Supreme Court New South Wales Medium Neutral Citation: Vicky Romano v Anthony Romano; Filomina Kyriacou v Anthony Romano [2015] NSWSC 1571 Hearing dates: 21 October 2015 Date of orders: 21 October 2015 Decision date: 21 October 2015 Jurisdiction: Equity Before: Kunc J Decision: Hearing vacated Catchwords: PRACTICE AND PROCEDURE – Hearing vacated due to illness of plaintiff – No issue of principle Category: Procedural and other rulings Parties: 2014/240680 Vicky Romano (Plaintiff) Anthony Romano as Executor of the estate of Arturo Romano (Defendant) 2014/243729 Filomina Kyriacou (Plaintiff) Anthony Romano (Defendant) Representation: Counsel: 2014/240680 C. Wilson (Plaintiff) S. Balafoutis and F. St John (Defendant) 2014/243729 I.R. Coleman SC and A. Petrie (Plaintiff) S. Balafoutis and F. St John (Defendant) Solicitors: 2014/240680 Alexander Lawyers (Plaintiff) Kydon Segal Lawyers (Defendant) 2014/243729 Nelson McKinnon Lawyers (Plaintiff) Kydon Segal Lawyers (Defendant) File Number(s): 2014/24068 and 2014/243729 Publication restriction: No EX TEMPORE Judgment 1. On 27 February 2015 Hallen J fixed these two sets of related family provision proceedings for hearing to commence today for three days. The plaintiff in one of them, Ms Kyriacou, applies by notice of motion filed yesterday for today's hearing to be vacated and for the proceedings to be adjourned until February 2016. All other parties oppose the application. I will first set out the procedural history to the extent it is relevant and then come to the evidence on which Ms Kyriacou relies in support of her application. 2. The position between the parties is that on 1 September 2015 Ms Kyriacou's solicitors wrote to the solicitors for the plaintiff in the other proceedings, Ms Vicky Romano, indicating that Ms Kyriacou had been diagnosed with a "form of blood cancer" and it was expected that Ms Kyriacou would be making an application to vacate the hearing date. That was the first time, at least as far as Ms Romano's solicitors were concerned, that they had heard either of Ms Kyriacou's illness or her intention to seek to vacate the hearing date. 3. On 22 September 2015 the proceedings were before Hallen J for directions. On that occasion Ms Kyriacou's counsel informed his Honour that it was expected that Ms Kyriacou would make an application to vacate the hearing date. His Honour stood the matter over to 8 October 2015 to provide time for Ms Kyriacou to make her application. 4. On 8 October 2015 the proceedings were again before Hallen J. No application was made on behalf of Ms Kyriacou and his Honour made directions with regard to preparing submissions and the court book. 5. On 19 October 2015 the solicitors for Ms Romano were served with a medical report in relation to Ms Kyriacou prepared by Associate Professor Ramakrishna, a physician and haematologist. On 20 October 2015, at approximately 9.29am, junior counsel for Ms Kyriacou sent an email to the associate to Hallen J, copied to the parties, that Ms Kyriacou would be bringing an adjournment application and that her solicitors were "in the process of preparing the relevant notice of motion and supporting affidavit evidence." That was, of course, the morning before the day on which the hearing was to commence. The notice of motion which is now before me, and Ms Kyriacou's affidavit in support, were filed and served later in the day. 6. Insofar as Ms Kyriacou's evidence is concerned, that was comprised by her affidavit of 20 October 2015, supplemented by her evidence in the witness box. I should explain that after hearing the parties in relation to Ms Kyriacou's application, I was informed in response to an enquiry that I made of Ms Kyriacou's counsel that she was nearby and, if necessary, could attend the Court personally in order to supplement the evidence as to her condition. Her affidavit evidence, while clearly indicating that she is now suffering from a form of cancer, did not make clear to the Court the extent to which she was in fact unable to give her evidence. 7. Counsel for the estate informed the Court that if the hearing proceeded, he expected his cross‑examination of Ms Kyriacou would take approximately two hours. I adjourned the hearing of Ms Kyriacou's motion to enable her to attend the Court. I will describe my observations and findings arising from her attendance below. 