Chopra v State of NSW (South Western Sydney Local Health District)

[2023] NSWCA 142

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142

Hearing dates:

6 June 2023

Date of orders:

27 June 2023

Decision date:

27 June 2023

Before:

Mitchelmore JA at [1]
Kirk JA at [54]
Simpson AJA at [55]

Decision:

(1) Pursuant to rule 51.10 of the Uniform Civil Procedure Rules 2005 (NSW), grant an extension of time to the applicant to file the Summons Seeking Leave to Appeal dated 10 February 2023.

(2)   Grant leave to appeal.

(3)   Dispense with the requirement for the applicant to file and serve a notice of appeal in accordance with the draft notice of appeal.

(4)   Appeal allowed.

(5)   Set aside each of orders 2, 3, 4, 5, 7 and 8 of Gibb DCJ dated 15 December 2022 and, in lieu thereof, order that the respondent’s notice of motion filed 21 October 2022 be dismissed.

(6)   The respondent is to pay the applicant’s costs of the appeal.

Catchwords:

APPEAL – leave to appeal – appeal from interlocutory order – primary judge granted application for medical examination of plaintiff – application made after exchange of Pre-Filing Statement and Pre-Filing Defence (“PFD”) pursuant to Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where PFD did not address plaintiff’s psychological condition – where test sought on basis that solicitor considered it necessary to evaluate risk of exaggeration or feigning of condition – whether error in allowing examination without considering unchallenged medical evidence that questioned efficacy of testing and raised serious concerns that it would be detrimental to plaintiff’s health – appeal allowed

CIVIL PROCEDURE – medical examinations – claim for work injury damages – defendant applied for medical examination of plaintiff – re-exercise of discretion under r 23.4 of Uniform Civil Procedure Rules 2005 (NSW) – whether defendant’s evidence supported alleged need for testing – specificity of medical evidence to plaintiff’s circumstances – application dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

DK v Director of Public Prosecutions (NSW) (2021) NSWLR 66; [2021] NSWCA 134

Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75

House v The King (1936) 55 CLR 499

KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead and Anor [2010] NSWSC 891

Plaintiff [name withheld] v Stapleton [2017] NSWSC 914

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

Prescott v Bulldog Tolls Limited [1981] 3 All ER 869

Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWSC 136

Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 186

You, Jae Bok v R [2020] NSWCCA 71

Category:

Principal judgment

Parties:

Livleen Chopra (Applicant)
State of New South Wales (South Western Sydney Local Health District) (Respondent)

Representation:

Counsel:
D Hooke SC / L Morgan (Applicant)
D Stanton / T Weller-Wong (Respondent)

Solicitors:
Turner Freeman Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/45392

Publication restriction:

N/A

 Decision under review 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

N/A

Date of Decision:

15 December 2022

Before:

Gibb DCJ

File Number(s):

2022/101276

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Livleen Chopra, was assaulted by a patient in the course of her employment as a nurse at Blacktown Hospital. She suffered physical and psychological injuries and was subsequently diagnosed with post-traumatic stress disorder. She commenced proceedings in the District Court against the respondent, the State of New South Wales (South Western Sydney Local Health District), claiming work injury damages.

Before the applicant commenced proceedings, the parties engaged in the procedural steps for which the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) makes provision, including the exchange of a Pre-Filing Statement (“PFS”) and a Pre-Filing Defence (“PFD”). The PFS included reports from Dr Khan, the applicant’s treating psychiatrist, and Dr Rastogi, an independent psychiatrist. The medical evidence served with the PFD did not address the applicant’s psychological condition.

After the applicant commenced proceedings, the respondent requested that she attend psychometric testing with a psychologist, Dr McMahon. The applicant declined to attend. The respondent applied to the District Court for an order under r 23.4 of the UCPR requiring that she do so. The evidence on the application included an affidavit from the instructing solicitor which referred to a clinical entry made available to him in August 2022, based on which he considered it was necessary to perform cognitive testing and evaluate the risk of the applicant exaggerating or feigning her condition. The respondent relied on reports by Dr Khan and Dr Rastogi, which were directed at the applicant’s particular circumstances and emphasised the (lack of) clinical merit of psychometric testing and the associated risks to the applicant’s mental health. On 15 December 2022, Gibb DCJ made the order under r 23.4, giving ex tempore reasons.

