Cranston v Kiernan
[2017] WASCA 100
•23 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CRANSTON -v- KIERNAN [2017] WASCA 100
CORAM: BUSS P
MURPHY JA
MITCHELL JA
HEARD: 12 APRIL 2017
DELIVERED : 12 APRIL 2017
PUBLISHED : 23 JUNE 2017
FILE NO/S: CACV 60 of 2016
BETWEEN: JOHN WINDSOR CRANSTON
Appellant
AND
LAURENCE JAMES KIERNAN
First RespondentSARAH ELIZABETH KIERNAN
Second RespondentEVAN ALEXANDER GEORGE CRANSTON and ROBYN RUTH PURCELL as Executors of the Will of FRANCES ELIZABETH ANNE CRANSTON
Third RespondentPERTH COLLEGE ANGLICAN GIRLS SCHOOL
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :KIERNAN -v- CRANSTON & PURCELL [2016] WASC 183
File No :CIV 1385 of 2015
Catchwords:
Practice and procedure - Interlocutory applications in claim for adequate provision under s 6 of the Family Provision Act 1972 (WA) - Appeal against decision dismissing applications by the defendant for medical examination of plaintiff and for discovery - Appeal allowed in part - Master erred in dismissing the defendant's application for medical examination of one of the plaintiffs pursuant to O 28 r 1 of the Rules of the Supreme Court 1971 (WA) where claim for adequate provision made in the context of plaintiff's alleged brain injury and consequential inability to work - In the interests of justice for the plaintiff to be medically examined - Master did not err in dismissing the defendant's application for discovery of documents
Legislation:
Rules of the Supreme Court 1971 (WA), O 28 r 1
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant: Mr R Nash
First Respondent : Ms W Gillan
Second Respondent : Ms W Gillan
Third Respondent : No appearance
Fourth Respondent : No appearance
Solicitors:
Appellant: Lawfield Legal Practice
First Respondent : Kershaw Legal Solicitors
Second Respondent : Kershaw Legal Solicitors
Third Respondent : No appearance
Fourth Respondent : No appearance
Case(s) referred to in judgment(s):
Angliss v Urquhart [2001] NSWCA 441
Crofts v State of Queensland [2001] QSC 220
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101
Kiernan v Cranston & Purcell [2016] WASC 183
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Prescott v Bulldog Tools Ltd [1981] 3 All ER 869
Wilson v Metaxas [1989] WAR 285
REASONS OF THE COURT: This is an appeal from a decision of Master Sanderson in which the learned master dismissed, in effect, two interlocutory applications brought by the appellant against the first and second respondents: Kiernan v Cranston & Purcell[1] (primary decision). Leave is required. The third and fourth respondents did not take part in the appeal.
[1] Kiernan v Cranston & Purcell [2016] WASC 183.
The primary proceedings concern a claim by the first and second respondents (Mr Kiernan and Ms Kiernan, who are brother and sister) for an order for provision under the Family Provision Act 1972 (WA) in respect of their late mother's (Frances Cranston's) estate, valued at $5 million. Neither Mr Kiernan nor Ms Kiernan was provided for in their mother's will. Relevantly, for present purposes, Mr Kiernan filed evidence in support of his claim for provision, to the effect that he had suffered a brain injury in 2010, and that a consultant psychiatrist, Dr Roberts, had concluded that he had no prospect whatsoever of being fit to return to work for the rest of his life.[2]
[2] Primary decision [6] - [7].
In this context, the appellant (the brother of the deceased and a substantial beneficiary under the deceased's will), brought effectively two applications. The first was for orders to the effect that pursuant to O 28 r 1(2) of the Rules of the Supreme Court 1971 (WA) (Rules), Mr Kiernan submit himself to medical examination (medical examination application). The second was for the discovery of certain business and financial documents (discovery application).
Master Sanderson dismissed both applications.
Following argument on the appeal, we granted leave to appeal and allowed the appeal in relation to the master's dismissal of the medical examination application. We refused leave and dismissed the appeal in relation to the discovery application. We made orders in the terms set out in the schedule to these reasons and said that we would provide reasons later. These are our reasons.
