KARPATI v SPIRA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA 15 December 1995 [1995] NSWCA 230 Clarke JA. This is a notice of motion in which various relief is sought. The primary relief is that the court order the taking of the evidence of the claimant on commission. This is a very unusual application, but the circumstances themselves are both unusual and unfortunate. The claimant, who is a man relatively advanced in years, claimed that he had suffered significant injuries following an operation and that there had been a failure on the part of the treating doctors to warn him of the risk that he might sustain those after-effects. When the matter came on for trial he was in an extremely disadvantaged condition, being unable to communicate effectively either by speech or by writing. The procedure adopted at the trial, in what was a desperate attempt to lead the claimant's evidence, is described in the trial judge's judgment in which it is also said that an assessment of demeanour of the claimant could not be made because of his disabled condition. The claimant has appealed from the decision which went against him and the appeal is substantially based upon an application to lead evidence before this court. In the notice of appeal the evidence is described as fresh evidence, but I have deliberately discarded the adjective because my impression is that the claimant is seeking to appeal to the wider discretion of this court. Whether or notthe evidence is truly fresh evidence is something I need not decide at the present moment. In any event, that evidence is to be found in an affidavit sworn by the claimant who, the lay and medical evidence would suggest, has recovered his powers of speech in a significant manner, such that at least in the opinion of one lay witness a court may be able to assess his demeanour. What I have stated so far, I think, indicates how unusual this case is, but at the end of the day the Court of Appeal will have to endeavour to do justice while applying the rules by which cases are fought and appealed in this State. The claimant has filed an affidavit. It is the material in that document which would be relied upon at the appeal. In essence, it constitutes a series of denials of evidence given in the opponent's case at the trial, which it is claimed the claimant was unable adequately to answer. During the course of the hearing of the motion I enquired of counsel for the opponent whether, assuming the opponents had satisfied themselves that the claimant was a competent witness and assuming that leave was granted to the claimant to lead fresh evidence, the opponents would consent to the claimant relying upon the affidavit I have mentioned. I also enquired whether, on the same assumptions, there was any desire to cross-examine the claimant. I was informed by counsel for the opponents that in the particularly disadvantaged state of the claimant they would not object to the affidavit being relied on and would not seek to cross-examine. 2 UNREPORTED JUDGMENTS It is in those circumstances I return to consider that part of the motion which seeks a commission hearing of the claimant's evidence which it is proposed should be recorded on videotape. In the circumstance that the material which the claimant wishes to convey to the court is contained in the affidavit I have mentioned and that the commission hearing would put the parties and particularly the opponents to a great deal of extra expense, it seems to me difficult to justify making the order sought for use of the videotaped evidence at the hearing of the appeal. When I put this to Mr Hall, who appears for the claimant, he conceded, as I think either his evidence or his submissions conceded, that a substantial reason for seeking the order was the securing of a permanent record of evidence given and tested in cross-examination. That particular purpose may well not fall within the ambit of the principles that I should consider in determining whether to grant this application. If, however, there had been evidence of an imminent deterioration in the claimant's powers of communication, such that what might occur now would not be occurring in a relatively short space of time, I may well, despite the unusual nature of the application, have acceded to it. The evidence does not, however, suggest any imminent deterioration. It goes no further than indicating that at some time in the future there will be a general deterioration. In these circumstances, I do not think the court can justify putting the parties to the expense of the commission hearing and I decline to make the orders sought. There remains, however, the question of expedition which is also raised in the notice of motion. Mr Hall then referred me to another application in which the claimant sought an order that consideration of the motion for expedition be deferred until the commission has been conducted. Judges of the court have said in recent months that it will be necessary to take a much more restrictive approach to these applications in the light of the very great and unacceptable delay in the hearing of appeals. I am particularly mindful of that need. Nonetheless, this is a most unusual case in which a seriously disadvantaged person endeavoured to present a case in circumstances which made it very difficult for the trial judge to reach his ultimate conclusion. It may be that, if the claimant had been able to communicate better, the judge would have been better able to assess his evidence and that he then may have had a greater chance of securing a verdict. I do not know, but it seems to me in the circumstances that where he says that now he is in a better position to communicate, the court should entertain his appeal as soon as it can in order todetermine whether, in accordance with the principles under which this court operates, he should be given another chance to secure a verdict in a trial. In saying that, I make no prediction as to what the court will do for I have not had the time to consider, in any depth, the very many problems that surround an appeal of this unusual nature. All I wish to convey is that in these very special circumstances I have reached the conclusion that the appeal should be heard as an expedited one and that if possible it should be listed for hearing next April. The formal order I make is that the notice of motion, except order 6, is dismissed, that the hearing of the appeal is expedited, that the parties have leave to approach the Registrar to secure a hearing date in April, that leave generally be reserved to either party to apply to the court on seven days" notice in the event of any change in the circumstances of the claimant or in any other exigency. (Counsel addressed on the question of costs.) URJ KARPATI v SPIRA (Clarke JA) 3 Costs will be reserved for determination by the court which hears the appeal. Orders accordingly.