George Potkonyak v Clifford Powell [2007] NSWDC 282

George Potkonyak v Clifford Powell [2007] NSWDC 282

The summons was dismissed because the proposed action would be futile: the defendant's attendance on subpoena, evidence and failure to produce documents were part of the litigious process and were covered by witness immunity under Cabassi v Vila. The proposed claim also sought, in substance, to impugn the outcome of Family Law proceedings, which could not be done in collateral proceedings. Further, even if those conclusions were wrong, the plaintiff had not adequately explained the delay of over two years between becoming fully aware of the relevant matters by 17 December 2003 and filing the summons on 19 January 2006.

Jurisdiction
Australia
Judgment Date
19 February 2007
Procedural Posture
Civil Application to Extend Time to Bring an Action Claiming Damages Against a Clinical Psychologist / Ex Tempore Judgment on Summons Filed 19 January 2006
Outcome
Summons dismissed.
Legal Topics
['extension of Time' 'witness Immunity' 'collateral Attack on Judgments' 'psychiatric Injury Damages' 'failure to Produce Documents on Subpoena']
['civil Procedure' 'limitation of Actions' 'torts' 'evidence'] ['extension of Time' 'witness Immunity' 'collateral Attack on Judgments' 'psychiatric Injury Damages' 'failure to Produce Documents on Subpoena']

Case Brief

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Procedural Posture

Civil Application to Extend Time to Bring an Action Claiming Damages Against a Clinical Psychologist / Ex Tempore Judgment on Summons Filed 19 January 2006

Legal Issues

  1. 1 ['Whether time should be extended for the plaintiff to bring a damages action against the defendant clinical psychologist.' 'Whether the proposed action would be futile because the defendant was entitled to witness immunity.' "Whether the plaintiff's proposed claim would impermissibly impugn the outcome of Family Law proceedings." 'Whether the plaintiff adequately explained the delay between becoming aware of the relevant matters and filing the summons.']

Ratio Decidendi

The summons was dismissed because the proposed action would be futile: the defendant's attendance on subpoena, evidence and failure to produce documents were part of the litigious process and were covered by witness immunity under Cabassi v Vila. The proposed claim also sought, in substance, to impugn the outcome of Family Law proceedings, which could not be done in collateral proceedings. Further, even if those conclusions were wrong, the plaintiff had not adequately explained the delay of over two years between becoming fully aware of the relevant matters by 17 December 2003 and filing the summons on 19 January 2006.

Court Disposition

Summons dismissed.

Orders

  • ['The summons is dismissed.' "The plaintiff is to pay the defendant's costs." 'Pursuant to the Uniform Civil Procedure Rules 50.3 (1)(b), time for the plaintiff to appeal to the Supreme Court is extended to fifty-six days.' 'Exhibits to be retained.']