Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: State of New South Wales v Hollingsworth [2023] NSWCA 152 Hearing dates: 09 June 2023 Date of orders: 04 July 2023 Decision date: 04 July 2023 Before: Mitchelmore JA at [1];
Stern JA at [2];
Basten AJA at [139]Decision: (1) Leave to appeal granted.
(2) Direct that within 7 days the State file a notice of appeal in the form of the draft amended notice of appeal filed on 9 June 2023.
(3) The appeal is allowed.
(4) Orders 1 to 4 made by the primary judge should be set aside and instead there should be orders that:
(a) under UCPR, r 23.4, Mr Hollingsworth is to submit to an assessment by a psychiatrist instructed by the State irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means; and
(b) Mr Hollingsworth should pay the State’s costs of and incidental to the motion filed 17 October 2022
(5) Mr Hollingsworth should pay the State’s costs of the application for leave to appeal and the appeal.
Catchwords: CIVIL PROCEDURE – medical examination – whether primary judge erred in relying on cl 5(c) Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) – Clause 5(c) does not confer power on the Court to direct expert witnesses as to how they conduct assessment for the purpose of preparing expert report – whether primary judge took into account irrelevant considerations and failed to take into account relevant considerations – no right to have assessment recorded;
JURISDICTION – whether orders made by the primary judge were within power – Rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) – Section 61 of the Civil Procedure Act 2005 (NSW) – inherent jurisdiction;
JUDGMENT AND ORDERS – Amending, varying and setting aside – Court of Appeal – Re-exercise of discretion under r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56(1), 58(1), 61
District Court Act 1973 (NSW), s 127(2)(a)
Supreme Court Act 1970 (NSW), s 23
Surveillance Devices Act 2007 (NSW), ss 4, 7
Uniform Civil Procedure Rules 2005 (NSW), rr 23.4, 23.5, 23.9, 31.23, 31.24, Sch 7, cll 5, 6
Disability Discrimination Act 1992 (Cth), s 3, 6, 24
Cases Cited: Adam P Brown Male Fashions Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Boral Transport Pty Ltd v Gulic [2013] NSWCA 150
Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142
Crofts v State of Queensland [2001] QSC 220
Edmeades v Thames Board Mills Ltd [1969] 2 QB 67
Hamilton v Oades (1998) 166 CLR 486; [1989] HCA 21
Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425
House v The King (1936) 55 CLR 499; [1936] HCA 40
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- AGLC
- State of New South Wales v Hollingsworth [2023] NSWCA 152
- Case
- [2023] NSWCA 152
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the primary judge erred in relying on clause 5(c) of Schedule 7 of the *Uniform Civil Procedure Rules 2005* (NSW) to direct expert witnesses on how to conduct assessments, and whether the primary judge took into account irrelevant considerations and failed to take into account relevant ones. The court also considered whether the orders made by the primary judge were within the court's power, referencing rule 23.4 of the *Uniform Civil Procedure Rules 2005* (NSW), section 61 of the *Civil Procedure Act 2005* (NSW), and the court's inherent jurisdiction.
The Court of Appeal reasoned that clause 5(c) of Schedule 7 of the *Uniform Civil Procedure Rules 2005* (NSW) does not confer power on the court to direct expert witnesses regarding the methodology of their assessments. The court found that the primary judge had erred in this regard. The Court of Appeal re-exercised its discretion under rule 23.4 of the *Uniform Civil Procedure Rules 2005* (NSW).
The appeal was allowed. The orders made by the primary judge were set aside. Instead, the Court of Appeal ordered that Mr Hollingsworth submit to an assessment by a psychiatrist instructed by the State, irrespective of whether that psychiatrist permitted the assessment to be recorded. Mr Hollingsworth was ordered to pay the State's costs of the motion and the application for leave to appeal and the appeal.
Orders
Orders of the court
(1) Leave to appeal granted.
(2) Direct that within 7 days the State file a notice of appeal in the form of the draft amended notice of appeal filed on 9 June 2023.
(3) The appeal is allowed.
(4) Orders 1 to 4 made by the primary judge should be set aside and instead there should be orders that:
(a) under UCPR, r 23.4, Mr Hollingsworth is to submit to an assessment by a psychiatrist instructed by the State irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means; and
(b) Mr Hollingsworth should pay the State’s costs of and incidental to the motion filed 17 October 2022
(5) Mr Hollingsworth should pay the State’s costs of the application for leave to appeal and the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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