Legal Research
Cases
Hollingsworth v State of NSW

Hollingsworth v State of NSW

Case [2023] NSWDC 46 6 March 2023

Discovery & Disclosure

Admissibility of Evidence

Costs

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Hollingsworth v State of NSW [2023] NSWDC 46
Hearing dates: 23 & 24 February 2023
Date of orders: 6 March 2023
Decision date: 06 March 2023
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. The defendant’s notice of motion filed on 17 October 2022 pursuant to UCPR r 23.4 seeking to place non-recording conditions on the plaintiff’s attendance at an examination by a forensic psychiatrist appointed by the defendant, is dismissed;
2. Pursuant to UCPR Sch 7, cl 5(c), any expert forensic psychiatrist appointed by the defendant to examine the plaintiff is directed to permit the plaintiff to make a sound recording of the entire assessment session on the proviso that the plaintiff provide that expert with a full copy of such a recording if requested to do so;
3. Pursuant to UCPR Sch 7, cl 5(c), 24 hours before an appointed examination, any forensic psychiatrist appointed by the defendant to examine the plaintiff, is directed to provide to the defendant’s solicitor, copied to the plaintiff’s solicitor, a written undertaking to abide by the direction the subject of Order (2);
4. The defendant is to pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless a party can show an entitlement to some other order for costs;
5. I confirm the terms of the mediation order made on 24 February 2023 pursuant to s 26 of the Civil Procedure Act 2005 (NSW) for the mediation to be concluded by 31 May 2023, irrespective of whether the defendant has by that date had a forensic psychiatrist examine the plaintiff;
6. By 13 March 2023, the solicitors for the respective parties are to each serve on their own clients a notice in the form of a Smyth order in compliance with UCPR r 42.32;
7. The exhibits may be returned;
8. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:
CIVIL PROCEDURE – medical examination of plaintiff by an expert forensic psychiatrist nominated by defendant pursuant to UCPR r 23.4; whether defendant has justified placing claimed restrictions on plaintiff’s lawful right to audio record the proposed interview; whether plaintiff should be required to attend a psychiatric examination appointed by defendant where the expert retained by defendant has indicated a refusal to abide by a relevant direction to be made by the Court pursuant to the Expert Code of Conduct comprising UCPR Sch 7, cl 5(c) permitting the making of an audio recording of the proposed expert examination

Legislation Cited:
Anti-Discrimination Act 1977 (NSW), s 4
Civil Procedure Act 2005 (NSW), s 56, s 58
Disability Discrimination Act 1992 (Cwth), s 5(1), s 6(1), s 24
Equality before the law: Bench Book Judicial Commission of NSW 2022, sections 1.1, 1.3 and 5
Trauma-informed Courts Guidance for trauma-informed judicial practices: Judicial Commission of NSW 2022
Uniform Civil Procedure Rules 2005 (NSW), r 23.2, r 23.4, r 23.5, r 31.23, r 31.27, r 42.32, Sch 7,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hollingsworth v State of NSW

Details

AGLC: Hollingsworth v State of NSW [2023] NSWDC 46
Case: [2023] NSWDC 46
Decision Date: 06 March 2023

CaseChat Overview and Summary

The case before the court involved Hollingsworth, the plaintiff, and the State of New South Wales, the defendant. The dispute centred on the procedures governing the medical examination of the plaintiff by an expert forensic psychiatrist, nominated by the defendant, in accordance with UCPR r 23.4. The plaintiff sought to audio record the proposed interview, a right the defendant sought to restrict. The court had to decide whether the defendant had justified placing restrictions on the plaintiff’s lawful right to record the interview, and whether the plaintiff should attend the psychiatric examination under the given conditions.

The primary legal issue was whether the defendant's restrictions on the plaintiff's right to audio record the examination were justified. The court had to consider the plaintiff's right to record the examination as well as the defendant's interest in ensuring the integrity of the examination process. Another issue was whether the plaintiff should be required to attend the examination if the expert retained by the defendant indicated a refusal to abide by a relevant direction to permit the recording of the session. The court had to balance the plaintiff’s rights against the defendant’s procedural requirements.

