FEDERAL COURT OF AUSTRALIA
Hastwell v Kott Gunning [2021] FCAFC 70
Appeal from: Application for leave to appeal: Hastwell v Kott Gunning (No 5) [2020] FCA 621 File number: WAD 126 of 2020 Judgment of: MCKERRACHER, KERR AND CHARLESWORTH JJ Date of judgment: 13 May 2021 Catchwords: HUMAN RIGHTS – claim of sexual discrimination and disability discrimination by employer – where applicant claims loss and damage caused by exacerbation of anxiety and depression – where applicant refuses to undergo a psychiatric examination to allow the respondent to adduce expert evidence – where primary judge ordered a permanent stay of proceedings consequent upon the applicant’s refusal – whether the order for a permanent stay was a just determination of the proceedings
HUMAN RIGHTS – appeal from orders for a permanent stay of proceedings – whether orders are interlocutory in nature – whether leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – whether a permanent stay consequent upon a refusal to be medically examined is an interlocutory judgment that affects the liberty of an individual – consideration of the principles in Talacko v Talacko (2010) 183 FCR 297
EVIDENCE – admission into evidence of extracts of a psychiatric report contained in a pleading filed in separate proceedings brought by the applicant in a different court – where the respondent obtained the pleading by making an access request to the other court – where the respondent adduced extracts of the psychiatric report to demonstrate a proper basis for seeking its own medical examination of the applicant by its nominated expert – whether the primary judge misconstrued various provisions of the Evidence Act 1995 (Cth) in allowing the extracts to be adduced for this limited purpose only
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO
Evidence Act 1995 (Cth) ss 75, 76(1), 79, 81, 108C, 108C(1)(a), 135, 136, 138, 192
Federal Court of Australia Act 1976 (Cth) ss 23, 24, 24(1C)(a), 24(1D), 25, 27, 37M(1)
Military Rehabilitation and Compensation Act 2004 (Cth) ss 328, 329
National Disability Insurance Scheme Act 2013 (Cth) ss 26, 26(3)
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 57, 57(2)
Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 66, 66(2)
Veterans’ Entitlement Act 1986 (Cth)
Health Practitioner Regulation National Law 2009 (NSW) ss 145E, 152B, 152B(4), 152C, 152C(4)
Motor Vehicle (Third Party Insurance) Act 1943 (WA) ss 30, 35
Workers Compensation and Injury Management Act 1981 (WA), ss 64, 65, 66 and 72A
Cases cited: Ashby v Commonwealth (No 3) (2012) 206 FCR 444; [2012] FCA 788
Banking Group Ltd (No 3) (1996) 64 FCR 55; [1996] FCA 518
Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1; [2000] FCA 243
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- AGLC
- Hastwell v Kott Gunning [2021] FCAFC 70
- Case
- [2021] FCAFC 70
- Decision Date
CaseChat Overview and Summary
In the case of Hastwell v Kott Gunning, the applicant, Mr Hastwell, pursued claims of sexual discrimination and disability discrimination against his employer, Kott Gunning. The applicant sought damages for loss and damage caused by the exacerbation of his anxiety and depression. However, Mr Hastwell refused to undergo a psychiatric examination to allow Kott Gunning to adduce expert evidence. The primary judge, in response to this refusal, ordered a permanent stay of the proceedings, a decision which Mr Hastwell appealed to the court. The court was tasked with determining whether the order for a permanent stay was a just determination of the proceedings, particularly in light of the applicant's refusal to be medically examined.
The legal issues at the heart of this appeal centred on the appropriate use of interlocutory orders and the need for leave to appeal under section 24(1A) of the Federal Court of Australia Act 1976. Furthermore, the court had to consider whether the primary judge's order for a permanent stay, resulting from the applicant's refusal to be medically examined, constituted an interlocutory judgment that affected the liberty of an individual. The principles outlined in Talacko v Talacko were relevant in this context. Additionally, the court evaluated whether the primary judge had correctly applied the provisions of the Evidence Act 1995 in allowing the admissibility of extracts from a psychiatric report obtained from separate proceedings.
The court found that the primary judge's decision to permanently stay the proceedings due to the applicant's refusal to undergo a psychiatric examination was not an interlocutory judgment that affected the liberty of an individual. Therefore, leave to appeal was not required under section 24(1A) of the Federal Court of Australia Act 1976. The court also upheld the primary judge's decision to allow extracts from the psychiatric report to be admitted for the limited purpose of demonstrating a proper basis for seeking a medical examination of the applicant by Kott Gunning's nominated expert. The court held that the primary judge had not misconstrued the provisions of the Evidence Act 1995 in this regard. Finally, the court dismissed the application for leave to appeal with costs.