Background
Frances Cranston died in April 2014 at the age of 64. She was unmarried and lived alone.[3] She had previously been married to Michael Kiernan, although that marriage had ceased in 2001, with Family Court proceedings settled on 2 February 2004.[4] She had two children from the marriage, namely Mr Kiernan and Ms Kiernan. Michael Kiernan was made bankrupt in November 2013.[5]
[3] GB 574.
[4] GB 556 ‑ 557.
[5] GB 9.
As noted above, neither Mr Kiernan nor Ms Kiernan was provided for in Frances Cranston's will. Paragraph 2 of her will provided:[6]
In this Will I have consciously made no provision for my children LAURENCE JAMES KIERNAN and SARAH ELIZABETH MACREDIE [Ms Kiernan], and their children because I am satisfied that they have or will be provided for in the future from their own respective resources and inheritances and expectations.
[6] GB 8 - 9.
On 18 March 2015, Mr Kiernan and Ms Kiernan filed an originating summons seeking an order that adequate provision be made from Frances Cranston's estate pursuant to s 6 of the Family Provisions Act. Mr Kiernan filed two affidavits in support of the application, sworn on 10 February 2015 and 30 July 2015 respectively.[7] Ms Kiernan also filed two affidavits sworn on 13 March 2015 and 30 July 2015.[8] Mr Kiernan also filed an affidavit of Dr Malcolm George Roberts, a consultant psychiatrist, sworn on 9 October 2015.[9]
[7] See GB 3, GB 28.
[8] See GB 22, GB 31.
[9] See GB 34.
Mr Kiernan's affidavits include evidence to the following effect. As at 10 February 2015, he was 41 years old, married, and had four children aged between 4 and 10 years. He was the sole proprietor of 'Cavan Capital', which he commenced in or about August 2014. He earned a net income for the year ended 30 June 2013 of $26,654. As at 10 February 2015, he recorded his net financial position as approximately $330,000. He was also a director in a company called Crawley Investments Pty Ltd, and a 50% shareholder of that company. He also owns 6,000,000 shares in Imperial Resources Pty Ltd. He says that these shares have no value.
Mr Kiernan also deposed to the following in his affidavit sworn 10 February 2015:
23.In or about November 2010 I became very ill with a blood infection which caused pneumonia. I was admitted to Margaret River Hospital, taken by ambulance to Bunbury Hospital and was then flown by the Royal Flying Doctor Service to Royal Perth Hospital. I was in an induced coma for 10 days during which time my mother sat with me every night when my father was not there.
24.When I came out of the intensive care unit at Royal Perth I was transferred by ambulance to St John of God Hospital for my initial recovery period. My mother visited me there on several occasions.
25.The trauma, coma and the medication I was given during my illness caused brain injury and my character changed. I was prone to erratic behaviour and was subsequently diagnosed with frontal lobe syndrome.
26.I suffered from depression and for 3 years after my illness was unable to work full time and I am only working part time at this stage.
Dr Roberts's affidavit of 9 October 2015 annexed a report he had prepared at the request of Mr Kiernan, dated 3 September 2015. According to the report, Mr Kiernan has been in the clinical care of Dr Roberts since 18 March 2011. Mr Kiernan's diagnosis is said to be 'permanent brain damage from Ischemia (lack of oxygen) to his brain which occurred when he was suffering from a life threatening Pneumonia in October 2011'.[10] Dr Roberts said that Mr Kiernan has an established 'frontal lobe syndrome' arising from permanent brain tissue loss, and has 'suffered from a secondary Major Depressive Disorder, severe, without psychotic features'.[11] According to the report, there is 'no prospect whatsoever for Mr Kiernan to recover from his brain injury and to be fit to return to work for the rest of his life'.[12]
[10] GB 37.
[11] GB 37.
[12] GB 38.
In late 2015/early 2016, the appellant gave notice to Mr Kiernan requiring that he submit himself for examination and assessment by Dr Terace.[13] Dr Terace is a psychiatrist. Mr Kiernan objected to undergoing medical examination.[14]
[13] GB 467 ‑ 469, 472 ‑ 473.
[14] GB 474 ‑ 475.
The applications to the master
The medical examination application and discovery application were made by letters to the Case Management Registrar dated 29 February 2016 and 4 May 2016.[15]
[15] Primary decision [2].
