Hastwell v Parmegiani

[2023] NSWSC 1016

Supreme Court

New South Wales

Medium Neutral Citation:

Hastwell v Parmegiani [2023] NSWSC 1016

Hearing dates:

8 August 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) Leave is granted to amend the statement of claim.

(2) Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.

(3) The plaintiff is to pay the defendant’s costs.

Catchwords:

NEGLIGENCE — claim against medicolegal expert arising out of content of report – scope of witness immunity – motion to dismiss – bound to fail

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 s 60

Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 8(1)(c), 8(1)(d), 8(1)(e)

Federal Court Rules 2011 (Cth)

Uniform Civil Procedure Rules 2015 (NSW), rr 13.4, 14.28

Cases Cited:

A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713

AB(A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

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

Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41

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

Darker & Ors v Chief Constable of the WestMidlands Police [2001] 1 AC 435

Donnellan v The Public Trustee (No 2) [2010] WASC 214

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

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

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

Jovanovic & Anor v Woods & Ors(No 3) [2001] TASSC 96

R v Beydoun (1990) 22 NSWLR 256

Sovereign Motor Inns v Howarth Asia Pacific [2003] NSWSC 1120

Spellson v George (1992) 26 NSWLR 666; [1992] NSWCA 254

Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Symonds v Vass (2009) 257 ALR 689; [2009] NSWCA 139

Young v Hones [2014] NSWCA 337

Category:

Procedural rulings

Parties:

Mr Haydyn Hastwell (Plaintiff)
Dr Julian Parmegiani (Defendant)

Representation:

Counsel:
J Louis Polese (Plaintiff)
A Munro (Defendant)

Solicitors:
Blackstone Legal (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s):

2022/190697

Publication restriction:

Nil

JUDGMENT

1. The plaintiff pursues proceedings against the defendant, a psychiatrist, who examined the plaintiff in 2016 on the instructions of his then solicitors. He sues the defendant in negligence, breach of fiduciary duty and for breaches of the consumer guarantees as set out in Sch 2, s 60 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law” or “ACL”).

2. On 7 June 2016, the plaintiff's former solicitors, Harmers Workplace Lawyers (“Harmers”), instructed the defendant to provide a medicolegal report (“the report”) with respect to an employment claim being pursued against the plaintiff’s former employer, a law firm.

3. The plaintiff alleges that the report was false, misleading, incorrect, vague and not fit for purpose. The plaintiff asserts that the report was so poor and the content so wrong that it resulted in his former solicitors ceasing to act for him and abandoning his claim against his former employer in the Australian Human Rights Commission (“AHRC”).

4. He seeks damages from the defendant on the basis that the defendant's conduct has caused him significant psychiatric injury and caused him to suffer significant losses including loss of professional reputation, loss of income and significant sums on account of out-of-pocket expenses. He also claims general and exemplary damages.

5. Proceedings were commenced by the plaintiff on 24 June 2022. At the time, the plaintiff was not legally represented. The plaintiff has now retained solicitors to conduct the proceedings on his behalf.

The Motions

6. The matter came before the Court on 8 August 2023 for the hearing of two motions, being:

1. a motion filed by the plaintiff on 2 May 2023 seeking leave to file an amended statement of claim; and

2. a motion filed by the defendant on 12 December 2022 seeking orders pursuant to r 13.4 of the Uniform Civil Procedure Rules 2015 (NSW) (“UCPR”) that the proceedings be dismissed or, in the alternative, that proceedings be struck out pursuant to r 14.28 of the UCPR.

7. On the hearing of the motions, Mr Polese appeared for the plaintiff and Mr Munro appeared for the defendant. The parties provided helpful written and oral submissions.

The amended statement of claim

8. The plaintiff seeks leave to file an amended statement of claim in a form that was provided to the defendant shortly before the hearing. After some discussion and exchanges, it emerged that the defendant did not oppose the filing of the amended statement of claim, subject to objections relating to a small number of paragraphs. The defendant’s objections to those paragraphs were that the content of the paragraphs did not include any pleading of material facts and appeared to be submissions.

9. I agree with the defendant’s submissions on this issue. However, the paragraphs the subject of objection are so limited and the matters are of so little consequence that I indicated to the parties that, subject to the determination of the defendant's motion, I would grant leave to the plaintiff to file the amended statement of claim. The defendant’s motion for dismissal thus proceeded on the basis of the proposed amended statement of claim.

The defendant’s motion

10. The defendant seeks to have the proceedings dismissed on the basis that they constitute an abuse of process or disclose no reasonable cause of action. Alternatively, the defendant seeks that the proceedings be struck out (which might allow the plaintiff to replead).