The applicant sought leave to appeal, which application was heard concurrently with the appeal. Her draft notice of appeal contained six proposed grounds of appeal, including a contention that her Honour erred in requiring the applicant to undergo psychometric testing in circumstances where her unchallenged medical evidence raised serious concerns that the psychometric testing would be detrimental to her health and questioned the efficacy of such a report.

The Court (Mitchelmore JA, Kirk JA and Simpson AJA agreeing), granting leave to appeal and allowing the appeal, held:

1. The primary judge’s exercise of the discretion to make an order under r 23.4 of the UCPR miscarried in a manner that was productive of substantial injustice to the applicant. Significantly, her Honour failed to take into account the unchallenged medical evidence that not only questioned the efficacy of the testing having regard to the applicant’s circumstances, but also raised serious concerns that it would be detrimental to her health. Consequently, it was unnecessary to consider the other grounds of appeal: at [5], [33], [35]-[38].

   Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 186 applied; You, Jae Bok v R [2020] NSWCCA 71; Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75; DK v Director of Public Prosecutions (NSW) (2021) NSWLR 66; [2021] NSWCA 134 considered.

2. In re-exercising the discretion under r 23.4, the reasonableness of the applicant’s refusal to attend the testing outweighed any reasonableness of the respondent’s request. The clinical notes upon which the respondent’s instructing solicitor relied were not clearly linked to any alleged potential for exaggeration or feigning and, in so far as they referred to the applicant’s memory issues, that had been identified before August 2022. The respondent’s evidence as to the purpose of the testing was not specific to the applicant’s case, unlike the applicant’s medical evidence in opposition to the testing which indicated, significantly, that the testing could result in an acute deterioration in her psychiatric condition. The central purpose of the request was to test the applicant’s veracity generally. The issue of delay was a matter of speculation, upon which not much weight was placed: at [5], [39]-[50].

   KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead and Anor [2010] NSWSC 891 (“KF v Children’s Hospital”); Plaintiff [name withheld] v Stapleton [2017] NSWSC 914; Prescott v Bulldog Tolls Limited [1981] 3 All ER 869 considered.

Judgment

1. MITCHELMORE JA: The applicant, Livleen Chopra, seeks leave to appeal from an order of the District Court, made pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), that she attend psychometric testing arranged by the respondent, the State of New South Wales (South Western Sydney Local Health District). An extension of time was required to file the application for leave to appeal, which was not opposed.

2. The proceedings in which the District Court made the order involve a claim for work injury damages brought by the applicant against the respondent, following an incident in which she was assaulted by a patient in the course of her employment as a nurse at Blacktown Hospital. The applicant suffered physical and psychological injuries and she was subsequently diagnosed with post-traumatic stress disorder (“PTSD”).

3. Before the applicant commenced the proceedings, the parties engaged in the procedural steps for which the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) makes provision. After the applicant commenced proceedings, the respondent requested that the applicant attend psychometric testing with a psychologist, Dr McMahon. The applicant had attended all of the previous medical examinations requested by respondent, but declined to attend the examination by Dr McMahon, prompting the respondent to apply to the District Court for an order under r 23.4 of the UCPR requiring that she do so. On 15 December 2022, Gibb DCJ made that order, giving ex tempore reasons.

4. As her Honour’s order was interlocutory, the applicant requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e). The draft notice of appeal contains six proposed grounds of appeal which allege that the primary judge made errors within the scope of the principle in House v The King (1936) 55 CLR 499. Recognising the high bar to applications for leave to appeal involving matters of practice and procedure (as to which see, for example, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]-[6]), the applicant contends that her application has important ramifications in terms of a defendant’s obligations to require a plaintiff to undergo medical examinations in work injury damages claims. The applicant also contends that the primary judge’s decision involved clear errors of principle in applying the Civil Procedure Act 2005 (NSW) (“CP Act”) and the WIM Act which, if not corrected, would cause her substantial injustice.

5. The primary judge’s exercise of the discretion to make an order under r 23.4 of the UCPR miscarried in a manner that was productive of substantial injustice to the applicant. Significantly, her Honour failed to take into account the unchallenged medical evidence on which the applicant relied, which not only questioned the efficacy of the testing having regard to her circumstances but also raised serious concerns that it would be detrimental to her mental health. It follows that leave to appeal should be granted and the appeal should be allowed. In the re-exercise of the discretion to make an order under r 23.4 of the UCPR, I would not make an order requiring the applicant to attend psychometric testing.

