhaps the parties could discuss agreeing upon an alternative. That is what I directed the parties to do many weeks ago. Mr Young did not have any instructions which would enable him to suggest an alternative today.

It stands to reason that the plaintiff's lawyers would be in a much better position to facilitate the examination taking place at a location convenient to their client, and having regard to his undoubted medical condition. This is simple common sense. The defendants, notwithstanding that one of them is the plaintiff's daughter, have no right or authority to deal with his treatment providers. And it seems to me that by non-compliance with my directions and merely demanding details of arrangements the defendants' solicitors have made, the plaintiff's solicitor has not complied with my orders.

Under s 56 of the Civil Procedure Act, the parties and their legal representatives have obligations. The obligations include those imposed by subsection (3) which is in the following terms:

Subsection (4) is in the following terms:

I am not really satisfied that the son, who is not his client I suppose, has not interfered in an unhelpful way. But there is insufficient evidence for me to draw that inference and I won't draw it. I can go off the bench for 10 minutes and you can ask him if he would like to have that opportunity. If he would like that opportunity, then I won't make an order requiring him to come here next week because I will take it that in the spirit of the Civil Procedure Act, as befits an officer of this Court, he will comply with my directions.