11. The point raised by the defendant is not a pleading point. The plaintiff articulates the case he wishes to pursue with sufficient clarity and detail that the defendant should be aware of the case that it is required to meet. That is not say that I am making any determination of whether there is merit in the statement of claim or whether there would be no basis for challenging any particular section of the statement of claim.

12. The real point of the defendant's motion is to obtain an order that the proceedings be dismissed because they could not possibly succeed, having regard to the plaintiff’s pleaded case.

13. The sole ground advanced by the defendant in support of its application for dismissal is that the defendant has the benefit of the principle of witness immunity, such that, even if the allegations in the statement of claim are correct, he cannot succeed.

14. The plaintiff relies on two affidavits affirmed by him on 21 January 2023 and 27 April 2023. The defendant relies on two affidavits of his solicitor, Ms Nevena Brown, affirmed 16 December 2022 and 26 May 2023. I treated the affidavits and exhibits thereto as evidence in both applications.

The nature of the defendant's application

15. Rule 13.4 of the UCPR is in the following terms:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

16. The defendant must establish either that the proceedings are frivolous or vexatious, disclose no reasonable cause of action or are an abuse of process. There is some overlap in each of the three criteria. For example, proceedings might be described as frivolous or an abuse of process if they have no prospect of success.

17. The decision to dismiss the proceedings at the interlocutory stage should be exercised rarely and only when the Court is satisfied that the proceedings are untenable or so obviously hopeless that they could have no reasonable prospect of success (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129).

18. Interlocutory applications such as this are generally not the forum for determining disputed questions of fact, unless the dispute may be resolved on the evidence of the application: see Spellson v George (1992) 26 NSWLR 666; [1992] NSWCA 254. Having said that, the Court is not precluded from resolving any disputed issues of fact on an application such as this if it is proper and appropriate to do so.

19. In some cases, an application may be made on the pleadings without the applicant relying on any evidence. In those circumstances, the Court should proceed on the basis of the truthfulness of the matters of fact contained in the statement of claim. In this matter, there is extensive evidence, including the plaintiff’s affidavits, which incorporate relevant documents. This is not an application made just on the pleadings, albeit the plaintiff submits that there are disputed issues of fact and there will be further evidence on those disputed issues of fact.

20. Further, the existence of authority which might be contrary to the case the plaintiff wishes to pursue does not mandate the dismissal of the proceedings. This was explained in the context of a similar provision by the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 per French CJ and Gummow J at [25]:

“Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a ’fanciful’ prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.”

21. This passage may be particularly relevant to the defendant's application because the defendant submits that, on a proper application of the legal principles relating to witness immunity, the plaintiff cannot succeed. The plaintiff disagrees, submitting that, having regard to the decision in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 (“Attwells”) and, in particular, some UK decisions, there is scope to take a more limited approach to witness immunity than the defendant suggests.

Background to the proceedings

22. On 3 September 2013, the plaintiff commenced employment at Kott Gunning Lawyers (“Kott Gunning”) as a solicitor in the insurance division.

23. In December 2014, he stopped work and was certified unfit for employment because of his depression and anxiety. His employment with Kott Gunning was terminated in April 2015.

24. Prior to the termination of his employment, he instructed Harmers that he experienced bullying, discrimination and harassment during the period that he worked at Kott Gunning. The plaintiff said that, at least in part, the conduct towards him was directed at his sexuality. In an affidavit which the plaintiff prepared for Federal Court proceedings on 9 August 2018, he sets out in detail the conduct of which he complains, the effect of the conduct on him and the response of his former employer.

25. As I understand the position of his former employer, the conduct is denied. It is not necessary for the purposes of this application to further examine the asserted conduct. I am not in this judgment making any findings or comments about the nature, accuracy, or truthfulness of the assertions. For the purposes of this judgment, it is not necessary that I do so.

26. During the period that he remained employed at Kott Gunning the plaintiff wrote a letter to his employer, dated 10 December 2014, which he described as a formal complaint. Again, the formal complaint makes reference to the matters contained in his affidavits.

27. After receiving a response from the firm, he then instructed Harmers (Sydney office) to act for him. On 18 December 2014 Harmers wrote to Kott Gunning stating that they acted for the plaintiff in relation to “bullying, harassment and discrimination claims against [their] Firm and certain employees of the Firm”.

28. There followed correspondence between Harmers and Kott Gunning relating to the plaintiff’s assertions, his health, his fitness for employment and other matters relating to his claim.