The appellant relied on an affidavit by his solicitor sworn 29 February 2016, annexing various documents and correspondence concerning Mr Kiernan's financial activities and position. The master, in effect, accepted that this evidence disclosed the following matters:[16]
[16] Primary decision [10].
a.That on 2 April 2015 [Mr Kiernan] was appointed as the sole director of Leprechaun Holdings Pty Ltd ('Leprechaun') (which is apparently the trustee of the Families Trust and is said to hold no assets in its own right);
b.As at 3 June 2015, Leprechaun held 33.8% of the issued capital in Gulf Manganese Corporation ('Gulf');
c.Gulf was working to develop a ferromanganese smelting and sales business to produce high carbon ferromanganese in West Timor which project ('Project') is to be owned and operated by Gulf's subsidiary 'PT Gulf Mangan Grup' [sic];
d.The Net Present Value of the Project was estimated as at 30 June 2015 to be $US160.6 Million;
e.On 29 May 2015 Leprechaun converted 7,500,000 convertible notes in Gulf with a face value of 3c each (apparently to dear a debt owing by Gulf to Leprechaun of $225,000) [sic];
f.Leprechaun had paid on behalf of Gulf operating expenses of $28,804 in 2014/15 and $138,126 in 2013/14;
g.According to an ASX announcement by Gulf on 12 March 2013, Gulf acquired shares in Indonesian based Asia Minerals Corporation Ltd from Leprechaun, which Gulf described as a company controlled by 'corporate adviser James Kiernan';
h.[Mr Kiernan] ceased to be a director of Leprechaun on 1 September 2015 (which change was notified to ASIC on 28 January 2016);
1.Bluewater Business Services Pty Ltd ('Bluewater'), a company related to Leprechaun had provided consultancy services to Gulf in 2015 for $150,000 and in 2014, in the sum of $150,000;
j.As at 30 June 2014, Gulf owed 'Mr James Kiernan' $125,000, whereas as at 2015 that liability no longer existed;
k.[Mr Kiernan] was, according to ASICs records, appointed as the sole director and company secretary of Crawley Investments Pty Ltd on 14 November 2012 and remained as such as at 28 May 2015 (meaning he was the sole director of the company throughout the period of the Crawley Action during which time solicitors and senior counsel were engaged by the company);
l.[Mr Kiernan] was, according to ASIC's records, appointed as a director of Austindo Holdings Pty Ltd on 2 April 2015, the sole shareholder of which is Leprechaun;
m.[Mr Kiernan] was, according to ASICs records, appointed as a director of Bluewater Business Services Pty Ltd Holdings Pty Ltd on 2 April 2015, the sole shareholder of which is Austindo Holdings Pty Ltd. The name of the company changed to Bluewater Fiontair Pty Ltd with [Mr Kiernan] resigning as director and Elizabeth Rachel Kiernan (the wife of [Mr Kiernan]) being appointed on 20 January 2016;
n.[Mr Kiernan] was, according to ASIC's records, appointed as the sole director of Imperial Resources Pty Ltd on 2 April 2015, whose major shareholders are [Mr Kiernan] and Crawley Investments Pty Ltd;
o.In about February 2014, [Mr Kiernan] provided strategic advice in relation to the proposed takeover by Brighton Mining Group ('Brighton') of Asia Minerals Corporation Ltd for which he was to receive an agreed strategic advice fee of 50,000,000 shares in BTN and 50,000,000 options;
p.[Mr Kiernan] was party to a loan agreement with Brighton under which he agreed to provide a loan for $150,000 which was owed by Brighton to him. He also agreed that the loan would be satisfied by the issue of 15,000,000 BTN and 15,000,000 BTN options to him;
q.[Mr Kiernan] was also identified as the contact for any person who had any enquiries about Asia Mining Corporation and his address was given 'Mr Laurence James Kiernan of Greenwich Equities Pty Ltd';
r.[Mr Kiernan] has been the sole director, secretary and sole shareholder of Cavan Capital Pty Ltd since 18 December 2014. (footnotes omitted)
The appellant also relied on a number of other affidavits of his solicitor, including an affidavit sworn 4 May 2016, which annexed a report by Dr Terace dated 26 March 2016. In that report, Dr Terace made observations to the following effect:[17]
(a)he was not in a position to provide a reasonable opinion without personally examining Mr Kiernan;
(b)provisionally, the level of commercial and other activities outlined in his letter of instruction (and referred to above) did not appear to be consistent with the views expressed by Dr Roberts or Dr Coxon (a forensic psychologist);
(c)a diagnosis of 'frontal lobe syndrome' is within the expertise of a neurologist;
(d)Mr Kiernan's condition also probably requires further review by a clinical neuropsychologist; and
(e)a psychiatric opinion alone would be insufficient to answer questions concerning Mr Kiernan's capacity for work.
