Hastwell v Parmegiani

[2024] NSWCA 55

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hastwell v Parmegiani [2024] NSWCA 55

Hearing dates:

11 March 2024

Date of orders:

14 March 2024

Decision date:

14 March 2024

Before:

Gleeson and Kirk JJA at [1]

Decision:

1. Leave to appeal is granted.

2. The matter is listed for directions before the Registrar of the Court of Appeal on Wednesday 27 March 2024.

Catchwords:

APPEALS — Leave to appeal — Principles governing — Interlocutory decision — Public importance — Novel issues raised

EVIDENCE — Expert Witness — Medicolegal report — Witness Immunity — Relationship to advocates’ immunity — Proper test

Legislation Cited:

Australian Consumer Law (WA), s 60

Fair Trading Act 2010 (WA), s 19

Supreme Court Act 1970 (NSW), s 101(2)(e)

Uniform Civil Procedure Rules 2015 (NSW), rr 7.36, 13.4, 23.4, Sch 7 cl 2

Cases Cited:

Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1

Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1

Hastwell v Kott Gunning (No 5) [2020] FCA 621

Hastwell v Kott Gunning [2021] FCAFC 70

Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398

The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268

Young v Hones [2014] NSWCA 337

Category:

Principal judgment

Parties:

Haydyn Hastwell (Applicant)
Dr Julian Parmegiani (Respondent)

Representation:

Counsel:

Self-Represented (Applicant)
M Windsor SC with A Munro (Respondent)

Solicitors:

Self-Represented (Applicant)
Meridian Lawyers (Respondent)

File Number(s):

2023/298104

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Civil

Citation:

[2023] NSWSC 1016

Date of Decision:

24 August 2024

Before:

Cavanagh J

File Number(s):

2022/190697

JUDGMENT

1. THE COURT: The respondent in this application for leave to appeal is a psychiatrist. On the instructions of a law firm which was then acting for the applicant (Harmers Workplace Lawyers), the respondent examined the applicant in 2016 and produced a medicolegal report. The report was sought in the context of a potential discrimination claim being made against the applicant’s former employer, a firm of solicitors. According to the applicant, Harmers decided to cease acting for the applicant as a result of the respondent’s report. The applicant did subsequently file proceedings in the Federal Court against his former employer, but that claim was stayed on the basis that the applicant refused to subject himself to a medical examination by a psychiatrist chosen by the other side.

2. In proceedings in the Supreme Court the applicant has sought to sue the respondent for negligence, breach of fiduciary duty and contravention of a consumer guarantee with respect to the preparation of the medicolegal report. A range of possible answers to this claim can be imagined. The respondent sought to cut the claim off at the start by bringing an application for summary judgment pursuant to r 13.4 of the Uniform Civil Procedure Rules 2015 (NSW) (UCPR) on the basis of…