8. The effect of Ms Kyriacou's affidavit evidence is as follows. She initially had some tests in June of this year which indicated that she had some form of blood disease. If I may without any disrespect summarise, the effect of her evidence was that she went into denial about the diagnosis and did nothing further for some time. This may explain why her application has been brought so late. It would appear from Associate Professor Ramakrishna's report that in July and August 2015 Ms Kyriacou had further tests which gave rise to this diagnosis: (1) Myelodysplasia/myeloproliferative disorder (bone marrow biopsy August 2015) with Philadelphia chromosome negative (contributing to anaemia and left shift myelopoiesis and circulating blasts). (2) Severe anxiety disorder. (3) Asthma. 1. The report goes on to record investigations which she had earlier this month which yielded a definitive diagnosis. The result of those investigations is summarised by Professor Ramakrishna: Regarding Filomina's current symptoms, it includes fatigue and lethargy and upper abdominal discomfort associated with her splenomegaly. Bone pain and erythromyalgia are consistent with her bone marrow cancer. Night sweats and fever can also be associated, but at present stable. Impact on her day-to-day living is primarily related to her bone marrow cancer contributing to lethargy, bone pain, fatigue and upper abdominal aches and pains due o her hepatosplenomegaly (enlarged liver and spleen). Hence she has been commenced on oral chemotherapy agent in the hope of improving her liver and spleen size, as well as bone marrow disease activity. She would require bone marrow transplantation to have any chance of a cure of this condition. Chemotherapy will only control the disease in the short-term. As far as her prognosis is concerned, she has an uncommon bone marrow disease, which certainly has a predisposition to acute myeloid leukaemia. At her age group, chemotherapy is highly unlikely to achieve any cure. Bone marrow transplantation is her only option, but at present there are no suitable donors found as yet. This will be explored in the short-term. This type of bone marrow cancer tends to gradually worsen. It is unlikely that without therapy she would survive the next year, or two and with therapy, her overall survival rate is still relatively poor. Other chemotherapy options of Azacitidine will be explored, but certainly has significant side effects, as it is an injectable type of chemotherapy. Unfortunately, Mrs Kyriacou has a bone marrow cancer that does not have a very good prognosis and without bone marrow transplantation is likely to die with the disease in the next few years. 1. Ms Kyriacou met with Associate Professor Ramakrishna last Thursday, 15 October 2015. It appears from both his report and her evidence before me that on that occasion he informed her that she had a bone marrow cancer with a very poor prognosis, even if it was treated. Even with treatment the evidence suggests that her life will be considerably shortened as a result of the disease with which she has been diagnosed. 2. Last Saturday, 17 October 2015, Ms Kyriacou commenced oral chemotherapy in the form of a pill by mouth to treat her cancer, which she takes twice a day, and will continue for a fortnight's cycle until Saturday, 31 October 2015. Her evidence is that she immediately began to experience side effects, including panic attacks and lack of sleep. 3. It would also appear that, since her initial diagnosis in June 2015, she has frequently suffered from fatigue and lethargy, sharp pains throughout both of her legs, numbness in her third and fourth toes, bone pain, difficulty lifting heavy objects, difficulty walking up and down stairs, "sharp pain in both of my hips", abdominal discomfort and tenderness, night sweats and fever. 4. When Ms Kyriacou gave evidence before me this morning it was clear that she was physically quite unwell. None of the counsel appearing today suggested in submissions after she had given her evidence that I should find that she was feigning. In my respectful view they were right not to do so. She presented before me as a woman in significant physical distress and perhaps, today, even greater mental distress. It was clear to me, as might be expected, that the definitive news of such a devastating diagnosis has had a significant effect on her mentally, quite apart from the physical symptoms which she appeared to be exhibiting. She told me that all she wanted to do was to go home and lie on her bed. After she had given her evidence she left the courtroom, but I was able to observe her being physically sick outside the precincts of the Court. 5. I am satisfied that she is not able today to give proper instructions or to undergo a cross-examination presently estimated at two hours in length. I will therefore grant the application to vacate the hearing. However, the question remains as to what is to be done. There are several other factors which need to be taken into account. 