[17] GB 586 - 589.
Primary decision
Master Sanderson dismissed both applications.
The master accepted, as noted earlier, that the appellant's evidence disclosed the matters and activities referred to in [14] above. The master also made the following finding:[18]
Clearly [these matters] cast doubt on the veracity of [Mr Kiernan's] claim he is prevented from working.
[18] Primary decision [11].
The master also made reference to Practice Direction 9.2.2 of the Consolidated Practice Directions and quoted paragraph 1 in the following terms:[19]
1.This Practice Direction sets out procedures to ensure that applications pursuant to the Family Provision Act 1972 (WA) (the Act) proceed expeditiously and cost effectively.
[19] Primary decision [4].
He said that it is most unusual, and perhaps even unprecedented, for an application to be made in a Family Provision Act matter requiring a party to submit himself to medical examination pursuant to O 28 r 1(2) of the Rules, and that it would have to be an exceptional case for such an order to be made.[20]
[20] Primary decision [6].
The master concluded that this was not an appropriate course to take in the present circumstances. He said that it is for Mr and Ms Kiernan to make out their case, but that this did not require Mr Kiernan to establish that he does in fact suffer from a specific injury that prevents him from working. In this regard, while the master recognised that a limitation on Mr Kiernan's cognitive function may well be a relevant consideration, he said that this is not a case like a personal injuries claim, where it is for the plaintiff to establish on the balance of probabilities that he has a particular medical condition, and where as a consequence of that condition damages flow.[21]
[21] Primary decision [9].
The master made similar observations with respect to the discovery application[22] and concluded:[23]
[T]o order discovery - and extensive discovery - would not be in the interest of justice and is not necessary for the proper resolution of the … claim [by Mr and Ms Kiernan].
[22] Primary decision [12].
[23] Primary decision [13].
Grounds of appeal and notice of contention
Grounds of appeal
There are two grounds of appeal, one dealing with the medical examination application and the other dealing with the discovery application.
The medical examination ground
By ground 1, the appellant alleges, in effect, that the master acted on wrong principle or, alternatively, did not have regard to relevant and material considerations.
In his written submissions, the appellant contended, with reference to case law in other jurisdictions,[24] that the master did not apply the correct test, namely:
(a)assess whether the request of the [applicant] is reasonable in light of the information and advice received from his expert;
(b)assess whether the [respondent's] refusal was reasonable;
(c)if both are reasonable, then balance the [respondent's] right to personal liberty against the [applicant's] right to defend the litigation, one right not being considered more important than the other;
(d)examine objectively the weight of the reasonableness of the [applicant's] request against the weight of the [respondent's] objection and balance one against the other to ensure a just determination of the cause.
[24] Appellant's written submissions, par 22.
In this regard, the appellant referred to Prescott v Bulldog Tools Ltd;[25] Crofts v State of Queensland[26] and Angliss v Urquhart.[27]
[25] Prescott v Bulldog Tools Ltd [1981] 3 All ER 869.
[26] Crofts v State of Queensland [2001] QSC 220.
[27] Angliss v Urquhart [2001] NSWCA 441.
In the particulars to ground 1, the appellant contended that the master's exercise of discretion miscarried. This is because by refusing the application for further medical examination of Mr Kiernan, the master left unchallenged the medical evidence adduced by Mr Kiernan from Dr Roberts to the effect that Mr Kiernan was unfit for work and never would become fit for work. He also contended that the appellant was deprived of the opportunity of being able to adduce expert medical evidence rebutting or challenging the expert opinion of Dr Roberts.
The appellant further contended that the master placed too much emphasis and weight on the proposition that there is a need to limit the scope of evidence in Family Provision Act cases. It is said that, in doing so, the master overlooked or failed to have proper regard to the fact that the estate in this case was substantial, and that Dr Roberts's opinion as to Mr Kiernan's incapacity would likely result in a substantial diminution of the appellant's entitlement as a beneficiary under the deceased's will.