29. On 24 May 2016, Harmers lodged a complaint with the AHRC. The documents comprising the complaint included the standard complaint form and a letter from Harmers setting out the nature of the complaint and the conduct complained of. The complaint included allegations of victimisation and discrimination on the grounds of sexual orientation, disability and breach of contract.

30. Harmers stated that it sought the assistance of the AHRC in resolving the matter, noting that the plaintiff sought compensation in respect of economic loss, general damages, aggravated damages and other matters.

31. On 27 June 2016, Harmers appointed the defendant to “medically assess … and provide [his] expert opinion, by way of written report.” On a number of matters, including the nature and extent of any psychological conditions which the plaintiff was suffering, the cause of such conditions, his fitness for work and specifically whether he had “sufficient mental [capacity] to participate in proceedings at the AHRC and any potential ongoing litigation…”.

32. In the letter of instructions that they provided to the defendant, Harmers instructed the defendant and said, “please further note that, should this matter proceed to hearing, you may be called by Mr Hastwell as an expert witness and be required to give oral evidence in court”.

33. The letter of instructions included the Federal Court Rules 2011 (Cth) and Federal Court Practice Note dealing with expert witnesses. Harmers required that the defendant specify his report complied with the Practice Note.

34. On 29 June 2016, the plaintiff attended an assessment by the defendant. The defendant then provided a medicolegal report dated 29 June 2016. The report is in standard form, addresses the questions asked and contains an acknowledgement in accordance with the Federal Court Expert Witness Code of Conduct.

35. It is the content of this report with which the plaintiff takes issue. The report was never served. According to the plaintiff, the content of the report was the reason that Harmers ceased to act for him prior to any conciliation in the AHRC.

36. Subsequent to the abandonment of the AHRC claim, the plaintiff commenced proceedings in the Federal Court’s Human Rights Division by way of a statement of claim filed on 17 April 2018. The allegations made against his former employer, as the defendant in those proceedings, were the same or similar to the earlier complaint made through Harmers in the AHRC. The plaintiff filed an extensive affidavit in those proceedings.

37. I am in receipt of the following two judgments of the Federal Court: Hastwell v Kott Gunning (No 5) [2020] FCA 621 and Hastwell v Kott Gunning [2021] FCAFC 70. According to Mr Polese, the Federal Court proceedings have been permanently stayed. The stay application was successfully brought by the plaintiff’s former employer, and seemingly arose out of the plaintiff’s refusal to attend a medical examination arranged by his former employer in those proceedings.

38. The plaintiff now pursues these proceedings. As set out in the latest version of the statement of claim, he asserts that the defendant owed him a duty of care and that, in examining and preparing his report, he acted in breach of his duty of care. He also says that the defendant acted in breach of his fiduciary duties and contravened Sch 2, s 60 of the ACL. All of these causes of action relate to what the plaintiff says are falsities and inaccuracies contained in the defendant’s medicolegal report.

39. It is not my function on this application to determine the truth or accuracy of the allegations in the statement of claim. There is significant contest between the parties regarding the plaintiff’s assertions. No doubt an issue will arise on the hearing as to whether the plaintiff’s unfitness for work was caused by the conduct of his former employer (which he has previously asserted) or whether, as he asserts in these proceedings, his unfitness for work arises from the conduct of the defendant.

40. The sole ground for the application and the focus of the submissions of the parties is whether the principle of witness immunity in Australia is such that on any available view of the facts asserted by the plaintiff, the plaintiff’s case is untenable and is bound to fail.

The defendant’s report

41. The defendant was instructed to examine the plaintiff and prepare a report. Harmers provided a brief background of the plaintiff’s claim and the plaintiff’s medical records to the defendant. Harmers then instructed the defendant to answer a series of questions, stating at the end of those questions “please further note that, should this matter proceed to hearing, you may be called by Mr Hastwell as an expert witness and be required to give oral evidence in court”.

42. Harmers specified the defendant’s engagement as an expert in the following terms:

“2.1 We enclose copies of:

(a) Rule 23.13 of the Federal Court Rules 2011 (“Rule”); and

(b) Federal Court Practice Note CM7: Expert witnesses in proceedings in the Federal Court of Australia (“Practice Note”).

2.2 The enclosed Rule and Practice Note must be complied with at all times, including during the consultation with our client and discussions with us about that consultation. The Practice Note will also bind you in the preparation of your written report and the giving of any evidence in Court.”

43. The Federal Court Practice Note in respect of expert witnesses and a copy of Div 23.2, r 23.13 of the Federal Court Rules were enclosed with the letter of instructions provided by Harmers.

