Kirschner v Perochinsky

The appeal concerned an application for leave to appeal an interlocutory decision of the primary judge who had dismissed the defendants' application for a medical examination of the plaintiff. The defendants sought to have the plaintiff examined by a medical expert, notwithstanding that the plaintiff had previously undergone a medical examination at their request.

The Court of Appeal was required to determine whether the primary judge erred in identifying the relevant factual considerations when dismissing the application for a further medical examination. A key issue was whether the prior examination constituted a relevant consideration that could preclude a subsequent application for a further examination. The Court also considered the principles governing interference by an appellate court with orders regulating the procedure in a trial division.

Basten and Macfarlan JJA dismissed the application for leave to appeal. Their Honours found no error in the primary judge's approach and affirmed the principle that appellate courts are reluctant to interfere with interlocutory procedural orders made by a trial judge, particularly where the judge has properly considered the relevant factual matrix. The applicant was ordered to pay the respondent's costs of the application.