In dismissing the defendant’s notice of motion, the court held that the defendant had not justified placing non-recording conditions on the plaintiff’s attendance at the examination. The court held that the plaintiff’s right to record the examination was lawful and necessary for ensuring transparency and fairness in the process. The court also directed that any forensic psychiatrist appointed by the defendant must permit the plaintiff to make a sound recording of the entire assessment session, subject to the condition that the plaintiff provide a copy of the recording if requested. The court further directed the expert to provide a written undertaking to abide by this direction. The defendant was ordered to pay the plaintiff’s costs of the dismissed motion unless another order for costs was justified.

In addition to these directions, the court confirmed the terms of a mediation order for the mediation to be concluded by 31 May 2023. The solicitors for the parties were directed to serve a notice in the form of a Smyth order on their respective clients by 13 March 2023. The exhibits were to be returned, and liberty to apply for further or other orders was granted on seven days’ notice.

Orders

Orders of the court

1. The defendant’s notice of motion filed on 17 October 2022 pursuant to UCPR r 23.4 seeking to place non-recording conditions on the plaintiff’s attendance at an examination by a forensic psychiatrist appointed by the defendant, is dismissed;

2. Pursuant to UCPR Sch 7, cl 5(c), any expert forensic psychiatrist appointed by the defendant to examine the plaintiff is directed to permit the plaintiff to make a sound recording of the entire assessment session on the proviso that the plaintiff provide that expert with a full copy of such a recording if requested to do so;

3. Pursuant to UCPR Sch 7, cl 5(c), 24 hours before an appointed examination, any forensic psychiatrist appointed by the defendant to examine the plaintiff, is directed to provide to the defendant’s solicitor, copied to the plaintiff’s solicitor, a written undertaking to abide by the direction the subject of Order (2);

4. The defendant is to pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless a party can show an entitlement to some other order for costs;

5. I confirm the terms of the mediation order made on 24 February 2023 pursuant to s 26 of the Civil Procedure Act 2005 (NSW) for the mediation to be concluded by 31 May 2023, irrespective of whether the defendant has by that date had a forensic psychiatrist examine the plaintiff;

6. By 13 March 2023, the solicitors for the respective parties are to each serve on their own clients a notice in the form of a Smyth order in compliance with UCPR r 42.32;

7. The exhibits may be returned;

8. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Hollingsworth v State of NSW [2023] NSWDC 46

Most Recent Citation

State of New South Wales v Hollingsworth [2023] NSWCA 152

Cases Citing This Decision

State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Citation 1 (Para 49)

…edical examination of the plaintiff that is the subject of an order made pursuant to UCPR r 23.4 be audio recorded”: Hollingsworth v State of NSW [2023] NSWDC 46 at [134]. It is also clear that in large measure the primary judge accepted the submissions advanced by Mr Hollingsworth in dismissing the State’s motion…
State of New South Wales v Hollingsworth [2023] NSWCA 152
Citation 2

…ion: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2023] NSWDC 46 Date of Decision: 06 March 2023 Before: Judge Levy SC File Number(s): 2021/00014826…

See all citing cases →

Cases Cited

WILLANS & ENMORE [2021] FamCA 73
Citation 1 (Para 162)

…g reasons: UCPR r 31.27(1)(c); Sch 7, cl 5(c); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.…
Tsueneaki v Stewart [2013] ACTCA 34
Citation 2 (Para 112)

…e to the plaintiff due to a possible delay in the commencement of hearing: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.…
Bartel and Schneider (No. 2) [2012] FamCA 890
Citation 3 (Para 162)

…s to be evaluated for acceptability by reference to the underlying reasons: UCPR r 31.27(1)(c); Sch 7, cl 5(c); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.…
Wickey v McVicar [2012] ACTCA 38
Citation 4 (Para 101)

…c medical examiner appointed by the defendant to examine the plaintiff. That resolution must be determined by appropriate reasons: House v The King (1936) 55 CLR 499; [1936] HCA 40.…
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Citation 5 (Para 162)

….27(1)(c); Sch 7, cl 5(c); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.…
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Citation 6 (Para 112)

…ue to a possible delay in the commencement of hearing: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.…
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Citation 7 (Para 214)

…Dr Metelerkamp and Professor Greenberg on the other: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66].…
AON Risk Services Australia Limited v Australian National University [2009] HCATrans 74
Citation 8 (Para 112)

…mely determination. This unfortunate timing should not cause prejudice to the plaintiff due to a possible delay in the commencement of hearing: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.…
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
Citation 9 (Para 214)