44. On 29 June 2016, the defendant provided a 10-page report. The defendant stated that the report was prepared in accordance with the Federal Court Rules and Practice Note. The report sets out the plaintiff’s background, psychiatric history, treatment, forensic history and medical history. The report detailed the defendant’s mental state examination, provided a review of earlier medical reports and answered specific questions as requested by Harmers.

45. The defendant provided a diagnosis with which the plaintiff plainly disagrees. It is not necessary in this judgment that I say more about the content of the report, other than that the defendant suggested that the plaintiff’s symptoms commenced long before his employment and that his condition was likely exacerbated by the way in which his employer responded to his symptoms. The defendant described the plaintiff’s prognosis as poor.

46. There was no further interaction between the plaintiff and the defendant subsequent to the preparation of the report. The report was not served by Harmers prior to Harmers ceasing to act for the plaintiff. The report was not served by the plaintiff in the Federal Court proceedings which he was pursuing, until they were stayed (although there is a reference to the existence of the report in the Federal Court documents).

43. The content of the report is pleaded and particularised in this matter as the grounds for the claim.

The defendant’s submissions

48. The defendant submits that he has an absolute immunity, or core immunity, as an expert witness who was instructed to prepare a medicolegal report for use in litigation.

49. The defendant submits that the immunity protects him from being sued as result of evidence that he gives in proceedings and extends to protect him from being sued in respect of out-of-court conduct, provided that the conduct is sufficiently connected with the proceedings. The immunity operates even if the evidence given by a witness is false or malicious. Further, the principle applies whether or not the evidence is eventually adduced in court. In those circumstances, the proceedings must fail.

The plaintiff’s submissions

50. The plaintiff’s primary position is that:

1. this is a novel case that has not yet been properly decided upon in Australia but has been decided in the United Kingdom. The United Kingdom decision and rationale should or could be followed in these proceedings. The principle of finality of judgments coupled with the unique features of this matter distinguishes this matter from other witness immunity cases;

2. expert witness immunity requires two primary things:

1. a report; and

2. the giving of evidence;

3. the second requirement was not met; and

4. the preparation of the evidence to be given in court should be seen through the prism of the public policy on which it is based. That is the finality of judgements. That issue does not arise in these proceedings as there has been no judgment or evidence given by the defendant.

51. The plaintiff submits witness immunity is not triggered, as the defendant’s report:

1. was for the dominant purpose of providing advice and investigation as to whether, in fact, there could be a claim against the plaintiff’s former employer;

2. was not prepared for court proceedings;

3. was not prepared in contemplation of court proceedings; and

4. was prepared only in support of the AHRC conciliation;

52. The plaintiff’s other primary submission is that there remains untested issues of fact which cannot be determined on this application, such that the Court is not in a position to determine whether the plaintiff’s case is untenable or so hopeless that it should be dismissed at this stage of the proceedings.

Witness immunity

53. In Commonwealth of Australia v Griffiths & Anor (2007) 70 NSWLR 268; [2007] NSWCA 370 (“Griffiths”) at [41]-[43] Beazley JA (as her Honour then was) identified the principles to be applied:

“The principle of immunity from suit was explained by Lord Mansfield in R v Skinner (1772) Lofft 54 at 56; (1772) 98 ER 529 at 530 as follows:

‘… neither party, witness, counsel, the jury, or Judge can be put to answer, civilly or criminally, for words spoken in office.’

The existence of the general immunity is not in dispute. The issue in this case is the reach of its application. There is no doubt that the immunity protects a person from being sued as a result of evidence the person gives in proceedings. There is also no doubt that the immunity extends to protect persons from being sued in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceedings. The swearing of an affidavit is an easily identifiable example: see D’Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1; Ollis v New South Wales Crime Commission [2007] NSWCA 311. The question here is whether it extends to protect a person in respect of acts that are preparatory to trial. That question, in turn, raises the question as to what matters are properly considered as being preparatory to trial, as opposed to being part of the investigative process, or at least that part of the investigative process which is not protected.

The rationale for witness immunity is generally stated as being founded in the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely in an atmosphere avoid of threats of suit from disappointed litigants; and secondly, to avoid multiplicity of actions in which the evidence would be tried over again: see D’Orta-Ekenaike v Victoria Legal Aid at 17-20 [37]-[42]; Meadow v General Medical Council [2007] QB 462 at 476.”

54. It is well established that the defence of witness immunity applies to evidence given by witnesses in court. This is based on the principle of finality of judgements: Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41; Young v Hones [2014] NSWCA 337 at [17] (“Young”).

