Parr v Slater and Gordon Ltd - [2018] WASC 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PARR -v- SLATER & GORDON LTD [2018] WASC 140
CORAM:   DERRICK J
HEARD:   3 MAY 2018
DELIVERED          :   11 MAY 2018
FILE NO/S:   CIV 3146 of 2017
BETWEEN:   ALISTAIR LACHLAN PARR
Plaintiff
AND
SLATER & GORDON LTD
Defendant

Catchwords:

Practice and procedure - Alleged negligence of solicitors - Allegation solicitors should have made use of psychiatric report concerning plaintiff - Application for order that plaintiff submit himself to psychiatric examination pursuant to O 28 r 1(2A) of the Rules of the Supreme Court 1971 (WA)

Legislation:

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

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr G R Hancy
Defendant	:	Mr G P Bourhill

Solicitors:

Plaintiff	:	Fletcher Law
Defendant	:	Denman Popperwell Lawyers

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

Cranston v Kiernan [2017] WASCA 100
Falkingham v Hoffmans (A Firm) [2014] WASCA 140; (2014) 46 WAR 510
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394
Perpetual Trustees (WA) Ltd v Naso [1999] WASCA 80; (1999) 21 WAR 191

DERRICK J:

The defendant applies pursuant to O 28 r 1(2A) of the Rules of the Supreme Court 1971 (WA) (RSC) for an order that the plaintiff submit himself to examination by Dr Diane Neill, psychiatrist. The application is supported by an affidavit sworn by Mr Sean Popperwell on 13 April 2018 and a further affidavit sworn by Mr Popperwell on 1 May 2018. Mr Popperwell is a partner in the firm of the solicitors acting for the defendant.
The application is opposed by the plaintiff.

Background to the application

On 24 September 2008 the plaintiff suffered an injury (the work injury) while he was working as a boilermaker welder at the Argyle Diamond Mine. He subsequently commenced an action in the District Court of Western Australia (the first action) against the entities for which he was working (the primary claim defendants) claiming damages for loss suffered as a result of the work injury. He retained the defendant to represent him in the first action on a 'no win no fee' basis.
On 28 August 2012 at a pre‑trial conference in the District Court the primary claim defendants made an offer to settle the first action (the settlement offer). The plaintiff accepted the settlement offer with the result that the first action was settled. The plaintiff's acceptance of the settlement offer was in accordance with the recommendation of the defendant.
The plaintiff commenced the present action against the defendant in August 2015. He alleges that the defendant was negligent in its representation of him in the first action. He also alleges that the defendant breached the retainer that he entered into with the defendant.
The plaintiff alleges that by reason of the defendant's negligence and breach of the retainer he suffered loss and damage in that he lost his right…

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: [2018] WASC 140
Decision Date: 11 MAY 2018

CaseChat Overview and Summary

Slater and Gordon Ltd applied for an order that Mr Parr submit himself to a psychiatric examination as part of the disclosure process in the litigation. The litigation involved a claim against the defendant for professional negligence. The defendant claimed that the plaintiff's claim should be dismissed because he had not complied with the order for the psychiatric examination. The plaintiff argued that he had been given no valid reason for the order and that the order was oppressive and vexatious. The court had to determine whether the order for a psychiatric examination was appropriate and necessary in the circumstances.

The court considered the purpose of the order, which was to obtain information that might be relevant to the plaintiff's claim. The court also considered the plaintiff's argument that the order was oppressive and vexatious. The court noted that the order was not oppressive or vexatious if it was necessary to obtain information that was relevant and necessary to the determination of the plaintiff's claim. The court also considered the plaintiff's argument that the order was not necessary because the defendant had already obtained a psychiatric report concerning the plaintiff. However, the court found that the report was not sufficient to determine whether the order was necessary.

The court concluded that the order for a psychiatric examination was necessary because the information that might be obtained from the examination was relevant and necessary to the determination of the plaintiff's claim. The court also found that the order was not oppressive or vexatious because it was necessary to obtain the information. The court therefore made the order that the plaintiff submit himself to a psychiatric examination.

The court ordered that Mr Parr submit himself to a psychiatric examination as part of the disclosure process in the litigation. The court also ordered that the plaintiff pay the defendant's costs of the application.

Orders