Longbottom v Nulis Nominees (Australia) Limited
[2020] WASC 21
•31 JANUARY 2020
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 of agreement as to the time and place of the examination, or if any matter shall arise in relation to such examination, either party may apply to the Court for an order as to whether or not the objecting party shall submit himself for examination, or as to when and where such examination may be made, or as to any other matters to facilitate the examination.
The dispute between the parties was of very narrow compass. The plaintiff had no objection to submitting to a medical examination by Dr Edwards‑Smith. However he wished to make an audio recording of the consultation. As I will explain more fully below, Dr Edwards‑Smith was opposed to the plaintiff recording the interview. The plaintiff also sought to have in attendance a medical adviser of his choice and a support person. The second defendant had no objection to either of these two persons being present during the consultation. Nor, more importantly, did Dr Edwards‑Smith. I was satisfied in the circumstances it was not appropriate to permit the plaintiff or any other party present at the consultation to make an audio recording of that consultation.
Order 28 r 1 was inserted in the Supreme Court Rules on 28 June 2011. It reflected the common law position which appears to have had his genesis in the decision of Lord Justice Donovan in Pickett v Bristol Aeroplane Co Ltd (Unreported, UKCA, Bar Library Transcript No 114 of 1961, 16 March 1961). That was followed by the Court of Appeal decisions of Edmeades v Thames Board Mills Ltd (1969) 2 All ER 127 and Lane v Willis (1972) 1 All ER 430. In Edmeades Lord Denning MR put the position this way (at 129):
I do not think legislation is necessary. This court has ample jurisdiction to grant a stay whenever it is just and reasonable to do so. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not.
In this case both parties accepted the mental condition of the plaintiff was material to the outcome of the action. The plaintiff sought damages based on an alleged psychiatric illness. The plaintiff has already obtained and served evidence from a psychiatrist of his choice. Both parties accepted the discretion under O 28 r 1 was to be exercised in the interests of justice having regard to the evident subject matter, scope and purpose of the power: See Cranston v Kiernan [2017] WASCA 100 [39].
Turning then to the evidence, the affidavit of Ms Morris attaches a chain of email correspondence in the course of which the plaintiff's solicitors and the second defendant's solicitors discussed the conditions upon which the plaintiff would submit himself for a medical examination by Dr Edwards‑Smith. On 6 November the second defendant's solicitors sent an email to the plaintiff's solicitors which dealt with the 'recording of the examination'. Relevantly the email read as follows:
You purport to 'put us on notice' that the examination will be recorded. As you no doubt appreciate, the recording of psychiatric examination is highly unusual. This is the first time we have ever received a request to have a psychiatric examination be recorded and we are unsure as to why this request has been made.
We made enquires with Dr Edwards-Smith's rooms and we have been informed they do not allow recording of psychiatric examinations due to;
1.Privacy legislation;
2.Given the nature of matters which can be addressed in a psychiatric examination, there is a concern that the examinee will replay the examination recording which poses a risk to their mental health.
The email goes on to say that were the plaintiff to attempt to record the examination Dr Edwards‑Smith would terminate the assessment.
It must be acknowledged that the reasons advanced by the second defendant as to why the examination should not be recorded are thin. But no evidence to the contrary was led on behalf of the plaintiff and indeed it is doubtful whether such evidence would, in any event, have had a probative value. If Dr Edwards‑Smith took the view it was inappropriate to record the interview – that decision being made in the exercise of her professional judgment – then an opinion to the contrary from another psychiatrist would not alter the position.
Neither counsel was able to refer to any authority where a medical examination had been recorded either solely by audio recording or by both audio and visual recording. Be that as it may, the question in this case was whether it was in the interests of justice to permit the plaintiff to attempt to record the examination, being mindful that the likely outcome of his attempting to do so was that Dr Edwards‑Smith would not undertake the examination and the second defendant would be denied the opportunity to have Dr Edwards‑Smith's opinion.
The argument put on behalf of the plaintiff was straightforward. Given the plaintiff would attend the examination accompanied by a support person and a medical practitioner there was no reason why the consultation should not be recorded. If a dispute arose as to what was said during the course of the consultation the plaintiff could call either or both of the accompanying persons to give evidence supporting his version of events. Rather than rely on the plaintiff's memory and the memory of the two accompanying persons an audio recording would settle all disputes. Further, counsel submitted the audio recording would indicate the tone in which the consultation took place. So, for instance, if the plaintiff alleged Dr Edwards‑Smith was antagonistic or sarcastic, that would emerge clearly from the audio recording.
There is much to be said for courts embracing advances in technology. Although the order does not by its terms anticipate an audio or audiovisual recording of a medical consultation it is clearly designed to offer some protection to a person submitting themselves to a medical examination. The common law position as set out in the English cases to which I have referred makes no mention of a right by a party who is medically examined to have his or her medical practitioner present. That suggests the present form of the rules was designed to protect the position of the party being examined. It is at least arguable on that basis a plaintiff who seeks further protection by recording a consultation should be entitled to do so.
Against that there is the view of Dr Edwards‑Smith. In the end I was satisfied her view was decisive. Furthermore, while there might be a dispute as to the 'tone' of the interview the plaintiff's position was adequately protected by the attendance of a support person and a medical practitioner. It is open to question whether any recording could add anything further to the way in which the consultation was conducted.
For these reasons I was satisfied the plaintiff should not be entitled to record the consultation.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson31 JANUARY 2020
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