6. First, while Ms Kyriacou's notice of motion prays for these proceedings to be adjourned to February of next year, there is no direct evidence before the Court as to what her condition might be in February 2016. I infer from the evidence which I have seen that it is unlikely to be any better. 7. Second, I have also been informed, and for the purposes of preparation have read an affidavit to this effect, that another witness in the proceedings is suffering from significant health difficulties in the form of epilepsy and related problems. The affidavit which I read in preparation for this morning, although not formally read before me for the purposes of the application, suggested (and I would infer as a matter of ordinary human experience in any event) that the stress of a court hearing was likely to exacerbate the problems from which that particular witness suffers. 8. Third, all the parties have a clear interest in the matter being heard as soon as possible. But for today's developments, the matter was ready to proceed subject to one matter to which I now turn. 9. The recent events in relation to Ms Kyriacou's health may have an impact upon the way in which her case is put. Her counsel submitted, and I accept, that it would be in her interests to have an opportunity to obtain further evidence as to her prognosis and her likely needs. Those would obviously be important matters for the Court to take into account if it was satisfied that some order for further provision should be made in her favour. That bespeaks the desirability of Ms Kyriacou being given an opportunity to prepare such evidence and the other parties being given an opportunity to respond. 10. As it happens, counsel and the Court are available for two days in November. In the first instance I will fix the hearing before me for 12 and 13 November, but who the ultimate trial judge will be will be a matter for the Court to determine. The parties will be notified in due course if I am not to be the trial judge. 11. Before making any orders the only other matter which I should record is that the Court expects the parties to co-operate (as I am sure they no doubt will) to the extent that any special arrangements may be needed to ensure that both Ms Kyriacou and the other witness are able to give their evidence as comfortably as possible. It would be inappropriate to speculate at this point as to what those arrangements might be, but the Court will be as flexible as it can as to the timing and location of the giving of their evidence to the extent the parties are of the view that would be of assistance. 12. In relation to the question of the costs of today, Ms Kyriacou's counsel submitted that while it was almost inevitable that his client would have to bear any costs thrown away by reason of the adjournment, the Court should today do no more than reserve those costs. All other parties applied for an order immediately that Ms Kyriacou should pay their costs thrown away by reason of the adjournment. I am unable to see any proper basis on which such an order should not be made today. It will be a matter for agreement or assessment in due course as to what in fact will have been thrown away by reason of today's adjournment. That is, however, not a matter which ought stand in the way of an order being made today to resolve the question. 13. The Court's orders are: 1. Vacate the hearing of these proceedings fixed for 21 to 23 October 2015 inclusive. 2. Any further evidence to be relied upon by Ms Kyriacou is to be filed and served on or before 30 October 2015. 3. Any evidence in reply from any party to Ms Kyriacou's further evidence is to be filed and served on or before 10 November 2015. 4. Fix the proceedings for hearing on 12 and 13 November 2015. 5. There be liberty to any party to apply on four hours' notice in the first instance to the Associate to Kunc J. 6. Ms Kyriacou is to pay the other parties' costs in both proceedings thrown away by reason of the vacation of today's hearing. 7. All notices to produce addressed to Mrs Kyriacou are stood over to the Subpoena List on 28 October 2015. 8. The following subpoenas be stood over to the Subpoena List on 28 October 2015: 1. Mrs Filomena Kyriaciou; 2. Mr John Kyriacou; 3. Angelo Russo; 4. Sonia Rahme; 5. The Proper Officer of Fessa Pty Limited; 6. Wentworth Williams Accounting Pty Ltd; 7. Wentworth Williams Advisory Services Pty Ltd; 8. Wentworth Williams Financial Service Pty Ltd; 9. Wentworth Williams Admin Services Pty Ltd; 10. Group One Technology Pty Ltd, 11. Wentworth Williams & Associates Pty Ltd; and 12. Wentworth Williams Auditors Pty Ltd. ********** Amendments 22 October 2015 - Minor change in representation on cover sheet 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. Decision last updated: 22 October 2015