…views of Dr Brown on the one hand, and the opposing views of Dr Metelerkamp and Professor Greenberg on the other: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66].…
Angliss v Urquhart [2001] NSWCA 441
Citation 10 (Para 110)

…mined to be reasonable, they must be balanced justly, where one right is not considered to be more important than the other right: Angliss v Urquhart [2001] NSWCA 441, at [13]-[16]; Crofts v The State of Qld [2001] QSC 220, at [25]. In my view, the defendant’s delayed timing of the ventilation of this dispute serve…
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Citation 11 (Para 162)

…acceptability by reference to the underlying reasons: UCPR r 31.27(1)(c); Sch 7, cl 5(c); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.…
Crofts v State of Queensland [2001] QSC 220
Citation 12 (Para 110)

…e one right is not considered to be more important than the other right: Angliss v Urquhart [2001] NSWCA 441, at [13]-[16]; Crofts v The State of Qld [2001] QSC 220, at [25]. In my view, the defendant’s delayed timing of the ventilation of this dispute serves to undermine the reasonableness of the defendant’s pos…
Mount Isa Mines Ltd v Pusey [1970] HCA 60
Citation 13 (Para 72)

…conditions of vulnerability that arise from his PTSD condition, and his related condition of anxiety: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18], p 406.…

Legislation Cited

Disability Discrimination Act 1992 (Cth) 5(1), 6(1))
3 mentions (from Para 135)
Anti-Discrimination Act 1977 (NSW) 4
2 mentions (from Para 167)
Civil Procedure Act 2005 (NSW) 56
2 mentions (from Para 2)
Uniform Civil Procedure Rules 2005 (NSW) 23.2
2 mentions (from Para 2)
Surveillance Devices Act 2007 (NT)
1 mention

Medium Neutral Citation:	Hollingsworth v State of NSW [2023] NSWDC 46
Hearing dates:	23 & 24 February 2023
Date of orders:	6 March 2023
Decision date:	06 March 2023
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. The defendant’s notice of motion filed on 17 October 2022 pursuant to UCPR r 23.4 seeking to place non-recording conditions on the plaintiff’s attendance at an examination by a forensic psychiatrist appointed by the defendant, is dismissed; 2. Pursuant to UCPR Sch 7, cl 5(c), any expert forensic psychiatrist appointed by the defendant to examine the plaintiff is directed to permit the plaintiff to make a sound recording of the entire assessment session on the proviso that the plaintiff provide that expert with a full copy of such a recording if requested to do so; 3. Pursuant to UCPR Sch 7, cl 5(c), 24 hours before an appointed examination, any forensic psychiatrist appointed by the defendant to examine the plaintiff, is directed to provide to the defendant’s solicitor, copied to the plaintiff’s solicitor, a written undertaking to abide by the direction the subject of Order (2); 4. The defendant is to pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless a party can show an entitlement to some other order for costs; 5. I confirm the terms of the mediation order made on 24 February 2023 pursuant to s 26 of the Civil Procedure Act 2005 (NSW) for the mediation to be concluded by 31 May 2023, irrespective of whether the defendant has by that date had a forensic psychiatrist examine the plaintiff; 6. By 13 March 2023, the solicitors for the respective parties are to each serve on their own clients a notice in the form of a Smyth order in compliance with UCPR r 42.32; 7. The exhibits may be returned; 8. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	CIVIL PROCEDURE – medical examination of plaintiff by an expert forensic psychiatrist nominated by defendant pursuant to UCPR r 23.4; whether defendant has justified placing claimed restrictions on plaintiff’s lawful right to audio record the proposed interview; whether plaintiff should be required to attend a psychiatric examination appointed by defendant where the expert retained by defendant has indicated a refusal to abide by a relevant direction to be made by the Court pursuant to the Expert Code of Conduct comprising UCPR Sch 7, cl 5(c) permitting the making of an audio recording of the proposed expert examination
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), s 4 Civil Procedure Act 2005 (NSW), s 56, s 58 Disability Discrimination Act 1992 (Cwth), s 5(1), s 6(1), s 24 Equality before the law: Bench Book Judicial Commission of NSW 2022, sections 1.1, 1.3 and 5 Trauma-informed Courts Guidance for trauma-informed judicial practices: Judicial Commission of NSW 2022 Uniform Civil Procedure Rules 2005 (NSW), r 23.2, r 23.4, r 23.5, r 31.23, r 31.27, r 42.32, Sch 7,…