The discovery application ground
The second ground of appeal is that the master erred in law in refusing the appellant's application for discovery of all documents within the possession, custody or control of Mr and Ms Kiernan that fall within the following specified categories:
(a)All financial reports, financial statements, accounting records and bank statements of Leprechaun Holdings Pty Ltd in its own right and as trustee of the Families Trust.
(b)All financial reports, financial statements, accounting records and bank statements of the Families Trust, other than those that fall within category (a) above.
(c)All deeds and any other documents under which the Families Trust is constituted or the terms of it have been varied.
(d)As to Mr Kiernan only:
(i)all bank statements, applications for finance, redraw requests and loan offer letters relating to the Westpac facilities secured over the property at 131 Stoner Road, Bramley; and
(ii)all documents relating to or concerning the employment and appointment of Mr Kiernan as a director of Greenwich Equities and the termination of Mr Kiernan's employment with Greenwich Equities.
The appellant alleges that the master erred in the exercise of his discretion by taking a 'blanket' approach to the appellant's application for discovery. It is said that as a result the master failed to consider separately each class of documents in respect of which discovery was sought and whether it was in the interests of justice that an order for discovery be made in respect of documents in each class. It is also said that the master failed to consider that where there is a legitimate forensic purpose, then the court may and should make an order for discovery, and also failed to consider whether an order for discovery could be appropriately tailored in this case to meet the objectives of a just, timely and efficient determination of the litigation.
It may be observed, at this point, that the categories of documents sought in the appeal are a small subset of the categories of documents sought in the application before the master.
The first and second respondents' arguments in opposition and their amended notice of contention
Counsel for Mr Kiernan and Ms Kiernan contended, in effect, that there was no reasonable basis for the orders sought before the master. Counsel advanced, on more than one occasion, the proposition that:[28]
Mr Kiernan instructs me, and his view is that he wants to return to work and he hopes to be able to do so, so he doesn't - he actually doesn't put his case on the basis that he will never be able to return to work.
[28] Appeal ts 15; see also appeal ts 17, 22.
Counsel for Mr Kiernan and Ms Kiernan also contended, in effect, that the matters raised in the affidavit sworn by the appellant's solicitor (see [14] above) did not provide any basis for an inference that Mr Kiernan had been involved in any corporate or business activities which might arguably be inconsistent with Dr Roberts's medical opinion that he was unable to work.[29]
[29] Appeal ts 18, 25 - 28.
Counsel for Mr Kiernan and Ms Kiernan also submitted that Mr Kiernan had already been examined on three occasions by a neuropsychologist and that he had been separately examined on at least 10 occasions by Dr Roberts, who is his treating doctor.[30] In this context it is said, in effect, that a firm diagnosis has been made, and that Dr Terace's report merely involves 'speculation' that Dr Roberts's opinion may be wrong.[31] Counsel emphasised that the appellant did not only seek orders that Mr Kiernan see Dr Terace, but also that he see a neurologist and neuropsychologist. Counsel said that Mr Kiernan lives in Margaret River, and that the orders involved 'a whole process and quite a lengthy process and coercive process'.[32]
[30] Appeal ts 17 - 18, 21 - 22.
[31] Appeal ts 21.
[32] Appeal ts 20.
By amended notice of contention, Mr and Ms Kiernan contended that the master's decision in relation to the medical examination application should be upheld on the basis that, on a correct application of the principles, the application would have been refused because it was not unreasonable for Mr Kiernan to refuse to be examined when there was no evidence that could call into question the opinion of Dr Roberts; the medical condition of Mr Kiernan was not of central relevance to the proceedings; and the extent of any examination required was too great an imposition on his rights.
The arguments advanced in support of the amended notice of contention covered, in effect, the same territory as the arguments advanced in opposition to the appeal. Counsel for Mr Kiernan and Ms Kiernan also contended that the judge's finding of fact that the information contained in the affidavit sworn by the appellant's solicitor 'cast doubt on the veracity of [Mr Kiernan's] claim he is prevented from working',[33] was challenged by the amended notice of contention.[34]
[33] Primary decision [11].
[34] Appeal ts 24 - 25.