Background to the decision of the primary judge

6. The background to the application was not in dispute and can be stated shortly. Late in the evening of 25 December 2017 or the early hours of 26 December 2017, the applicant was assaulted by a patient when she was working at Blacktown Hospital. There is no issue that she sustained an injury in the course of her employment. There is also no issue that the assault caused the applicant a psychological injury that gave rise to a 22% permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (“WC Act 1987”). The applicant’s claim under the WC Act 1987 was resolved with a payment reflecting that percentage of impairment.

7. The applicant then made a claim against the respondent for work injury damages, being a claim limited to damages for economic loss. That claim proceeded through the stages for which provision is made in the WIM Act, including the exchange of a Pre-Filing Statement (“PFS”) on 5 January 2022 and a Pre-Filing Defence (“PFD”) on 15 February 2022.

8. The PFS served on behalf of the applicant included reports from Dr Abdul Khan, the applicant’s treating psychiatrist, reports from Dr Richa Rastogi, an independent psychiatrist, and a vocational assessment report from Mr Ross Girdler. In serving the PFD, the respondent’s solicitors relied on a report from Dr E Price, a rehabilitation specialist, and a report from Procare Investigations. It also foreshadowed that if the matter proceeded to trial it would rely on “[u]pdated medical evidence including reports in response to any updated or fresh medical evidence served by the [applicant]”.

9. The medical evidence served with the PFD did not address the applicant’s psychological condition. Before service of the PFD, the applicant had attended consultations with a psychiatrist, Dr Teoh, at the request of the insurer. She had also been examined by a psychologist and two physical and vocational assessors. In his report, Dr Teoh had not cast doubt on the applicant’s diagnosis, causation, the applicant’s incapacity or veracity, or any other matter to which the psychometric testing the subject of the respondent’s application might be thought relevant. The respondent did not serve a report from the psychologist who had examined the applicant, either with the PFD or subsequently.

The respondent’s application and the evidence on the application

10. On 14 September 2022, the respondent, through its solicitors, requested that the applicant attend an appointment with a clinical psychologist, Dr John McMahon, on 25 October 2022. By letter from the applicant’s solicitors on the same day, the applicant declined to attend.

11. On 21 October 2022, the respondent filed the application for an order under r 23.4 of the UCPR that the applicant “submit to an examination by Dr John McMahon arranged by the [respondent] for 10:00am on Tuesday, 20 December 2022”. Rule 23.4 provides:

23.4   Order for examination

(1)     The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.

(2)     If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.

12. The evidence on the application included two affidavits of the respondent’s instructing solicitor, Luke Sandars. In his second affidavit, affirmed on 12 December 2022, Mr Sandars stated at [3]:

“On 6 August 2022, I reviewed the material produced under subpoena by Workers Doctors. Annexed hereto and marked “A” is an extract of the clinical entry recorded by Dr Ben Dickson on 8 November 2021. As a result of that entry I formed the view that an examination by Dr McMahon was necessary to perform cognitive testing and to evaluate the risk of exaggeration or feigning of the condition.”

13. This was the only evidence before the Court on the application as to the purpose of the consultation with Dr McMahon. The clinical entry of Dr Dickson, dated 8 November 2021, to which Mr Sandars referred, included the following material:

“Has attended local GP to explore management for ‘memory loss’

Told them she had been experiencing memory difficulty for years and requesting details to be sent to her family GP

D/W [the applicant], has c/o impaired concentration, memory in context of severe anxiety and panic, which was noted along with recommendation of treatment of anxiety but nil specific scans or further tests have been done

However if writes to practice with name of Dr and request for notes can send medical notes to this doctor for further investigation

Eager to discuss cognitive testing and indications for scan with Dr Khan at next review

Trying to get appt with Prof Brown”

14. Senior Counsel for the applicant submitted during the hearing in this Court that it was far from apparent why this clinical note engendered the response that it was necessary to obtain psychometric testing. There is force in that submission in circumstances where Mr Sandars provided no explanation of his process of reasoning, from the clinical note to the statement in [3] of his second affidavit.

