Chapman v Katheappa - [2001] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CHAPMAN -v- KATHEAPPA [2001] WADC 49

CORAM: MARTINO DCJ

HEARD: 21 FEBRUARY 2001

DELIVERED : Delivered Extemporaneously on 21 FEBRUARY 2001 typed from tape and edited by Trial Judge

FILE NO/S: CIV 4464 of 1998

BETWEEN: LUKE BURLEY CHAPMAN
Plaintiff
AND
ANDRESH PERRY KATHEAPPA
Defendant

Catchwords:

Practice - Requirement by defendant of medical examination of plaintiff - Order 28 Rules of the Supreme Court - Section 11 Motor Vehicle (Third Party Insurance) Act 1943.

Legislation:

Nil

Result:

Declaration refused

Representation:

Counsel:

Plaintiff: Mr W C McDonald
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Ilberys
Defendant: John G Staude

Case(s) referred to in judgment(s):

Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Limited (1991) 5 WAR 208
Hotel Esplanade Pty Ltd and Plowman v The City of Perth [1964] WAR 51
Pioneer Concrete (Vic) Pty Ltd & Ors v Trade Practices Commission (1982) 152 CLR 460
State Rail Authority of New South Wales v Everson (1985) A Tort Rep 80-717

Case(s) also cited:

Brambles Holding Ltd v Trade Practices Commission & Anor (1980) 44 FLR 182 (No 2)
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Robertson v Corea & Anor, unreported; DCt of WA; Library No 5107; 10 October 1996
Ryan v Regent Enterprises Pty Ltd (t/as S Rifici) (1991) 3 WAR 552
The Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333

MARTINO DCJ: This is an application by the plaintiff for a declaration that he is not required to undergo medical examination at the request of the defendant pursuant to s 30 of the Motor Vehicle (Third Party Insurance) Act 1943 and that such examination should take place in accordance with provisions of O 28 r 1 of the Rules of the Supreme Court.
The background to the application is that on 9 August 1997 the plaintiff suffered personal injuries in a motor vehicle accident. On 19 November 1998 the plaintiff's writ was issued. On 29 June 2000 the action was entered for trial. On 21 November 2000 a report from Mr Skerritt, psychiatrist, dated 20 November 2000 was served on the defendant by the plaintiff's solicitors. That was and is the only psychiatric report that has been served on the defendant.
On 12 December 2000 there was an informal pre‑trial conference at senior counsel's chambers. That conference was not successful in achieving a settlement of the action. On 19 December 2000 there was a pre‑trial conference in this Court, and orders were made that the action be listed for a further pre‑trial conference on 7 March 2001 and a listing conference on 19 March 2001.
The Insurance Commission of Western Australia seeks to have the plaintiff reviewed by a Dr S Febbo, psychiatrist, on 27 February 2001 pursuant to s 30 of the Motor Vehicle (Third Party Insurance) Act 1943. The plaintiff opposes the examination being pursuant to that provision, and the essence of that opposition is that the plaintiff contends that any such examination should be pursuant to O 28 of the Rules of the Supreme Court so that the plaintiff will receive as of right a copy of Dr Febbo's report following that examination.
The Commission requires the examination to be pursuant to s 30 so that it can retain to itself the choice of whether or not it provides a copy of Dr Febbo's report to the plaintiff. The defendant takes a preliminary point that this Court does not have jurisdiction to give the declaration sought because the court has only ancillary equitable jurisdiction under s 55 of the District Court Act.
Counsel for the defendant referred to Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Limited (1991) 5 WAR 208. However, that case concerned the jurisdiction of this Court to grant a declaration in a third party claim and it was based upon the fact that a third party notice is a separate writ.
In this case the plaintiff's claim is for damages for personal injuries and he seeks this declaration in that action because he says it is concerned with the conduct of his claim in this action. It is my view that the plaintiff does have the capacity to seek such a declaration. The court does have ancillary equitable jurisdiction to ensure that a matter within its jurisdiction is progressed properly.
I turn now to the substance of the application. It is clear from s30(2) of the Motor Vehicle (Third Party Insurance) Act that the section contemplates a notice requiring medical examination being issued after an action has been commenced because it provides that if the plaintiff without reasonable excuse refuses to submit to the medical examination any proceedings commenced shall not be proceeded with.
The submissions of the plaintiff are that notwithstanding the fact, the defendant should not have power to require an examination under s 30 where an action is on foot because the appropriate procedures are laid down in O 28, and the plaintiff points particularly to the fact that the action has been entered for trial.
In this case for two reasons I am of the view that the fact that the action has been entered for trial is not of any significance. The first reason is that the plaintiff did not provide a psychiatric report to the defendant until almost five months after the entry for trial. The second reason is that the action has not yet been listed for trial, that is, no trial dates have yet been given, the listing conference being about to take place on 19 March 2001.
Another submission on behalf of the plaintiff is that express provisions in rules such as O 28 should not be overridden by some other collateral statutory power and Hotel Esplanade Pty Ltd and Plowman v The City of Perth [1964] WAR 51 has been referred to. In that case Hale J said obiter that by-laws might override prior legislation. In Delegated Legislation in Australia, 2nd ed, Pearce and Argument at [19.17], the authors express doubt about the correctness of that proposition and described it as a somewhat novel suggestion. In State Rail Authority of New South Wales v Everson (1985) A Tort Rep 80-717 Hunt J in the Supreme Court of New South Wales referred to Hale J's obiter dictum and declined to accept Hale J's proposition.
It is my view that s 30 being an express power to require an examination where an action has already been commenced, delegated legislation in the Rules of the Supreme Court could not impinge upon that power.
Parliament has given the Insurance Commission the power to require such an examination. That does not give the Insurance Commission power to interfere with actions and if the power were used so improperly as to interfere with judicial proceedings it would constitute a contempt of this Court and would be subject to the exercise of the powers of this Court, just as a similar power was interpreted by the High Court in Pioneer Concrete (Vic) Pty Ltd & Ors v Trade Practices Commission (1982) 152 CLR 460.
In this case because the action has not yet been listed for trial, I do not consider that the requirement of an examination under s 30 improperly interferes with the plaintiff's action. If the defendant obtains a report from Dr Febbo that it wishes to use at the trial of this action, it must disclose that report to the plaintiff a reasonable time before trial by reason of O 36A r 2(5).
A reasonable time would be sufficient time for the plaintiff's advisers to consider the report and to obtain comment on it by his psychiatrist. For those reasons I have concluded that the application should not succeed.