1. The application for leave to appeal be dismissed with costs.
The legal issues at the heart of this appeal centred on the appropriate use of interlocutory orders and the need for leave to appeal under section 24(1A) of the Federal Court of Australia Act 1976. Furthermore, the court had to consider whether the primary judge's order for a permanent stay, resulting from the applicant's refusal to be medically examined, constituted an interlocutory judgment that affected the liberty of an individual. The principles outlined in Talacko v Talacko were relevant in this context. Additionally, the court evaluated whether the primary judge had correctly applied the provisions of the Evidence Act 1995 in allowing the admissibility of extracts from a psychiatric report obtained from separate proceedings.
The court found that the primary judge's decision to permanently stay the proceedings due to the applicant's refusal to undergo a psychiatric examination was not an interlocutory judgment that affected the liberty of an individual. Therefore, leave to appeal was not required under section 24(1A) of the Federal Court of Australia Act 1976. The court also upheld the primary judge's decision to allow extracts from the psychiatric report to be admitted for the limited purpose of demonstrating a proper basis for seeking a medical examination of the applicant by Kott Gunning's nominated expert. The court held that the primary judge had not misconstrued the provisions of the Evidence Act 1995 in this regard. Finally, the court dismissed the application for leave to appeal with costs.
1. The application for leave to appeal be dismissed with costs.
Orders
Orders of the court
1. The application for leave to appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
The second proposed ground of appeal for Mr Hastwell is as follows:Ground 2 – Pre-existing anxiety is admitted/no evidence as to pre-existing depression2.It is contended that [the primary judge] erred by finding as fact that “....it is open on the state of the evidence and the pleadings for Kott Gunning to put a case that any anxiety or depression is pre-existing....” at [14] because it has been admitted that [Mr Hastwell’s] anxiety was pre-existing his employment at [Kott Gunning]. There is also no evidence before the court which suggests that [Mr Hastwell] had depression before he commenced employment at [Kott Gunning]. Mr Hastwell’s submissions in support of this ground simply reiterated the content of the ground. The difficulty is that while Mr Hastwell has admitted to pre-existing anxiety, his particulars of loss and damage include “anxiety and depression” and his trial affidavit and medical evidence indicate that he suffers from increased levels of anxiety and depression as a result of the acts and omissions of Kott Gunning and its employees. Kott Gunning contends, correctly, that it, rather than Mr Hastwell, bears the evidentiary burden of demonstrating that Mr Hastwell’s disabilities were due to a pre-existing condition as it contends. Kott Gunning relies upon Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Mr Hastwell takes issue with the applicability of those authorities because, he says, they relate only to permanent personal injury caused by negligence. The authorities should not be regarded as being so confined. There is absolutely no reason or policy for confining them in that way. Clearly the underlying purpose of the onus shifting to a respondent to demonstrate if so asserted, that disabilities were due to a pre-existing condition is just as applicable in the case of a mental condition as it is to a physical condition. As to the second purported distinction, it is unclear whether Mr Hastwell’s claim is based in any part in negligence. There is a heading of negligence in the statement of claim, but no pleading or particulars in support of it. Assuming in his favour that he does not contend negligence, there is no reason to consider that the shifting of the onus to a defending party in the Watts or Purkess sense is confined to cases of negligence. The shift of onus has also long been applied in workplace cases based on the same facts constituting a breach of an employment contract: see for example Simpson v Midalco Pty Ltd, (unreported, Full Court of the Supreme Court, WA, 7 December 1988). There is (hotly contested) evidence to suggest that prior to his employment by Kott Gunning, Mr Hastwell developed a delusional disorder, including paranoid and persecutory beliefs which affected his ability to interpret benign interactions and events. This is a topic to which Mr Hastwell takes great exception and is the subject of a number of grounds dealt with below. This contested evidence, upon which Kott Gunning relies, is Mr Hastwell’s own particularisation of a claim that he filed on 30 November 2018 in the Supreme Court of New South Wales in case number 2018/271285 against the Health Care Complaints Commission (the HCCC proceedings). In that claim, Mr Hastwell set out at [74] of his particulars of claim (which was in evidence in this appeal) a series of findings of Dr Parmegiani, alleging that Dr Parmegiani had no evidence to make diagnoses of delusional disorder and paranoia (HCCC particulars). That claim was directed to a complaint about Dr Parmegiani’s diagnosis. Mr Hastwell made Kott Gunning aware of these assertions in “without prejudice” communications with them. Kott Gunning, or its advisors, then sought the particulars from the Supreme Court of New South Wales and were provided with them.
