Ristic v Southcote Investments Pty Ltd - [2000] WADC 158

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RISTIC -v- SOUTHCOTE INVESTMENTS PTY LTD [2000] WADC 158

CORAM: YEATS DCJ

HEARD: 13 APRIL 2000

DELIVERED : Delivered Extemporaneously on 13 APRIL 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 380 of 1999

BETWEEN: DUSAN RISTIC
Plaintiff
AND
SOUTHCOTE INVESTMENTS PTY LTD
Defendant

Catchwords:

Interlocutory proceedings - Application by defendant for plaintiff to submit himself for medical examination by a psychiatrist - Whether "special circumstances" exist to warrant an adjournment of trial - Meaning of "special circumstances" - Turns on own facts - Order 5 r 10 District Court Rules

Legislation:

District Court Rules

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr A Paternoster
Defendant: Mr A Power

Solicitors:

Plaintiff: Leonard Cohen & Co
Defendant: Crisp & Partners

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

Pipelines Induction Heat (Australia) Pty Ltd & Duncan v Vinidex Tubemakers Pty Ltd [1999] SASC 157
Re Norman (1886] 16 QBD 673
Starr v National Coal Board [1977] 1 WLR 63
Telfer & Anor v Flinders Range Council & Ors, unreported; SCt of SA; BC9900287; 15 February 1999

Case(s) also cited:

Nil

YEATS DCJ: This is an application by the defendant pursuant to O 28 of the Supreme Court Rules seeking an order that the plaintiff submit himself for medical examination by a psychiatrist, Professor Robert Finlay‑Jones, on Friday 27 April 2000 at 1.00 pm. There is a history to this application. This matter was listed for trial for six days commencing on 12 June this year. The trial was listed on 10 January. Shortly after it was listed for trial, the defendant arranged to have the plaintiff reviewed by Dr Mustac, a psychiatrist. The plaintiff objected on ethnic grounds as he is a person of Serbian descent who escaped from the difficulties in the former Yugoslavia and came to Australia in 1993. The plaintiff objected because he knew Dr Mustac was a Croatian. I have read his affidavit about that.
When that matter came on for hearing in March, the plaintiff filed an affidavit in which he explained his difficulties about consulting with a Croatian psychiatrist and then he said:
"I did not want to create such a fuss about the entire situation and I have undertaken in a letter which is attached to this affidavit to undergo examination by any other psychiatrist in Perth."
There is attached to that affidavit a letter written by the defendant's solicitors, the last paragraph of which states:
"Mr Ristic has informed us that he has no problem with seeing any other psychiatrist that you would choose to send him to."
The defendant's solicitor's letter is dated 25 February 2000 and is attached to Mr Ristic's affidavit of 13 March. Pursuant to that undertaking, the defendant has arranged an appointment at the earliest opportunity with Professor Finlay‑Jones who the court accepts is a recognised and competent psychiatrist. That appointment has been made for 27 April. Now, contrary to his undertaking, the plaintiff has asserted that this procedure and the defendant's taking interlocutory action of this nature is in breach of the case management principles fundamental to the proper disposition of these cases in the District Court. The plaintiff relies on O 5 r 10 of the District Court Rules which is in these terms:
"Any interlocutory application that may result in adjournment of a trial will only be granted upon special circumstances being shown by affidavit."
The plaintiff submits that there are no special circumstances set out in the affidavit of Mr Smith filed in relation to these proceedings. The plaintiff further submits that his client has already submitted to medical examination by a consultant psychiatrist at the request of the defendant in August of 1999.
I have been assisted by counsel appearing on behalf of the defendant on the meaning of O 5 r 10 and the reference to "special circumstances". In Pipelines Induction Heat (Australia) Pty Ltd & Duncan v Vinidex Tubemakers Pty Ltd [1999] SASC 157 the Full Court of South Australia considered the meaning to be given to the words "special circumstances" as they appear in r 67.01 of the Supreme Court Rules of South Australia which is in similar terms to O 5 r 10 of the District Court Rules. In his judgment Williams J adopted the words of Lopez LJ in In Re Norman (1886] 16 QBD 673 at 677 that the words "special circumstances" are "wide, comprehensive and flexible words". In Holt v Hogan (1993) 117 ALR 378 Cooper J found that the phrase "special circumstances" indicates a need for the existence of circumstances which are exceptional. The phrase implies a presumption against the making of a relevant order. In Telfer & Anor v Flinders Range Council & Ors, unreported; SCt of SA; BC9900287; 15 February 1999, Olsson J said at [29]:
"It is clear that the Rule contemplates that such an application will only be entertained in the most compelling circumstances. Its rationale is that to permit uncontrolled interlocutory applications after a case is set down for trial (and particularly during the course of a trial) would not only negate any semblance of orderly case flow management procedures, but would also, inevitably, precipitate situations inherently disruptive to an orderly and efficient trial process itself."
In considering the merits of this application, I am satisfied that special circumstances do exist because of the undertaking of Mr Ristic. I am surprised that he has not complied with his own undertaking and agreed to this without having the matter brought before the court again. However, in the particular circumstances of this application it may not be necessary for me to determine that there were special circumstances.
It is through no fault of the defendant that the matter has gone as late as it has. He originally commenced his request in February 2000 when the appointment with Dr Mustac was made. He has now arranged the earliest possible appointment with Professor Finlay‑Jones. That will take place six weeks ahead of the trial. The defendant apparently already has a report of Dr Lawrence Terace, psychiatrist. I understand that in the index of expert reports prepared for the trial the plaintiff has two psychiatrists reports. In these circumstances when a further opinion is sought from Professor Finlay‑Jones, the obtaining of that opinion six weeks before trial should not in my opinion risk the need for any adjournment of the trial. Experts have already reviewed the plaintiff and the plaintiff's own experts will be able to examine Professor Finlay‑Jones' findings and comment on them. I cannot imagine that this could give rise to any grounds for adjourning the trial. Therefore it is not strictly necessary in this application for the defendant to show "special circumstances" as the application does not fall within the terms of O 5 r 10.
The request of the defendant is a reasonable request. I refer to Starr v National Coal Board [1977] 1 WLR 63 and particularly the judgment of Scarman LJ. Scarman LJ referred to the discretion that is conferred on the court when an application of this nature is made and the various rights of the parties including the fundamental right of a defendant to defend himself in litigation. That right includes the freedom to choose a witness that he will call.
This was a reasonable request. There is no question that Professor Finlay‑Jones is eminently qualified. In these circumstances it would be unreasonable not to allow this examination to proceed.
For these reasons I will make the orders sought by the defendant.