15. The respondent relied on a further clinical note made by an unidentified psychologist on 22 November 2021, which, although not expressly relied on by Mr Sandars in [3] of his second affidavit, was annexed to that affidavit. The further clinical note stated, relevantly:

“Symptoms – patient experience

- ‘everything is going backwards, pain is getting worse, memory is getting worse’

- ‘I forget day to day things’ such as phone calls. groceries that need to be bought

…

- finding hard to find her words

- wants to get a MRI brain scan to investigate cognitive issues further

- ‘i’m feeling so tired’

…

Treatment/Review – rationale

…

- still waiting for Dr Brown’s report/appt, available in April 2023…”

16. Mr Sandars also annexed to his second affidavit a letter from Dr McMahon, dated 17 November 2022, which responded to a request that he provide “a short note, explaining the forensic value of psychometric testing and how it will assist the Court in determining issues with the plaintiff’s case”. Dr McMahon’s response was brief and was not specific to the applicant:

“Psychometric testing uses structured assessment procedures such as questionnaires that are known to separate between people with certain diagnoses like Major Depressive Disorder or Post-Traumatic Stress Disorder and people without those diagnoses. These psychometric tests assist the court by more accurately identifying the diagnosis and other factors that play a role in a person’s recovery. These tests are not a single examiner’s opinion, but are rather tests that have been validated through scientific processes to objectively measure psychopathology and other factors in recovery.”

17. The Court did not otherwise have any clear evidence as to what psychometric testing involved, although the letters of instruction to Dr Khan and Dr Rastogi suggested that it “could take as long as six hours”.

18. The applicant’s solicitor, Fady Dous, swore two affidavits in opposition to the respondent’s application. Annexed to the second of his affidavits, sworn on 14 December 2022, were reports from Dr Khan and Dr Rastogi, dated 13 December 2022 and 14 December 2022 respectively. Relevantly, Dr Khan expressed the opinion that, as a psychologist, Dr McMahon was not qualified to comment on diagnostic issues requiring medical expertise. More significantly, Dr Khan stated that Dr McMahon did “not understand the complexity of [the applicant’s] presentation, which includes pervasive symptoms of post-traumatic stress disorder in the context of a traumatic work-related injury that has required extensive psychiatric treatment to date”. Dr Khan saw no merit in the proposed testing, stating:

“Psychometric testing is not diagnostic. Psychometric testing has not been validated for patients from Ms Chopra’s South Asian background who suffer from post-traumatic stress disorder.

As described earlier, if there was a clinical indication for Ms Chopra to be referred for psychometric testing, I (as Ms Chopra’s treating psychiatrist) would already have made this referral. Numerous independent psychiatrists have also assessed Ms Chopra and not questioned the validity of her psychiatric presentation.”

19. In addition to not assisting an assessment of the applicant’s condition, or her capacity for employment, Dr Khan stated that if the applicant were exposed to the testing there was “a high risk that her psychiatric condition will acutely deteriorate and she would become at a high risk of harm to herself”. Dr Rastogi expressed a similar view, stating that exposing the applicant to “such unnecessary psychometric testing and being a trigger, her fragile emotional state and distress will exacerbate with risk of deterioration and at immense risk to her mental health which is not needed”.

19. Dr Rastogi also considered that psychometric testing had “limited validity given cultural and language limitations given [the applicant’s] Asian background”. As to the purpose of the psychometric testing, Dr Rastogi expressed the following opinion:

“Any testing including psychometric testing needs to be corroborated with history and clinical examination and interpreted in context of condition. [The applicant’s] symptoms of her condition and presentation have been consistent and documented by clinical evaluation by three psychiatrists with no evidence of exaggeration or feigning. … If there were any clinical concerns or indication by her treating psychiatrist during the course of treatment through longitudinal observation about the validity of her psychiatric presentation, a referral for psychometric testing would have been made however there were no inconsistencies reported and independent assessments were in line with diagnosis, causation and prognosis.”

21. In Dr Rastogi’s opinion, psychometric testing was not a diagnostic tool and he saw no benefit in the applicant being assessed.

The decision of the primary judge

22. The primary judge referred with approval to the applicant’s submission that in considering an application for an order under r 23.4 of the UCPR, the Court was required to act judicially, against the background of ss 56-58 of the CP Act. The applicant had referred expressly in this regard to s 58(2)(b)(vi), which requires regard to be had to the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.

