Che Forest v Queensland Health, State of Queensland (Second Proceeding)

[2006] FCA 352

FEDERAL COURT OF AUSTRALIA

Che Forest v Queensland Health, State of Queensland (Second Proceeding) [2006] FCA 352

PRACTICE AND PROCEDURE – application by Applicant in the proceedings concerning scope of compliance by Respondent with an order for the conduct of a medical examination of the Applicant – discrimination proceedings – issues involving the Disability Discrimination Act 1992.

CHE FOREST v QUEENSLAND HEALTH, STATE OF QUEENSLAND

QUD522 OF 2005

GREENWOOD J
30 MARCH 2006

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 522 of 2005

BETWEEN:	CHE FOREST APPLICANT
AND:	QUEENSLAND HEALTH, STATE OF QUEENSLAND RESPONDENT
JUDGE:	GREENWOOD J
DATE OF ORDER:	30 MARCH 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Leave is granted to the Acting Disability Discrimination Commissioner to appear as amicus curiae in these proceedings.

2.The Notice of Motion filed by the Applicant on 28 February 2006 is dismissed. 

3.Leave is granted to the Respondent to file by 30 April 2006 a further affidavit or affidavits in response to the affidavit material filed by the Applicant in the proceedings in reply to the Respondent’s affidavits of evidence in chief to the extent that the affidavit material of the Applicant in reply raised additional factual material not dealt with by the Applicant in his affidavits of evidence in chief. 

4.A further directions hearing is to be held at 9.30am on Friday, 5 May 2005.

5.Costs of the Notice of Motion are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 522 OF 2005

BETWEEN:	CHE FOREST APPLICANT
AND:	QUEENSLAND HEALTH, STATE OF QUEENSLAND RESPONDENT
JUDGE:	GREENWOOD J
DATE:	30 MARCH 2006
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT DELIVERED AT 10.07AM

1. I have before me two Notices of Motion in two actions QUD522/2005 and QUD324/2005 in which the Applicant in each proceeding, Mr Forest, seeks orders in relation to the report of Dr. Unwin which was obtained by the Respondent as a consequence of an order of Justice Spender made on 1 December 2005 and arises out of an examination by Dr. Unwin of Mr Forest. 

2. The focus of that examination was, in part, to determine within the scope of Dr. Unwin’s expertise whether or not a medical condition suffered by the Applicant might be alleviated by reason of the inter-relationship between the Applicant and the use of his assistance dogs.  The Applicant in the motion advances the proposition that the report of Dr. Unwin goes beyond an examination of the question of whether the particular condition might be alleviated through the use of the Applicant’s assistance dogs, either “Buddy” or “Knuckles” and examines the question of the use of the assistance dogs and comments upon the utility, features and characteristics of the assistance dogs. 

3. It seems to me that upon a proper reading of the report of Dr. Unwin, the report does not do those things.  Dr. Unwin in his report has formulated a series of questions by which Dr. Unwin seeks to deal with the extent to which the identified condition might be ameliorated or alleviated by reference to or through the use by the Applicant of the assistance dogs.  In a sense, Dr. Unwin is responsive to a series of questions but the proper construction of the opinion expressed in the report in response to those questions is focused upon the medical question of whether or not the condition might be alleviated rather than a forensic assessment of the qualities or characteristics of the two assistance dogs in particular or assistance dogs in general. 

4. It may be that in the proceedings, Mr Forest might wish to put propositions to Dr. Unwin as to the basis upon which Dr. Unwin has expressed his opinion and whether the expression of those views can sit comfortably with either a failure to observe either of the dogs in question or with a failure to observe the behavioural interaction between either of the dogs and Mr Forest but it is correct to say those are matters which ought to be put to Dr. Unwin as part of the cross examination of Dr. Unwin as to the basis for the expression of his opinion.  The expression of the view reflected in the report is the expression of the medical opinion about the condition and factors which might influence its alleviation or otherwise. 

5. The report deals with an assessment of the mental state of the Applicant based upon Dr. Unwin’s examination, reaches diagnostic conclusions about that matter and then seeks to comment upon, as a matter of therapeutic consequence, whether the use of an assistance dog would alleviate the condition thus diagnosed. 

6. Mr Forest is a self-represented litigant and I have elected to record these observations in addressing for Mr Forest the concerns he has raised by his Notice of Motion concerning the report. 

7. I propose to dismiss the Notice of Motion in each proceeding and the costs of each Notice of Motion are reserved.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:             30 March 2006

Counsel for the Applicant:	Self-represented Applicant
Solicitor for the Applicant:	Self-represented Applicant
Counsel for the Respondent:	Mr Chris Murdoch
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	30 March 2006
Date of Judgment:	30 March 2006