55. The question which arises in this case is the extent to which the immunity extends to out-of-court work being conducted by an expert (this being the same question that arose in Young).

56. In Griffiths, Beazley JA stated at [71], citing Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435 at 448, as follows:

“As in the case of other expert witnesses, it would unduly inhibit the trial process if they did not have the protection of the immunity in regard to the content of the reports which they had prepared with a view to giving evidence should the matter come to trial.”

57. Further, in Griffiths, Young CJ in Equity observed that there is a clear public policy that witnesses in curial proceedings have immunity in respect of their evidence and in respect of what they did in preparing to give evidence: see also Jovanovic & Anor v Woods & Ors(No 3) [2001] TASSC 96 at [7]; Sovereign Motor Inns v Howarth Asia Pacific [2003] NSWSC 1120 at [46]; R v Beydoun (1990) 22 NSWLR 256 at 259.

58. In addition to the matters to which I referred to when summarising the plaintiff’s submissions, the plaintiff’s response to these well-established principles is to highlight two matters on which they rely, being:

1. the principle of witness immunity has been abolished in the United Kingdom (see Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398 (“Jones v Kaney”)); and

2. the High Court in Attwells limited the scope of advocate’s immunity, such that it left open the type of action being pursued by the plaintiff.

59. In Jones v Kaney, the claimant sought damages for injuries sustained in a motor vehicle accident. The claimant retained the defendant, a psychologist, to provide an expert psychological report. During the course of giving evidence, the defendant changed her views expressed in the joint report, suggesting that she had been pressured into signing the joint report. The case was struck out on the basis that the defendant enjoyed immunity from suit as an expert witness.

60. On appeal to the UK Supreme Court, the Court found that there was no justification for continuing to hold expert witnesses immune from suit for breach of duty in relation to the evidence they gave in Court, and for the views they expressed in anticipation of court proceedings. The Court held that the immunity from suit for breach of duty by expert witnesses should thus be abolished.

61. This decision was referred to in Young, where Bathurst CJ observed at [13]-[16]:

“The appellant in her submissions did not suggest that the Court should follow the decision of the United Kingdom Supreme Court in Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398. In that case a majority of the Court (Lord Hope and Baroness Hale dissenting) held that immunity from suit for breach of duty, which expert witnesses retained in litigation had enjoyed previously, should be abolished. In my opinion the appellant was correct in adopting this course.

In Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 139, 141 and 149, the High Court upheld the immunity without engrafting any exceptions to it. Rich ACJ explained at 139 that proceeding against a witness is an attempt to re-examine the judgment in the earlier proceedings. He cited with approval the statement of Allen J in Stevens v Rowe (1880) 47 Am. Rep. 231 at 232, to the effect “hat "[t]he procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litig”tion".

In Giannarelli the existence of the adv’cate's immunity was affirmed. Mason CJ described at 533 the foundation of the principle as being that mischief would result if those engaged in the administration of justice were not able to speak freely (see also 569-570 per Wilson J and 595 per Dawson J).

The immunity was also affirmed by the plurality’in D'Orta at [39]-[40]. They referred at [41] to the fact that statements can be found in the cases that the immunity serves to encourage freedom of expression or freedom of speech. They also stated that the deeper consideration that lies beneath the principle is that determining whether the complaint against the witness is or is not justified requires re-litigation of the matter out of which the complaint arises.”

62. I do not understand the plaintiff to be submitting that I should follow Jones v Kaney. Rather it is submitted that regard should be had to that decision and Attwells, leaving open for determination on the final hearing the scope of witness immunity. Any suggestion that I should have regard to Jones v Kaney is, of course, answered by the Chief Justice in Young in the paragraphs to which I have just referred.

63. In Attwells, the Court considered the question of whether advocates immunity extended to negligent advice from a lawyer, which led to the settlement of a case by agreement between the parties. French CJ, Kiefel, Bell, Gageler and Keane JJ declined to abolish the advocates immunity or overrule the decisions in D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 and Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 at [5]-[6]:

“The abolition of the immunity would require this Court to overrule its decisions in D'Orta and Giannarelli. For the reasons which follow, the appellants' argument in this regard should be rejected.  On the other hand, the appellants' argument as to the scope of the immunity should be accepted.  The authoritative test for the application of the immunity stated in D'Orta and Giannarelli is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute.  No doubt an advice to cease litigating which leads to a settlement is connected in a general sense to the litigation which is compromised by the agreement.  But the intimate connection required to attract the immunity is a functional connection between the advocate's work and the judge's decision.  As Mason CJ said in Giannarelli, the required connection is between the work in question and the manner in which the case is conducted in court.  Both D'Orta and Giannarelli were concerned with claims which impugned a judicial determination to which the allegedly negligent work of the advocate contributed.  As will be seen from a closer consideration of the reasoning in D'Orta, the public policy, protective of finality, which justifies the immunity at the same time limits its scope so that its protection can only be invoked where the advocate's work has contributed to the judicial determination of the litigation. 