23. The primary judge also referred to a number of authorities on the exercise of the discretion to order a medical examination. By way of example, her Honour extracted a passage from the reasons of McCallum J in Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 (“Stapleton”), in which a plaintiff, in an action for damages for personal injury due to sexual assaults allegedly committed against him by the first defendant, sought to be excused from the requirement that he attend an examination by a psychiatrist nominated by the first defendant (at [1]-[2]). McCallum J referred at [4] to the statement in Prescott v Bulldog Tolls Limited [1981] 3 All ER 869 (“Prescott”) that in determining an application of this sort a court must:

“(a)   assess whether the defendant’s request is reasonable in light of the information and advice received from its experts;

(b)   assess whether the plaintiff’s refusal is similarly reasonable;

(c)   if both are reasonable then balance the plaintiff’s right to personal liberty against the defendant’s right to defend itself in the litigation the plaintiff has brought against it; one right not being considered to be more important than the other right;

(d)   examine objectively the weight of the reasonableness of the defendant’s request as seen by it as against the weight of the plaintiff’s objection and balance one against the other ‘to ensure a just determination of the cause as between the parties taking into account their reasonable requirements’.”

24. McCallum J then observed that while in many personal injury cases, the intrusion on personal liberty that a medical examination necessarily entails will readily be seen as necessary in the interests of fairness, “regard must be had to the kind of issues raised by the claim and the kind of examination requested” (at [7]). That said, it was the task of the Court to do its best to ensure that each party has a fair trial (at [8]).

25. The primary judge in the present case set out the parts of McCallum J’s reasons in Stapleton to which I have just referred, and described [7]-[9] of her Honour’s reasons as “precisely on point as to the balancing act”. However, at no stage did her Honour refer to the medical evidence on which the applicant relied to support the reasonableness of her refusal to attend an examination by Dr McMahon. Instead, her Honour referred, on more than one occasion, to there being “no medical opinion supporting the need for this proposed examination”.

26. Her Honour did refer to the medical notes annexed to Mr Sandars’ affidavit, describing them as indicating “active consideration by the plaintiff’s own medical practitioners at the moment, of issues closely related”. Her Honour emphasised in this context the reference in the medical notes to the applicant wanting a brain scan to investigate cognitive issues. The primary judge relied on this material without acknowledging that it was directly inconsistent with the expert evidence on which the applicant relied in the application then before her Honour.

27. The applicant had also relied on s 318 of the WIM Act, which provides:

318  Parties limited to pre-filing statement and defence

(1) For the purposes of court proceedings on a claim for work injury damages—

(a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and

(b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant’s pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and

(c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and

(d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.

(2) The court is not to grant leave under this section unless satisfied that—

(a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b) the failure to grant leave would substantially prejudice the party’s case.

(3) The regulations may provide for exceptions to this section.

28. The primary judge described s 318 of the WIM Act as raising a “single significant bar that colours the entire proceedings”, by limiting the parties to the PFS and PFD. However, her Honour also reasoned that the application of the section to any report that was prepared following the psychometric testing was not a matter for her Honour. Rather, the admissibility of any such report was a matter for the trial judge. Considering s 318 on the application before her Honour was, in her words, “purely speculative”.

29. The applicant advanced a related argument regarding the delay that would ensue if the Court made an order under r 23.4 of the UCPR. Although there was no evidence before her Honour on the application, it was (and remains) common ground that there needs to be a 12 month gap between rounds of psychometric testing, in order to avoid what was referred to as the “practice effect”. In dismissing the applicant’s argument on delay, the primary judge considered that regardless of whether the orders sought were made, there was no prospect of any trial being heard before mid to late 2023. Further, in circumstances where the applicant had “closed her case” without psychometric testing evidence, whether she wanted to “re-open in chief” to lead evidence of her own testing was “a matter of speculation where the [applicant] opposes all fresh testing”.

30. In so far as the applicant submitted that the psychometric testing was for a collateral purpose, namely, to obtain material to test her credit, the primary judge acknowledged that the respondent based its application on a forensic decision of its solicitor. Her Honour also accepted that if she was going to grant the application, she needed to be satisfied that it was not a fishing expedition. In concluding that she was satisfied that the application did not meet that description, her Honour considered authorities regarding subpoenas and the concept of “adjectival relevance” before concluding that it was “more than possible that psychometric testing might throw light”. Her Honour did not refer at this point to what the testing might throw light on, but later stated that the issue being raised went “directly to the issues between the parties and directly to the central issue in the case, namely the capacity of the plaintiff in a work sense, where a claim is brought for total disability”.

