Tsoi v Savransky and Anor (No.3)

[2005] FMCA 196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TSOI v SAVRANSKY & ANOR (No.3) [2005] FMCA 196

HUMAN RIGHTS – Application for adjournment of hearing.

Federal Magistrates Court Rules 2001

Tsoi v Savransky & Anor [2004] FMCA 879

Applicant: NATALIA TSOI

First Respondent: IVAN SAVRANSKY

Second Respondent: SHIPTRON PTY LTD
T/A ISBJ DENTURE CLINIC

File Number: SYG2290 of 2003

Judgment of: Raphael FM

Hearing date: 28 February 2005

Date of Last Submission: 28 February 2005

Delivered at: Sydney

Delivered on: 28 February 2005

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Mr D Thiering

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs to be assessed in accordance with Schedule 1 and Part 21 Rule 21.02(2)(b) of the Federal Magistrates Court Rules including reserved costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2290 of 2003

NATALIA TSOI

Applicant

And

IVAN SAVRANSKY

First Respondent

SHIPTRON PTY LTD T/A ISBJ DENTURE CLINIC

Second Respondent

REASONS FOR JUDGMENT

1. On Friday of last week, 25 February 2005, a barrister, Ms Evers, appeared on behalf of the applicant in these proceedings and sought an adjournment.  For the reasons which I gave on that day, I declined to grant an adjournment noting a decision that I had made on 18 November 2004 Tsoi v Savransky & Anor [2004] FMCA 879.

2. Today the applicant herself appears and seeks an adjournment.  The grounds are that she is suffering from a depressive illness for which she is receiving medication and consulting with a psychiatrist.  She says that she is unable to obtain the services of a lawyer today and she cannot, in the light of her medical condition, proceed without one.

3. The case was originally set down for hearing on 15 March 2005 following several adjournments which I discuss in the judgment I previously referred to.  Due to a court over listing the date of 15 March had to be vacated and the hearing date was scheduled for today.  The applicant was informed of this by letter on 22 December 2004.

4. The applicant also says that she is unable to provide documents to the court in support of her claim because those documents have been sent to the Health Care Complaints Commission where she has filed a complaint against the respondent making, I believe, similar allegations to those made in the proceedings before me.  When Ms Evers appeared before me she handed me a letter of 17 February 2005 confirming that the HCCC was currently investigating a complaint lodged by the applicant concerning "a dental technician".  The letter goes on to say:

   “The Commission is yet to finalise its investigation into the matter.”

5. Ms Tsoi says that she has been told that the Commission will be dealing with the matter next month but I have no evidence of this or evidence of what "dealing with" the matter may be.  Ms Tsoi says that because the HCCC has not completed its investigations she is unable to file in this court the conclusions of that Commission.  It is unlikely that the conclusions of that Commission will be admissible as evidence in this court in these proceedings, a fact which is probably not understood by the applicant.

6. Ms Tsoi also tells me that if the matter was restored for hearing in April she would have the benefit of legal advice.  I am afraid that I cannot accept this assertion.  The history of this matter is littered with attempts by Ms Tsoi to obtain legal assistance.  So far none of those organisations which set out to help persons in her situation have been prepared to help her.  Ms Evers made it quite clear that she was not going to help Ms Tsoi unless she was paid.

7. I regret that the safety nets that have been prepared by the government through the Legal Aid Commission and lawyers themselves through various pro bono activities have failed Ms Tsoi but the fact is that they have.  I do not wish to speculate as to their reasons for not providing her with legal assistance.  They have refused to do so and her alternatives are to present the case herself or to withdraw from it. 

8. I am not of the view that any benefit will be obtained by postponing the case until April even if I had a hearing date, which I do not.  On the other hand Mr Thiering and his client, who I have already commended for their enormous patience in relation to these proceedings, are entitled to their day in court.  I concluded in November that this matter must be brought to trial.  I repeated that conclusion to Ms Evers and I repeat it again to Ms Tsoi.  Either the case is brought today or Ms Tsoi must withdraw.

9. The applicant has maintained throughout these proceedings that she is suffering from a depressive illness which she believes arises out of the alleged incident.  Some medical reports have been provided to the court and would form part of the evidence in the proceedings.  However, what would have been needed today would have been a medical opinion from a qualified treating practitioner that the applicant was unable to undertake the task of representing herself.  Even if I received such a document, which I have not, I would have to balance it against the now considerable prejudice to the respondent.  But that balancing act is not required as the only document which I have received indicates a series of appointments that Ms Tsoi has had with Dr Sokolovic on dates between 2002 and 2005.  The last relevant appointment was on 22 February 2005 and there is a further appointment on 22 March.  The existence of past appointments and future appointments is not evidence of Ms Tsoi's inability to undertake proceedings.

10. Ms Tsoi has informed me that she is unable or unwilling to proceed.  She wishes to appeal my decision.  My decision not to grant an adjournment is an interlocutory one.  I think it would be more appropriate if any appeal includes a decision on the proceedings themselves and I invited Mr Thiering to make an application if he wished.  He did so.

11. The applicant has advised me that she cannot participate in the proceedings today. In all the circumstances and upon application by the respondent I believe it is proper that the proceedings should be dismissed and that I should make an order that the applicant pay the respondent's costs to be assessed in accordance with Schedule 1 and Part 21 Rule 21.02(2)(b) of the Federal Magistrates Court Rules including reserved costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  28 February 2005