In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court.  The immunity does not extend to preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement between the parties merely because litigation is on foot at the time the agreement is made.  That conclusion is not altered by the circumstance that, in the present case, the parties' agreement was embodied in consent orders.”

64. The Court identified that the clear basis for the continuation of the advocates immunity was the principle of the finality of litigation. The Court stated at [35]:

“The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully.”

65. The Court further held at [46]:

“Once it is appreciated that the basis of the immunity is the protection of the finality and certainty of judicial determinations, it can be more clearly understood that the ’intimate connection’ between the advocate's work and ’the conduct of the case in court’ must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision.  The notion of an ‘intimate connection’ between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate's work and the client's loss; rather, it is concerned only with work by the advocate that bears upon the judge's determination of the case.”

66. According to the plaintiff, the principle of finality provides no justification for the continuation of the application of witness immunity in the circumstances of this case. That is because there was no litigation and, according to the plaintiff, the report was not obtained for the purposes of being used in anticipated litigation. That is an assertion of fact which must be considered in the context of the letter of instructions to the defendant and his report.

67. Mr Polese submitted that the report was obtained for the purposes of the defendant advising as to the prospect of success in the proposed claim. The plaintiff submits that the AHRC is not a court; it exercises no judicial function and it does not have the power to make orders. It has no power to determine facts nor hear evidence in the traditional sense. Indeed, the plaintiff points to the AHRC’s own website, in which it states that it is not a court and cannot decide if discrimination has occurred. The plaintiff makes this point in support of its contention that the work done by the defendant was not done in connection with any court proceedings. That is, it was advisory in nature.

68. The plaintiff’s opposition to the defendant's application is based on a central theme. That is, the defendant was retained to provide advice to the plaintiff; his report was never served or used in litigation; the report was obtained prior to the commencement of any litigation, such that there is no connection between the report and any litigation; the defendant did not give evidence in any proceedings; and there is no judgment which the plaintiff seeks to go behind.

69. The plaintiff states that the application will require a determination of a disputed question of fact: whether the report was obtained for advice only, as distinct from being obtained in preparation of litigation. This may be so, but merely saying that there is a disputed question of fact does not provide of itself an answer to the application. Further, there can be no doubt that, in some circumstances, the Court would be in a position to determine whether the principle of witness immunity applies at the interlocutory stage (see Donnellan v The Public Trustee (No 2) [2010] WASC 214).

Consideration

70. Having regard to the circumstances giving rise to the proceedings and the applicable legal principles, two things seem clear:

1. firstly, the immunity provides protection from suit. The fact that the plaintiff pursues causes of action in negligence, breach of fiduciary duty and under the ACL does not lessen or diminish the protection afforded by the immunity; and

2. secondly, the application of the immunity is not dependent upon whether the plaintiff used the expert report in court proceedings. If that was the case, the application of the immunity would depend not upon the purpose for which the expert was asked to examine and provide a report but, rather, on what the client (being the plaintiff) thought about the report and decided to do with it. Plainly in this case, the plaintiff did not agree with the report and it was not served in any proceedings. There has been no case or judgment in which the report was considered. The existence of immunity cannot depend on whether the opinion of an expert is favourable or unfavourable to the client who retained the expert, or any decision of the client as to the use of the expert report.

71. It is necessary to consider the purposes of obtaining the report. If, as the plaintiff says, the defendant was retained to advise the plaintiff about a potential claim, then there would at least be an argument as to the availability of the immunity. such that the proceedings should not be dismissed at this stage. In my view, this is really the crux of the issues between the parties on this application.

72. The difficulty for the plaintiff is that the evidence does not support the plaintiff’s contention and his submission that there needs to be further evidence on the issue is without substance. This is a case in which the documents speak for themselves.

73. To the extent that the plaintiff submits that he might like to put in an affidavit the purposes for which he obtained the report, he overlooks the fact that he has already done so. In his affidavit dated 27 April 2023, he states:

“On 29 June 2016 Harmers instructed the Defendant, consultant psychiatrist, Dr Julian Parmegiani to produce a medico-legal report with respect to my Employment clam again Kott Gunning (“the Report”) in the Australian Human Rights Commission.