31. The primary judge relied in this respect on the letter of instruction that Mr Sandars had prepared for Dr McMahon and considered that while it was “plain” that there was a degree to which there was a collateral purpose for the testing, it was not the sole or overriding purpose. Her Honour stated:

“If it were the case that applications such as this could be resolved only by reference to medical opinion as to the forensic need for investigation, the defendant’s application would have to fail.

However, that would mean that the forensic decisions as to the conduct of cases involving personal injuries would be subject exclusively to the decisions of the medical experts retained, not [t]hose of the legal representatives.

That cannot be the case. It must be appropriate, where a decision is made for forensic purposes, to have regard to the opinion of the solicitor, that it would be, in the solicitor’s view, a matter that would assist.

If I am wrong in that; and decisions as to medical investigations and medical evidence are to be made by medical practitioners and not by the legal practitioners with carriage of the cases, such is life. This decision will be wrong.”

The appeal

32. The Draft Notice of Appeal contained six grounds of appeal. However, it is only necessary to address Ground 4, which alleged that her Honour erred “in allowing the [respondent] to have the [applicant] examined for the purposes of psychometric testing in circumstances where the [applicant’s] unchallenged medical evidence raised serious health concerns that the psychometric testing would be detrimental to the [applicant’s] health and questioned the efficacy of such a report”. That ground should be upheld.

33. I have referred in some detail above to the opinions of Dr Khan and Dr Rastogi. Their reports went not only to the clinical merits of the proposed testing, having regard to the applicant’s circumstances, but also to the likely deleterious impact the testing would have on her mental health. As Counsel for the respondent frankly accepted, it was necessary for her Honour to consider that evidence in undertaking the balancing act that consideration of r 23.4 of the UCPR requires.

34. The respondent submitted that the primary judge did consider the reports of Dr Khan and Dr Rastogi. The respondent relied on her Honour’s statement that there was no medical evidence to support the examination, and on the condition that her Honour imposed in making the order under r 23.4, that a psychiatrist be present at the testing. Acknowledging that neither of these matters involved her Honour expressly considering the reports of Dr Khan and Dr Rastogi, the respondent submitted that these matters grounded an inference that her Honour had considered them.

35. The nature and content of the reports of Dr Khan and Dr Rastogi tells against the drawing of that inference from the general terms of the statement in the reasons on which the respondent relied. The reports were directed at the applicant’s particular circumstances, emphasising the (lack of) clinical merit of psychometric testing and the associated risks to the applicant’s mental health. In the face of such content, which was highly material to the application her Honour was considering, the absence of any reference to it in the reasons is not answered by her Honour’s statement that there was no medical evidence to support the testing. Nor is the condition imposed on the testing, which came at the conclusion of the reasons, indicative of a consideration of the psychiatrists’ evidence in conducting the balancing exercise that her Honour accepted was required.

36. Counsel for the respondent also sought to rely on passages from the transcript of the argument before the primary judge in support of the submission that her Honour had considered the reports. However, as Justice Kirk took up with counsel during the hearing, by reference to Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 186 at [130] (Hayne J), the primary judge was bound to state the reasons for arriving at the decision reached. It follows, as Hayne J stated in Fitzgibbon, that “the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”.

37. The circumstances in which an appellate court may have recourse to exchanges in the transcript as an aid to construction of the reasons are limited. In You, Jae Bok v R [2020] NSWCCA 71, Basten JA observed that “[v]ery occasionally, that course may be warranted, for example where an ex tempore judgment is given in brief terms immediately following submissions in which it is apparent that the judge is relying upon an understanding reached in the course of submissions”: at [20]. In Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75, Macfarlan JA relied on the transcript as putting beyond doubt what was otherwise available as a matter of inference from the terms of an ex tempore judgment: at [29]; cf [4] (Basten JA); see also DK v Director of Public Prosecutions (NSW) (2021) NSWLR 66; [2021] NSWCA 134 at [46] (McCallum JA, Brereton JA and Simpson AJA agreeing). The purpose for which counsel for the respondent sought to rely on the transcript in this case is broader, and impermissible.

