Cipriano v Sew Eurodrive Pty Limited [2016] NSWSC 276

Supreme Court New South Wales

Medium Neutral Citation: Cipriano v Sew Eurodrive Pty Limited [2016] NSWSC 276 Hearing dates: 16 March 2016 Date of orders: 16 March 2016 Decision date: 16 March 2016 Jurisdiction: Common Law Before: Schmidt J Decision: Application to vacate hearing date granted. Catchwords: PROCEDURE – notice of motion – application to vacate hearing date – granted Legislation Cited: Workers Compensation Act 1987 (NSW) Category: Procedural and other rulings Parties: Anthony Cipriano (Plaintiff) Sew Eurodrive Pty Limited Representation: Counsel: Mr PR Stockley (Plaintiff) Ms L Friedwald (Defendant)

Solicitors: Brydens Lawyers (Plaintiff) Lee Legal Group (Defendant) File Number(s): 2015/294920 Publication restriction: None

EX TEMPORE Judgment 1. HER HONOUR: The short reasons for the making orders vacating next weeks' hearing with a costs thrown away order are that the application for adjournment comes forward, supported by affidavits sworn by the plaintiff's solicitor, Ms Furfaro, in October 2015, February and March 2016. 2. Those affidavits reveal that it was as a result of a representative error that it came to the attention of the plaintiff's legal representatives only in February 2016, that further medical reports were required to be put before the Court on this application for an order that an election made by the plaintiff to accept lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW) be revoked. 3. The application was opposed in circumstances where it was said that there is an issue as to the plaintiff's ability to satisfy any costs order which would thus be of dubious assistance to the defendant, even were a costs thrown away order made and where reliance is placed on what was revealed in Ms Furfaro's affidavit as to the many years over which the plaintiff's solicitors have acted. 4. Despite those objections, it seemed to me in the circumstances that justice required the adjournment to be granted, so that the production of medical reports relevant to the issue which falls to the Court to decide in the proceedings could be pursued, with the intention of putting them before the Court on the hearing of the application. 5. The motion asked that the matter be put into the inactive list for a period. That is entirely inappropriate in the circumstances which have arisen and it, accordingly, will come into the list before me on 29 March 2016 for directions. The parties should then be in a position to take another date.