Through Harmers, approximately one month later, I received a copy of the Report.”

74. Further, the submission that he was seeking advice from the defendant as to whether he could pursue a claim is inconsistent with the documents, being the letter of instructions and the report, and his own affidavit. The plaintiff was being advised by Harmers and the defendant was asked to offer his opinions and provide a report in accordance with the Expert Witness Code of Conduct. This is what the defendant was instructed by Harmers to do and this is what he said he did.

75. The fact that the AHRC is not a court is not determinative. The plaintiff had instructed solicitors and those solicitors had given notice to his former employer of the nature and extent of his claims. Referral to the AHRC, in a case which he asserted involved discrimination against him, was only the first step in the process. It must be that his solicitors, a well-known employment law firm, were aware that the AHRC does not have the power to make orders or determine facts. They were seeking use of the conciliation process to see if the dispute could be resolved. They had already given notice of the plaintiff’s intention to seek substantial damages. Harmers must be taken to have understood that the AHRC could not award such damages.

76. There is a clear distinction between an expert (of any discipline) giving advice to a person about prospects of success, evidence or issues in the proceeding and an expert being retained in accordance with the Expert Witness Code of Conduct. The proposition that the defendant was merely an expert retained by the plaintiff for the purposes of investigation, and for determining whether he might have a claim, is unsustainable.

77. Nor could the plaintiff’s case be enhanced by the plaintiff’s service of an affidavit outlining what he had intended the defendant do or why he thought the defendant had been retained. The plaintiff asserts that there is a disputed issue of fact and that he wants to adduce further evidence on that issue (that is, evidence of his own views). This is just an assertion on his part. No doubt, he wishes to pursue the argument, but his own views could hardly overcome what is obvious from the documents.

78. To the extent that the plaintiff raises an issue as to the facts, it is an issue which is capable of resolution at this stage on the documents, just as the issue would be resolved at any final hearing on the documents. Evidence from the plaintiff as to what he wanted or thought (if admissible) could not lead to a different conclusion from that which is obvious from the documents. For example, assuming that the plaintiff might adduce evidence of what he thought the defendant was doing, why the defendant was asked to prepare a report or what the plaintiff instructed Harmers to do, that evidence could not displace the direct written instructions to the defendant.

74. In my view, the report is of a type which is regularly commissioned by those seeking compensation or other orders. In circumstances in which the defendant was asked to confirm compliance with the Expert Witness Code of Conduct, he said that he complied with it and had been told that he may be required to give evidence in court. I do not accept that the defendant was retained to advise on the prospects of the plaintiff making a claim. He was retained to examine the plaintiff and prepare a report as an expert witness in future court proceedings, should it have been necessary.

75. The fact that the plaintiff might like to say he was retained for some different purpose (through a further affidavit), in circumstances in which he had already set out the basis the defendant was retained for in his affidavit dated 27 April 2023, does not take the matter any further. The documents speak for themselves and a self-serving statement by the plaintiff after the event is not a basis for declining to determine the defendant's motion at this time.

76. Similarly, the fact that the report was obtained prior to the lodgement of the claim in the AHRC and, further, that there might be an arguable issue as to the meaning of “proceedings” (or whether the AHRC is a court) is not to the point. The demands made by the plaintiff through Harmers included a claim for compensation. If his claim could not be resolved, either through the AHRC or otherwise, then the only means of obtaining compensation would be the institution of proceedings. This is what ultimately occurred. However, the plaintiff did not want to use the report because it was unfavourable to his claim. It could hardly be disputed that, if the report was favourable, he would have served it during the Federal Court proceedings.

77. The essential question remains whether the defendant in performing the work he did (by providing a report and offering opinions in accordance with the Expert Witness Code of Conduct) was performing work which provides him with a defence by way of immunity from suit.

78. In my view, there is nothing in Attwells which suggests that the immunity is not available to an expert preparing a medicolegal report in accordance with the Expert Witness Code of Conduct, irrespective of whether the report was obtained prior to the commencement of proceedings, or after the commencement of proceedings. Further, the immunity from suit is not dependent upon whether the author of the report actually gives evidence, or even whether there was any litigation (of course, there was litigation in this matter because the plaintiff commenced proceedings in the Federal Court, but they were stayed).

79. In my view, there is no factual dispute that remains to be determined which would prevent the determination of the defendant's motion.

80. I must have regard to all potential arguments, and I should not dismiss a novel claim but, in my view, the law in Australia remains clear.