38. In failing to bring the applicant’s medical evidence to account in the balancing exercise, the primary judge made an error in the exercise of her discretion to make an order under r 23.4 of the UCPR. That error is sufficient to warrant this Court re-exercising the discretion afresh. It is unnecessary to consider the other grounds of appeal.

Re-exercising the discretion in r 23.4 of the UCPR

39. It is axiomatic that the power in r 23.4 of the UCPR is to be exercised judicially and having regard to factors relevant to the exercise of the discretion in the particular case: KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead and Anor [2010] NSWSC 891 (“KF v Children’s Hospital”) at [21] (Johnson J). It is also necessary, of course, to bear in mind the overriding purpose of the rules of court, to which s 56(1) of the CP Act refers, and to the objects of case management in ss 57(1). I have also considered whether the order sought is in accordance with the dictates of justice, as required by s 58(1). My reasons below reflect my consideration of these matters in the particular circumstances of the application here made.

40. I have referred above to the balancing exercise that is involved in an application of this nature. In determining the interlocutory application, the Court is not undertaking a type of trial in advance, and determining the application is not the occasion to attempt to reach a firm conclusion on the medical issues between the parties: KF v Children’s Hospital at [47].

41. The applicant emphasised that if the testing were ordered, the respondent would need leave to rely on any report that results from it, pursuant to s 318(1)(d) of the WIM Act. The admissibility of any report would be a matter for the trial judge, taking into account the matters in s 318(2)(a) and (b). In the absence of any report, it is not possible to predict with any certainty what the outcome of that application would be, and the interlocutory application is not the occasion for engaging in detail with the matters to which s 318(2) refers. That said, the timing of the request and the solicitor’s reasons for it, along with the general relevance of the testing as advanced by the respondent in support of the application, bear on my assessment of the reasonableness of both the respondent’s request and the applicant’s refusal.

42. Starting with the reasonableness of the respondent’s request, the only evidence before the primary judge in support of the testing was [3] of the second affidavit of Mr Sandars, which I have set out at [12] above. In asserting that testing was necessary to “evaluate the risk of exaggeration or feigning of the [unidentified] condition”, Mr Sandars referred to a clinical note without identifying any particular part thereof, or linking its content to the asserted potential for the applicant to be exaggerating or feigning.

43. In so far as the clinical note referred to the applicant having issues with her memory, Senior Counsel for the applicant observed that this had been identified before August 2022. The clearest example to which Senior Counsel referred in this respect was the particulars of the applicant’s claim which were provided pursuant to s 232 of the WIM Act under cover of a letter from her solicitors dated 30 July 2021. The particulars included “[i]mpairments of concentration and memory” in the list of disabilities the applicant suffered.

44. The most telling evidence of the reason for the request appears in the letter of instruction to Dr McMahon dated 12 December 2022. In that letter, Mr Sandars extracted the clinical note from 8 November 2021 and stated that it raised “concern that cognitive testing is necessary”. He further stated: “The reference to memory difficulties ‘for years’ raises a concern that the Plaintiff may be exaggerating or feigning her condition”. The questions put to Dr McMahon in the letter were fairly generic in their terms, although they also included “Do you consider the plaintiff to be exaggerating or feigning the condition?” and “On examination, did you discover any inconsistency?”.

45. Apart from the clinical notes, the purport of which were far from clear, the respondent did not rely on any medical evidence in support of the application that was specific to the applicant’s case. Dr McMahon was asked how psychometric testing would “assist the Court in determining issues with the plaintiff’s case”, but his response was general in its terms, saying no more than that the tests “assist the court by more accurately identifying the diagnosis and other factors that play a role in a person’s recovery”. In so far as Dr McMahon described psychometric testing as having been validated, it is necessary to bring to account the opinion of Dr Khan that such testing has not been validated for patients of the applicant’s South Asian background who suffer from PTSD and the opinion of Dr Rastogi that the testing was of “limited validity given cultural and language limitations”.

