Najjarin v Goodman

[2024] NSWDC 81

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Najjarin v Goodman [2024] NSWDC 81

Hearing dates:

01 March 2024

Date of orders:

01 March 2024

Decision date:

01 March 2024

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

Ex tempore

Catchwords:

PROCEDURE – Civil – Interlocutory application – Medico-legal assessment – Motor vehicle accident – Defendant seeking order for psychiatric examination of Plaintiff – Refusal to attend medical examination – Where purpose of medical examination is not supported by medical evidence – Where application said to be credibility based – Fair and efficient conduct of litigation on the real issues

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 23.4

Civil Procedure Act 2005 (NSW) ss 56-60

Cases Cited:

Boral Transport Pty Ltd v Gulic [2013] NSWCA 150, [4]-[5], [12]

Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715, [35], [61]

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

Category:

Procedural rulings

Parties:

Omar Najjarin (Plaintiff/Respondent)
Anna Ruth Goodman (Defendant/Applicant)

Representation:

Counsel:
J Malouf (Plaintiff/Respondent)
B Wilson (Defendant/Applicant)

Solicitors:
CL Compensation Lawyers (Plaintiff/Respondent)
Meridian Lawyers (Defendant/Applicant)

File Number(s):

2023/00141923

Judgment – Ex Tempore

1. The Defendant, as Applicant, filed its notice of motion on 10 August 2023 and proceeds for an order pursuant to UCPR pt 23 r 4 that the Plaintiff attend a medico-legal examination with Associate Professor Jennifer Batchelor. A/Prof Batchelor is a neuropsychologist, well known to this Court as the provider of expert opinion evidence within her field.

2. The affidavit in support of the notice of motion by the Defendant attorney, Mr Simon Jacques de Chasteigner du Mee, of 10 August 2023, deposes at [6] “The defendant wishes to test the Plaintiff’s credibility, having regard to the conclusions reached by Dr Synnott. The most appropriate vehicle to do so, in the Defendant’s respectful submission, is via psychometric testing including administering the Test of Memory Malingering (TOMM)” as the purpose of medico-legal examination by A/Prof Batchelor.

3. The incident, being a motor vehicle accident, had occurred on 7 April 2018. The defence have briefed specialist psychiatrist, Dr Synnott, to whose four reports I will come. There is no expert medical opinion evidence in support of the application from Dr Batchelor. There is no evidence describing the nature of what is required in the undergoing of the proposed examination, nor a specific description of the tests proposed. It is within the Court’s experience, and as conceded, properly by Mr Wilson of counsel for the Defendant, that there are a range of psychometric tests which can be carried out. There are tests called SIMS for instance.

4. Psychiatrists giving evidence in the Court have varying views as to the utility of psychometric testing when determining the veracity of the history given by the presenting patient or medico-legal litigant. That said, in my opinion, it is obvious, according to the principles of law to which I will come, that the Applicant Defendant would be entitled to an order directing the Respondent Plaintiff to attend medico-legal…