Asermely-Rivera v Neffati [2001] NSWSC 262

New South Wales Supreme Court

CITATION : Asermely-Rivera v Neffati [2001] NSWSC 262 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 14856/92 HEARING DATE(S) : 06/04/01 JUDGMENT DATE : 12 April 2001

PARTIES : Karen Asermeley-Rivera (Pl) Moncef Neffati (Def) JUDGMENT OF : Kirby J

COUNSEL : D Wheelahan QC/K Rewell (Pl) B Gross QC/G Bateman (Def) SOLICITORS : Keddies (Pl) Stewart Cuddy & Mockler (Def) CATCHWORDS : APPLICATION - Plaintiff seeking Order under Pt27 r1A Supreme Court Rules - overseas witnesses - alternative of video link LEGISLATION CITED : Supreme Court Rules - Pt27 r1A CASES CITED : Poschung v Jones (unreported, Levine J, 25.10.96) Asermely-Rivera v Neffati (unreported, Dowd J, 9.11.2000) DECISION : Ref para 24

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Thursday 12 April 2001

14856/92 - KAREN ASERMELEY-RIVERA -v- MONCEF NEFFATI

JUDGMENT

1 HIS HONOUR: Dr Karen Fattouh (formerly Dr Karen Asermely-Rivera) (the plaintiff) makes application under Pt27 r1A of the Supreme Court Rules to take evidence in the United States of America. An earlier application came before Dowd J on 6 November 2000. His Honour declined to make such an order, at least until the plaintiff had given evidence and been cross examined.

Background 2 Dr Fattouh was born in the United States on 14 May 1962. She remains a citizen of that country. On 23 May 1991 she was awarded a doctorate in Pharmacology by the Temple University Medical School, Philadelphia, Pennsylvania. On 28 June 1991, Dr Fattouh secured a post-doctoral fellowship with the Baylor College of Medicine, Houston, Texas. In July 1991, she travelled to Australia with her husband (Dr Jose Rivera) to attend a conference of the International Society of Neurochemistry. The conference was held in Sydney. Also present at the conference was Professor John O'Neill, Professor Emeritus of the Temple University Medical School. Professor O'Neil had supervised Dr Fattouh's doctoral thesis. 3 On 21 July 1991, Dr Fattouh and her husband caught a taxi from the city to the International Airport. In the course of the journey another taxi collided with the rear of the vehicle in which she was a passenger. Dr Fattouh says that she was thrown around inside the taxi, and experienced pain. She abandoned her flight to the USA that day. Instead, she and her husband went to the Prince of Wales Hospital, where she received treatment. She returned home the following day. 4 Upon her return to the United States, Dr Fattouh sought treatment. She felt pain in her neck and became severely depressed. According to the plaintiff, her marriage came under strain, and, in November 1991, she separated from her husband. Her husband filed a partition for divorce in February 1992. The Final Decree was made in September 1992. 5 Between 1991 and May 1995, Dr Fattouh was admitted from time to time to various hospitals. She underwent treatment, both orthopaedic and psychiatric. She attempted work, although as a secretary rather than as an academic. In May 1995, Dr Fattouh was appointed a post doctoral fellow at the National Academy of Science at the U.S. Army Medical Research Institute, Maryland. She states that she experienced considerable difficulty performing her duties. She was limited in the hours that she could work, completing approximately forty hours each week. Ordinarily, she would have expected to have worked sixty hours per week. In April 1999, her employment was terminated. Dr Fattouh believes that the termination was unjustified (since she had disclosed her disabilities before she began). She says that such incapacity as she exhibited was the consequence of the injuries sustained on 21 July 1991.