46. Not only is there an absence of medical evidence in support of the request for psychometric testing, Dr Khan and Dr Rastogi were both of the view that psychometric testing was not clinically indicated and would serve no purpose. True it is, as counsel for the respondent submitted, that both psychiatrists were critical of the notion that Dr McMahon, a psychologist, was seeking to encroach on their field in so far as he was advocating for psychometric testing for a diagnostic purpose. However, their opposition to the testing was expressed with specific reference to the applicant’s circumstances, in a manner that was absent from Dr McMahon’s report. The nature of the evidence relied on by the respondent does give credence to the applicant’s submission that the sole and impermissible purpose of the request was to test the applicant’s veracity generally: Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWSC 136 at [49] (Hodgson JA). It is not necessary to reach a final view about whether the collateral purpose was the sole purpose, but it was central to the request and I have taken it into account on that basis.

39. As to the reasonableness of the respondent’s refusal to attend the testing, as I have noted above (see [18] to [21]) the reports of Dr Khan and Dr Rastogi address that issue. Both Dr Khan and Dr Rastogi, who were briefed with a copy of Dr McMahon’s letter of 17 November 2022, expressed the view that requiring the applicant to submit to the testing could result in an acute deterioration in her psychiatric condition. This is a consideration on which I place significant weight.

40. The respondent submitted that the letter of instruction to Dr Khan and Dr Rastogi included an incorrect assumption, namely, that there was no issue between the parties that the applicant was “totally incapacitated for employment (she continues to be paid weekly compensation by the defendant on that basis)”. Even if that assumption were wrong, it is difficult to see how it would relevantly have affected the views expressed, having regard to the questions that were asked and answered. Senior Counsel for the applicant referred specifically in this regard to Question 4(b), which asked whether psychometric assessment would assist “an assessment of our client’s capacity for employment”, which assumes that capacity for employment was in issue.

41. Although there was no evidence on the question of the “practice effect” and the need for a period of 12 months between psychometric testing, on the basis of the agreement of the parties in this regard I accept that if the testing proceeds and a report is prepared for the respondent, the applicant may consider that responsive evidence is necessary. If so, that would lead to a delay of at least 12 months, in order for that testing to occur. However, as the steps that might ultimately be taken is a matter of speculation, I have not placed much weight on this consideration.

42. Ultimately, having regard to the matters I have referred to above, the respondent’s application for an order under r 23.4 of the UCPR, requiring the applicant to submit to an examination by Dr McMahon for psychometric testing, should be dismissed.

Conclusion

51. The primary judge’s orders of 15 December 2022 included the following:

“2.  Grant the defendant’s motion filed 21 October 2022.

3.  Order that the plaintiff submit to an examination by Dr John McMahon at XXX, Sydney NSW 2000.

4.  Order that there be a psychiatrist in attendance/supervising the examination for health and safety reasons – said psychiatrist to be provided with copies of the reports by Dr Khan dated 13 December 2022 and Dr Rastogi dated 13 December 2022.

5.  Any report be served with 6 weeks of the examination – or if there be none the defendant inform the plaintiff that none will be served.

6.  The defendant to pay the plaintiff’s costs of the motion.

7.  The above orders be stayed until the later of (i) the lodging of an appeal against this determination and (ii) the determination of any such appeal.

8.  If (i) no appeal is filed; or (ii) any such appeal is unsuccessful, the plaintiff is to pay the cost of any cancellation of the appointment for examination by Dr John McMahon scheduled for Tuesday, 20 December 2022.”

52. The applicant submitted that each of these orders should be set aside apart from Order 6, which related to the costs of the motion and should not be disturbed. I accept that submission. The respondent accepted that the costs of the appeal should follow the event.

53. Accordingly I propose the following orders:

1. Pursuant to rule 51.10 of the Uniform Civil Procedure Rules 2005 (NSW), grant an extension of time to the applicant to file the Summons Seeking Leave to Appeal dated 10 February 2023.

2. Grant leave to appeal.

3. Dispense with the requirement for the applicant to file and serve a notice of appeal in accordance with the draft notice of appeal.

4. Appeal allowed.

5. Set aside each of orders 2, 3, 4, 5, 7 and 8 of Gibb DCJ dated 15 December 2022 and, in lieu thereof, order that the respondent’s notice of motion filed 21 October 2022 be dismissed.

6. The respondent is to pay the applicant’s costs of the appeal.

54. KIRK JA: I agree with Mitchelmore JA.

55. SIMPSON AJA: I agree with Mitchelmore JA.

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Decision last updated: 27 June 2023