New South Wales Supreme Court CITATION : Sykes v Richardson (No 2) [2007] NSWSC 454 HEARING DATE(S) : 01/05/07; 02/05/07; 03/05/07; 04/05/07 JUDGMENT DATE : 4 May 2007 JURISDICTION : Common Law Division JUDGMENT OF : Hidden J at 1 DECISION : Application granted. CATCHWORDS : PRACTICE & PROCEDURE: - Application to set aside ex parte orders for examination of witness under Evidence on Commission Act (NSW) - discretion conferred by s33 - serious illness of witness - whether examination of witness orally or in writing practicable LEGISLATION CITED : Evidence on Commission Act CASES CITED : British American Tobacco Aust Services Ltd v Eubanks (2004) 60 NSWLR 483 Sykes v Richardson [2007] NSWSC 418 PARTIES : Kieran Sykes (applicant) Julius N Richardson (respondent/plaintiff) FILE NUMBER(S) : SC 2007/11499 COUNSEL : M J Leeming SC with K M Richardson (applicant) Dr A S Bell SC with K C Morgan (respondent/plaintiff) Atanaskovic Hartnell (applicant) SOLICITORS : Ebsworth & Ebsworth Lawyers (respondent/plaintiff) S. Lawrance (J P Morgan) (intervening) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Friday 4 May 2007 2007/11499 Kieran Sykes v Julius N Richardson (No 2) JUDGMENT 1 HIS HONOUR: The background to this judgment is to be found in a judgment I published on 1 May 2007 dealing with a question of law: see [2007] NSWSC 418. 2 The applicant also asks that the order of Patten AJ and the subpoena to her be set aside in the exercise of my discretion, on the basis that her examination would be oppressive. This arises from the parlous state of her health. As to that, I have unchallenged evidence in affidavits of her general practitioner, Dr Daniel Hameiri, and a surgeon, Mr Maxwell Coleman. By the agreement of the parties, up-to-date information from both those doctors has been supplied informally in response to questions put to them by the applicant's solicitor. 3 There is no need to summarise this evidence in any detail, as its effect is clear. In 2001 the applicant was diagnosed with breast cancer and underwent a partial mastectomy, with consequent radiotherapy and chemotherapy. Unfortunately, in January of this year she was found to have developed extensive secondary cancer affecting her spine, her breastbone and her pelvis. She has recently undergone a course of radiotherapy and is currently receiving chemotherapy. 4 When the matter was last before me two days ago, the position was this. As a result of both the cancer and the treatment, she cannot sit for any length of time without significant pain, she is exhausted and, in addition, she suffers pain from burnt skin resulting from the radiotherapy. Her concentration is impaired. Her tolerance for stress is greatly reduced by the effects of her treatment, and Dr Hameiri described her as "particularly fragile at the moment". The examination would significantly impede the effectiveness of her treatment. 5 Commendably, counsel for the respondent put forward a number of measures which, it was hoped, would alleviate the impact of an examination upon her health. It was suggested that it might take place at an informal venue suitable for her, that it might be limited in time with regular breaks, that she be permitted to alter her posture freely, and that she be permitted to have a doctor in attendance. It was also suggested that the examination might proceed more quickly if leading questions in chief were allowed. 6 Asked whether the availability of a couch or sofa or some other "convenient chair" and her freedom to sit, stand or move around as she saw fit might make her examination possible, Dr Hameiri responded that it would not. He considered that an examination under those conditions would still have a deleterious effect upon her treatment. Asked how long her present symptoms and the effects of her treatment would persist, he expressed the view that it would be for at least six weeks but was uncertain even of that time frame. A recent communication from Mr Coleman discloses that she may have a collapsed vertebra following her radiotherapy and that she is now taking panadeine forte, which makes her drowsy. He added that, if the collapse of a vertebra is confirmed by an MRI scan, he did not think that she would be fit to answer questions for several months, if at all. 7 In effect, I am asked to re-exercise the discretion which Patten AJ exercised when he made the ex parte orders. Section 33(1) of the Evidence on Commission Act confers a wide discretion as to whether an examination should be directed and, if so, what provision is appropriate to achieve it. In British American Tobacco Aust Services Ltd v Eubanks (2004) 60 NSWLR 483 at [88] – [89], Spigelman CJ questioned whether the notion of oppression associated with subpoenas needed to be introduced into the application of the Act, noting the discretion conferred by s33. He added, however, that this Court should not reject a request under s32 of the Act "unless it is not able to mould an order which the Court believes to be an 'appropriate' one for the purpose of giving effect to the request". The request in the present case describes the applicant as an important witness but it is not put by counsel for the respondent that her evidence is crucial. 8 In the light of the medical evidence, I am satisfied that an oral examination of the applicant under any circumstances is not possible in the time frame set by the course of the Wisconsin proceedings. I expressed that view to counsel for the parties when the matter was last before me. However, s33(3)(a) of the Act provides for the examination of witnesses orally or in writing, and I then heard argument about the possibility of written examination of the applicant. Counsel for the respondent put forward a reasonably detailed proposal for that course, and it was agreed that further opinions from her general practitioner and her surgeon should be sought. In addition, it was agreed that the defendants to the Wisconsin proceedings should be heard on the matter, and I had the benefit of submissions from their Sydney solicitor, Mr Lawrance. 9 Yesterday, again in response to questions put by the applicant's solicitor, the two doctors furnished their opinions. Dr Hameiri reviewed the proposal for written evidence, but expressed the view that the combination of the applicant's pain, stress, and the effects of her strong medication rendered her "totally unsuitable for giving evidence in any mode for the foreseeable future". Mr Coleman reported his suspicion that her vertebral structures are collapsing, requiring surgical intervention and further radiotherapy. He proposed to have her admitted to hospital as soon as possible. He added that, if his suspicion proved to be correct, she would be "entirely out of action and not suitable to give evidence in any form for quite some time". 10 For more abundant caution, Mr Coleman also said that he would be better placed to explain the applicant's condition on Monday next, after he received the results of the MRI to which I have referred. However, counsel for the respondent do not ask me to wait until then and accept that I should give a decision on the evidence which I have. As I have said, any examination of the applicant must take place within a limited period of time. On the evidence, it is clear that she is incapable of being examined, orally or in writing, during that period. 11 Accordingly, I make orders in terms of paragraphs three and four of the notice of motion, that is, that the orders of Patten AJ of 29 March 2007 and the subpoena to the applicant of 13 April 2007 be set aside. If necessary, I shall hear the parties on costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.