81. Absent any change in the law by the High Court, this case is bound to fail. It is not my function to determine the case on the basis that, as the UK Supreme Court has abolished witness immunity, there is some prospect of the scope of the immunity being limited in Australia. I must determine the matter on the current state of the law.

82. Further, I emphasise that I am not determining the accuracy or correctness of the factual assertions made in the statement of claim. I am not determining whether the defendant owed a duty of care to the plaintiff or whether there was any breach of duty or the ACL. I am determining the matter on the basis of the facts asserted by the plaintiff in the statement of claim.

83. None of the arguments advanced by the plaintiff provide a basis for overcoming the immunity. Mere assertions that there is a significant issue to be determined and that the plaintiff may wish to adduce further evidence do not overcome the difficulties which arise for him through the documentation.

84. This application gives rise to an important point. In my view, a medicolegal expert retained to provide a report, who is required to comply with the Expert Witness Code of Conduct on the basis that evidence might be used in court, continues to have immunity from suit.

85. In the circumstances, I am satisfied that the plaintiff's case is bound to fail and should be dismissed pursuant to r 13.4 of the UCPR.

Suppression orders

91. The plaintiff seeks an order pursuant to ss 7, 8(1)(c) and 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) that the report be subject to a Suppression Order until further order of the Court.

92. The plaintiff identifies two reasons which make the Suppression Order necessary, being:

1. protecting confidence in the judicial process, in circumstances wherein there is sensitive and confidential information that is required for court processes but is not required to be disclosed to the public; and

2. to protect the safety of persons, being the plaintiff’s physical and mental health, on the basis that the Suppression Order will alleviate the plaintiff’s concerns of third parties accessing the report, which has already caused him anxiety and depression.

93. The plaintiff submits that safety includes psychological safety, highlighting the aggravation of his pre-existing mental conditions as well as the risk of physical harm from the worsening of his psychiatric conditions (AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 (“AB”) at [59]).

94. In John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344; [2004] NSWCA 324, Spigelman CJ (Handley JA and Campbell AJA agreeing) said at [19]-[21]:

“It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, e.g., McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.)

It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, e.g., Dickason at 51; Russell at 520; John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694 at [70]-[73].)

The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, e.g., Attorney General v Leveller Magazine Limited[1979] AC 441 at 450.)

From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, e.g., Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)”

95. Exceptions to the principle of open justice are few and are strictly defined. In light of the principle of open justice, an order for suppression must be regarded as exceptional.

96. Section 6 of the Act requires that I take into account that the primary objective of the administration of justice is to safeguard the public interest in open justice. I must have regard to that primary objective but I must also apply s 8 according to its text, context and purpose (A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713 at [47]).

97. I accept that s 8(1)(c) of the Act may include psychological safety, rather than merely physical harm (AB at [59]). In this context, safety refers to the development or aggravation of a psychological condition rather than minor embarrassment, discomfort, reputational damage or even financial loss.

98. The plaintiff has not directed me to any evidence that supports the proposition that, absent a Suppression Order, his psychological condition will be aggravated. Merely submitting that it will be aggravated is insufficient.

99. In the circumstances, the plaintiff has not established that the orders are necessary to protect his safety.

100. The plaintiff’s submission in respect of s 8(1)(e) of the Act appears to be based on the proposition that an order should be made when there is sensitive and confidential information which does not need to be disclosed to the public and which, if disclosed, would cause possible detriment to him.

101. Unfortunately, that is a risk which often accompanies litigation.

102. The plaintiff’s submission that there is a public interest in protecting confidential information, such that sensitive and confidential information should be suppressed, is contrary to the basis on which the principle of open justice operates. Confidence in the administration of justice is not enhanced by suppression of material used in court cases.

103. I do not accept that a Suppression Order in respect of the defendant’s report is necessary to protect the public confidence in the judicial process.

104. This is a professional negligence action, albeit it is unusual in nature. In my view, the order is not in the public interest and, in any event, the public interest for the order to be made would not outweigh the public interest in open justice.

105. The final submission made by the plaintiff is that it is necessary to make an order for consistency and to provide further confidence in the judicial process by reflecting the same orders made in below proceedings. If this is intended to bring any application within s 8(1)(a), I do not accept it.

106. In this matter, the origin and basis of the proceedings is the expert report prepared by the defendant. The plaintiff identifies those aspects of the report about which he complains. The report would be central to any hearing. I am uncertain of how the parties could conduct this litigation without extensive reference to the content of the report.

107. The plaintiff has not established that a Suppression Order should be made.

Orders

108. I make the following orders:

1. Leave is granted to amend the statement of claim.

2. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.

3. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 24 August 2023