In relation to the discovery application, it was contended that the master's decision should be upheld on the basis that the application did not comply with the practice directions; as a matter of policy there is usually no discovery in matters of this type, and any discernible legitimate forensic purpose for the discovery sought is insufficient to displace the usual position; the application is disproportionate and still too widely drafted; and the application in some respects requires the discovery of documents from a non‑party.
Legislative provisions
The medical examination application was made pursuant to O 28 r 1 of the Rules, which provides, relevantly:
(1)Where it becomes material in any cause or matter before the Court to consider the question of the physical or mental condition of any party, any opposing party may serve on such first‑mentioned party a notice to submit himself for examination at a specified time and place by a medical practitioner provided and paid by the party requiring the examination. At any such examination a medical adviser chosen by the party to be examined shall be entitled to be present if the party so desires.
(2A)Where the party objects to complying with the notice, or in default of agreement as to the time and place of the examination, or if any matter shall arise in relation to such examination, either party may apply to the Court for an order as to whether or not the objecting party shall submit himself for examination, or as to when and where such examination may be made, or as to any other matters to facilitate the examination.
Section 6 of the Family Provision Act provides, relevantly:
(1)If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
Disposition
The medical examination application
The appellant's contention that under O 28 r 1 of the Rules the court, in effect, must apply the 'test' outlined in [24] above, is not correct. The discretion under O 28 r 1 is not confined in that way. Rather, it is to be exercised in the interests of justice, having regard to the evident subject matter, scope and purpose of the power.[35] Whilst the matters referred to in [24] above would ordinarily be taken into account in the exercise of discretion, they do not confine the scope of the discretion under O 28 r 1.
[35] cf Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
The master nevertheless erred, with respect, in dismissing the medical examination application. Although Mr Kiernan is not in the position of a plaintiff in a personal injuries case, he is nevertheless a litigant utilising the process of the court in order to seek to obtain a sum of money from a substantial estate when his claim, if successful, would inevitably interfere with the enjoyment of the existing rights that the appellant has under the deceased's will.
The master found as a fact that the matters referred to in [14] above cast doubt on the veracity of Mr Kiernan's claim that he is prevented from working.[36] Although counsel for Mr Kiernan and Ms Kiernan said that that finding was challenged in the amended notice of contention and elsewhere in the respondents' answer, it was not. In any event, the finding was plainly open to the master.
[36] Primary decision [11].
The litigation will have its focus on whether, in the words of s 6 of the Family Provision Act, there has been 'adequate provision from [the] estate for the proper maintenance, support, education or advancement in life' of, relevantly, Mr Kiernan. A significant factor, albeit not necessarily a determinative one, in the resolution of the dispute is likely to be Mr Kiernan's contention that he has a brain injury and is unable to work for the rest of his life. Those are matters for expert opinion. There could be no proper investigation of those issues if the appellant was denied the opportunity to obtain his own expert evidence in respect of them. The estate is a substantial one, and it could not be said that the ordinarily legitimate concern not to deplete the estate with the costs of unnecessary interlocutory applications would extend to precluding an order for appropriate medical examinations in the circumstances of this particular case.
Also, it is no answer to say that the discretion should not be exercised because the appellant's counsel may, in any event, cross‑examine Mr Kiernan and Dr Roberts. That is because, in any fair trial of the issues, such a cross‑examination would proceed on the basis that the appellant's counsel had expert evidence available to him or her to conduct the cross‑examination. Also, although the appellant bears no onus of proof, the resolution of the claim may involve consideration of questions as to the degree of any incapacity that Mr Kiernan may have. The appellant would likely not be in a position to invite the court to make any specific findings in that regard, in the absence of his own expert evidence. Further, the submission by counsel for Mr Kiernan and Ms Kiernan that Mr Kiernan does not 'put his case on the basis that he will never be able to return to work' is flatly contradicted by the evidence that he has filed for the purpose of the primary proceedings, and on which his counsel accepts that he intends to rely.[37]
[37] Appeal ts 15, 22.
Of course, if Mr Kiernan were medically examined and the conclusions reached by Dr Roberts were confirmed, it would ordinarily be expected that the medical condition of Mr Kiernan would be agreed, or at least not in dispute, thereby reducing the likely scope and duration of any trial. Alternatively, in that event, the prospects of settlement may be enhanced.