Decision
Reasons for decision
It is convenient to deal with these proposed grounds together as they both assert (misguidedly) apprehended bias. These grounds are as follows:Ground 11 – Apprehended bias – prejudgment11.It is contended that [the primary judge] in the forming of his decision breached the rules of natural justice on the basis that an apprehension of bias exists because His Honour prejudged the claim based on extracts of Dr Parmegiani’s report. By relying on extracts of an opinion of Dr Parmegiani, His Honour’s decision has not been formed with an impartial mind by focusing on those extracts and Dr Parmegiani qualifications as opposed to the legal and factual issues involved with its admission. A fair minded and informed observer might therefore conclude that His Honour might not have been impartial and therefore failed to bring an independent mind to the decision-making process by prejudging the veracity of [Mr Hastwell’s] claim.Ground 12 –Apprehended bias – failure to bring independent mind to decision-making process with respect to truthfulness12.It is contended that [the primary judge] in the forming of his decision breached the rules of natural justice on the basis of having a preconceived idea about [Mr Hastwell’s] trustworthiness. By relying on extracts of an opinion of Dr Parmegiani His Honour had already formed a view of [Mr Hastwell’s] credibility thereby influencing the decision-making process to have [Mr Hastwell] medically examined and to permanently stay proceedings. The public might therefore entertain a reasonable apprehension that His Honour might not have brought an impartial and unprejudiced mind in forming his judgment in reliance upon extracts of that report, which itself is not in evidence. Instead of addressing the legal issues as to the admissibility of those extracts and the prejudice it might present to [Mr Hastwell] as well as to the proceedings, His Honour formed a view regarding [Mr Hastwell’s] truthfulness, thereby making orders to permanently stay proceedings if consent was not forthcoming by [Mr Hastwell] to being medically examined for that very purpose. In support of these grounds, Mr Hastwell submits:…29.A claim for apprehended bias does not require such strong or clear evidence: The question is “one of possibility (real and not remote), not probability”: Ebner - v- Official Trustee (2000) 205 CLR 337 at 345 per Gleeson, McHugh, Gummow, and Hayne JJ, Callinan J agreeing. Webb-v-R (1994) 181 CLR 41 and Ebner establish that the Australian test is to be framed not in terms of proving (in diminishing severity) actual bias or a “real danger”, “substantial likelihood”, “real likelihood” or “probability” of bias but in terms of proving a “reasonable apprehension” of bias. A court need only be satisfied that a fair minded and informed observer might conclude that the decision-maker might not be impartial or approach the issues with an open mind. “Not only must justice be done; it must also manifestly and undoubtedly be seen to be done.”: R - v- Sussex, ex parte McCarthy (1924) 1 KB 256 as per Lord Hewart CJ.. In [the primary judge’s] judgment he expresses the following, “... Dr Parmegiani appears to have reached conclusions about Mr Hastwell’s psychiatric condition which, if correct, would potentially undermine the credibility of the claims that Mr Hastwell makes in these proceedings.” at [19], or, “ ... it is to show that Kott Gunning have a proper basis to seek to obtain psychiatric evidence going to Mr Hastwell’s credibility.” at [25}, or, “It establishes that Kott Gunning’s position is not based on mere conjecture; a person apparently qualified to reach the opinion apparently expressed.” at [26], or, “ ... the defendants put forward the name of an experienced and well qualified doctor who on the face of it appears unobjectionable .. ... “at [58], or, “ ... what is known about Dr Parmegiani’s report gives Kott Gunning a proper basis to seek psychiatric evidence which may go to Mr Hastwell’s credibility.” at [73].30.It is submitted that a reasonably minded person might conclude that His Honour might not have brought an independent mind, not only with respect to the admission of extracts of Dr Parmegiani’s report but in the entire decision-making process: Huluba -v- Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518 Beazley J at 530 and LVR (WA) Pty Ltd -v- Administartive [sic] Appeals Tribunal (2012) 203 FCR 166 at [5]; Johnson-v-Johnson (2000] HCA 48 at [12] - [18]. Such comments are likely to convey to a reasonable and intelligent lay observer that the impression of bias had been made. This type of apprehended bias was considered by the High Court in Vakauta v Kelly (1989) 167 CLR 568 at page 572-573, Brennan, Deane, Gaudron JJ at [4] - [8]. Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263, at [13] - [19] and applied in Livesey v. New South Wales Bar Association (1983) 151 CLR 288, at pp 293-294 at [5] - [7].
Ratio Decidendi
Legal Principle Established
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