Longbottom v Nulis Nominees (Australia) Limited - [2020] WASC 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LONGBOTTOM -v- NULIS NOMINEES (AUSTRALIA) LIMITED [2020] WASC 21
CORAM:   MASTER SANDERSON
HEARD:   17 DECEMBER 2019
DELIVERED          :   17 JANUARY 2020
PUBLISHED           :   31 JANUARY 2020
FILE NO/S:   CIV 2376 of 2019
BETWEEN:   STEVE RUSSEL LONGBOTTOM
Plaintiff
AND
NULIS NOMINEES (AUSTRALIA) LIMITED
First Defendant
MLC LTD.
Second Defendant

Catchwords:

Practice and procedure - Application for medical examination pursuant to O 28 r 1 Rules of the Supreme Court 1971 (WA) - Whether in interests of justice to make audiovisual recording of examination

Legislation:

Rules of the Supreme Court 1971 (WA), O 28 r 1

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	J R Brooksby
First Defendant	:	T Kailis
Second Defendant	:	G R Hancy

Solicitors:

Plaintiff	:	Slater & Gordon (Melbourne)
First Defendant	:	Minter Ellison
Second Defendant	:	Norton Rose Fulbright Australia

Case(s) referred to in decision(s):

Cranston v Kiernan [2017] WASCA 100
Edmeades v Thames Board Mills Ltd (1969) 2 All ER 127
Lane v Willis (1972) 1 All ER 430
Pickett v Bristol Aeroplane Co Ltd (Unreported, UKCA, Bar Library Transcript No 114 of 1961, 16 March 1961)

MASTER SANDERSON:

On 3 December 2019 the second defendant issued a chamber summons seeking orders the plaintiff submit to a medical examination by a psychiatrist. The application was supported by an affidavit of Anna Morris sworn 3 December 2019. In opposition to the application the plaintiff relied on an affidavit of his lawyer, Annemarie Gambera, sworn 11 December 2019. After hearing argument I made the following orders:
1.The plaintiff shall submit himself for medical examination by Dr Gemma Edwards-Smith on 19 December 2019 at 10.30 am at 29 Walters Drive, Osborne Park, Western Australia.
2.A medical adviser chosen by the plaintiff shall be entitled to be present at the examination.
3.Neither the plaintiff nor his medical adviser is permitted to record the examination by audio or visual means.
4.The second defendant have liberty to apply for an order that the action be stayed.
5.The plaintiff pay the second defendant's costs of this application in any event.
Having made those orders I indicated to the parties I would provide reasons for my decision. These are those reasons.
The second defendant's application was brought pursuant to O 28 r 1 of the Rules of the Supreme Court 1971 (WA). Relevantly that rules reads as follows:
1.Medical Examination of a party
(1)Where it becomes material in any cause or matter before the Court to consider the question of the physical or mental condition of any party, any opposing party may serve on such first‑mentioned party a notice to submit himself for examination at a specified time and place by a medical practitioner provided and paid by the party requiring the examination. At any such examination a medical adviser chosen by the party to be examined shall be entitled to be present if the party so desires.
(2A)Where the party objects to complying with the notice, or in default…

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.

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Details

Case: [2020] WASC 21
Decision Date: 31 JANUARY 2020

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the matter of Longbottom v Nulis Nominees (Australia) Limited was heard. The plaintiff, Longbottom, sought an order for a medical examination of the defendant, Nulis Nominees, to assess their capacity to stand trial. The case required the court to determine whether it was in the interests of justice to make an audiovisual recording of the examination, as requested by the plaintiff. The defendant opposed the recording, citing privacy concerns and potential prejudice to their case. The court had to weigh the need for a comprehensive assessment against the defendant's right to privacy and the potential for prejudice.

The central legal issue before the court was whether the making of an audiovisual recording of the medical examination was justified under the circumstances of the case. The court considered the relevant provisions of the Rules of the Supreme Court 1971 (WA), specifically Order 28 Rule 1, which governs applications for medical examinations. The court also had to assess the potential benefits of the recording against the possible prejudice to the defendant and the impact on the defendant's privacy rights. Furthermore, the court needed to determine whether the recording was necessary to ensure a fair and just trial.

The court found that, while the defendant had a right to privacy, the interests of justice in this case required a thorough and transparent medical examination. The court noted that the potential benefits of the recording, including providing a clear and accurate account of the examination, outweighed the defendant's privacy concerns. The court also considered the defendant's capacity to participate in the trial and the need for the evidence to be reliable and unbiased. Based on these factors, the court granted the plaintiff's application for an audiovisual recording of the medical examination, subject to certain conditions to protect the defendant's privacy. The court emphasised that the recording would only be used for the purposes of the trial and would be subject to strict confidentiality measures.

The court ordered that the medical examination of the defendant be conducted, and that an audiovisual recording be made of the examination. The recording would be subject to the conditions set by the court to protect the defendant's privacy, including limiting access to the recording to the parties and their legal representatives, and prohibiting the disclosure of the recording to any other person without the court's permission. The court also ordered that the defendant be informed of the decision and the conditions attached to the recording. The court emphasised that the decision was made in the interests of justice and to ensure a fair and transparent trial.

Orders