Either way, it is plainly in the interests of justice in the particular circumstances of this case that Mr Kiernan be medically examined. The master's decision was unreasonable or plainly unjust, and thereby revealed appellable error: House v The King.[38]
[38] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
The amended notice of contention and the arguments advanced by counsel for Mr Kiernan and Ms Kiernan do not assist them in defending the decision of the master. The contention that any further medical examinations are unnecessary because Mr Kiernan has already been examined by Dr Roberts and a neuropsychologist merely begs the question of whether it is in the interests of justice, in the particular circumstances of this case, for the appellant to have the opportunity to test the medical opinions expressed by his treating doctors for the purposes of these proceedings. Also, there is no, or no cogent, evidence that it will be of any particular hardship for Mr Kiernan to attend Perth for medical examinations. Dr Roberts, his treating psychiatrist, gives his address as West Perth. Also, Mr Kiernan is not an old man whose health might be jeopardised if forced to attend further medical examinations.[39]
[39] cf Angliss [14], [21].
Further, the master's decision, if left unreversed, will be productive of substantial injustice. That is because there is a real risk that, if the decision stands, there will not be a fair trial of the issues at first instance. The trial is some time away, and an order for medical examinations will not cause any material interference in the orderly disposition of the matter. It is one of those rare cases where it is appropriate for an appellate court to intervene in the exercise of discretion on a point of practice and procedure.[40]
[40] See, generally, Wilson v Metaxas [1989] WAR 285, 294; Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 [5] ‑ [7].
For these reasons, we granted leave to appeal and allowed the appeal in relation to the dismissal of the application for an order for the medical examination of Mr Kiernan.
The discovery application
The appeal against the dismissal of the discovery application was dismissed for essentially two reasons. First, there was no error by the master in not ordering discovery of the subset of documents sought in the appeal, because the master was not asked to order discovery with respect to those limited classes. The master had to deal with the application before him. It involved a wide ranging, and as the master correctly observed 'extensive', application for discovery of documents. Many categories were unconfined by reference to periods of time. It was not incumbent on the master to order limited discovery in a manner not sought by the appellant. Secondly, there is no reason, on the evidence before this court, to suppose that the documents now sought may not be the subject of subpoena (subject to any questions of oppression). There is no injustice if the master's decision is left unreversed. The appeal against the dismissal of the discovery application falls squarely within the principle that a tight rein must be kept on appeals from the exercise of discretion on a point of practice or procedure.[41]
[41] Huntingdale Village [5] - [7].
For these reasons, we refused the application for leave to appeal against the dismissal of the discovery application, and we dismissed the appeal in that regard.
Schedule
1.Leave to appeal in respect of ground 1 be granted and leave to appeal in respect of ground 2 be refused.
2.The appeal be allowed in respect of ground 1 and dismissed in respect of ground 2.
3.The orders of Master Sanderson made on 17 June 2016 be varied so as to read:
1.Orders 3 and 4 be dismissed.
2.Order 5 be adjourned to a date to be fixed.
3.Pursuant to Order 28 Rule 1 of the Rules of the Supreme Court 1971 (WA), the first plaintiff shall submit himself for review and examination (on such occasions as the reviewing doctor considers necessary) in respect of the matters the subject of the observations and opinions expressed by Dr Malcolm George Roberts in his affidavit sworn 9 October 2015 in this action by the following medical practitioners:
(a)by a neuropsychologist, being one of Dr Michael Hunt, Dr Mandy Vidovich or Professor Jonathon Foster, including undergoing any tests or scans which the reviewing doctor considers necessary;
(b)by a neurologist, being one of Dr Sasson Gubbay, Associate Professor David Blacker or Dr Peter Silbert, including undergoing any tests or scans which the reviewing doctor considers necessary; and
(c)by a consultant psychiatrist, Dr Lawrence Terace, including undergoing any tests or scans which the reviewing doctor considers necessary;
and on such review and examination, the first plaintiff bring with him and make available to the reviewing doctor such existing MRI or CT scans as he has in his possession, custody or power.
4.The first plaintiff and the second defendant be at liberty to apply to a judge of the general division or the Master on seven days' notice for any further orders or directions required to give effect to order 3 above, and to facilitate the review and examination of the first plaintiff.
5.Each party bear its own costs of the application.
4.Each party bear its own costs of the appeal, the application for leave to appeal and the notice of contention.
2
6
1