State of New South Wales v Hollingsworth

[2023] NSWCA 152

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

JKZ v The Scots College [2018] NSWSC 1526

KF v Royal Alexandra Hospital for Children [2010] NSWSC 891

Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28

Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336

McGuirk v University of New South Wales [2010] NSWCA 104

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v LPSP [2023] FCAFC 24; (2023) 408 ALR 7

Plaintiff [name withheld] v Stapleton [2017] NSWSC 914

Prescott v Bulldog Tools Limited [1981] 3 All ER 869

Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73

Rowlands v New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136

Ryan v Regent Enterprises (1991) 3 WAR 552

Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218 at 253; [1992] HCA 15

Starr v National Coal Board [1977] 1 All ER 243

Texts Cited:

I H Jacob “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23

Michael J Gross et al “The Covert Recording of Medico-Legal Consultations” (2018) 84(6) Medico-Legal Journal 202

Royal Australian and New Zealand College of Psychiatry, Professional Guideline 11: Developing Reports and Conducting Independent Examinations in Medico-Legal Settings (November 2020)

Category:

Principal judgment

Parties:

State of New South Wales (Applicant)
Michael Hollingsworth (Respondent)

Representation:

Counsel:
DA Lloyd SC / JC Chapman (Applicant)
V Heath (Respondent)

Solicitors:
McCabes (Applicant)
Mitchell Lawyers (Respondent)

File Number(s):

2023/00105049

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2023] NSWDC 46

Date of Decision:

06 March 2023

Before:

Judge Levy SC

File Number(s):

2021/00014826

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, Mr Hollingsworth, was arrested and taken into custody by the NSW Police Force. He commenced proceedings in the District Court against the applicant, the State of New South Wales (“the State”), for false imprisonment, assault and battery. Mr Hollingsworth alleges that the incident exacerbated his pre-existing post-traumatic stress disorder (PTSD).

In support of his claim Mr Hollingsworth relies on expert medical reports from an experienced consultant forensic psychiatrist. The State requested that Mr Hollingsworth attend an assessment with Dr Apler, a psychiatrist. Mr Hollingsworth agreed to attend the assessment, on the condition he would be permitted to electronically record the interview. Dr Apler did not consent to this request. The interview was terminated by Dr Apler after Mr Hollingsworth refused to stop recording the assessment. The State then arranged for Mr Hollingsworth to attend an assessment with Dr Brown, a forensic psychiatrist. Dr Brown indicated she would not permit her assessment to be recorded and set out the reasons for her position in correspondence. Mr Hollingsworth again indicated his intention to record the assessment. Given Mr Hollingsworth’s position, the State cancelled the scheduled assessment by Dr Brown. The State made enquiries with five other psychiatrists who all indicated that they would refuse to have the assessment recorded.

The State applied to the District Court for an order under r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requiring Mr Hollingsworth to attend an assessment with Dr Brown without recording the assessment in audio or audio-visual form. On 6 March 2023, Judge Levy SC refused the application and instead ordered, purportedly under UCPR, Sch 7, cl 5(c), that any expert forensic psychiatrist appointed by the State to examine Mr Hollingsworth be directed to permit him to make a sound recording of the entire assessment session.

The State sought leave to appeal. The application was heard concurrently with the appeal. In the draft notice of appeal the State contended that his Honour had failed to take into account relevant material considerations and took into account irrelevant material considerations.

The Court (Mitchelmore JA, Stern JA, and Basten AJA) granting leave to appeal and allowing the appeal held:

By Stern JA (Mitchelmore JA and Basten AJA agreeing):

As to error by the trial judge

1. The primary judge erred in relying on UCPR, Sch 7, cl 5 as a source of power to make the orders concerning Mr Hollingsworth’s medical examination. There was no power conferred by UCPR, Sch 7, cl 5 to give such a direction to an expert witness. So much is clear from the statutory context of that clause, the terms of the clause itself, and the presumptive intention of the clause: [61], [67]-[70], [149] .

2. The primary judge’s exercise of discretion miscarried in a way that materially affected the result, in that his Honour failed to take into account the right of the State to have Mr Hollingsworth examined by a forensic psychiatrist of the State’s choice. That right was not conditioned by any matter which would impact upon the State’s ability to instruct its expert of choice: [97]-[101], [139].

3. The primary judge erred in concluding that Mr Hollingsworth had a right to make an audio recording of his assessment by a forensic psychiatrist. Insofar as his Honour took into account that right, his discretion miscarried in a way that materially affected the result: [105]-[106], [139].

   Secretary, Department of Health & Community Services v JWB (1992) 175 CLR 218 at 253; [1992] HCA 15; Ryan v Regent Enterprises (1991) 3 WAR 552 considered.

4. The primary judge erred in relying upon a finding that the refusal to allow Mr Hollingsworth to record his assessment by a psychiatrist appointed by the State amounted to unlawful discrimination under the Disability Discrimination Act 1992 (Cth). Insofar as his Honour took that finding into account, his discretion miscarried in a way that materially affected the result: [113]-[116], [139].

   Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 considered.

As to the re-exercise of the discretion

1. It is appropriate for this Court to re-exercise the discretion. In all the circumstances, it is appropriate that there be an order for an assessment of Mr Hollingsworth by a psychiatrist of the State’s choice. That order should not be conditioned by any requirement that Mr Hollingsworth should be permitted to record the assessment by audio or audio-visual means: [120]-[121], [157].

As to source of power

By Stern JA (Mitchelmore JA agreeing):

1. Given that both parties agreed that the primary judge had the power to make the orders concerning Mr Hollingsworth’s medical examination, it is unnecessary to express a final view on the correctness of that position. Nevertheless, there are real doubts as to whether r 23.4 of the UCPR, s 61 of the Civil Procedure Act 2005 (NSW) or the inherent jurisdiction of the Court could support the orders made by the primary judge: [71], [73]-[93].

By Basten AJA:

(7) There is a difficulty in identifying, let alone assessing, the relevant discretionary considerations in circumstances where the source of power itself is not identified: [141].

(8)    The reasoning in Stapleton should not be relied on to identify relevant criteria where specific statutory powers are available and were invoked: [148], [156]. The Court does not have the power to impose conditions on experts as to the manner in which they carry out an expert examination. Having regard to the terms of UCPR, r 23.4 and r 23.5, the scope for limiting the circumstances and manner in which a medical examination is performed must be confined: [149], [156]-[157].

Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 not followed, JKZ v The Scots College [2010] NSWSC 104 at [133]-[143] not followed, Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425 not followed, Prescott v Bulldog Tools Ltd [1981] 3 All ER 869 distinguished; McGuirk v University of New South Wales [2010] NSWCA 104 at [133]-[143] considered.

JUDGMENT

1. MITCHELMORE JA: I agree with the orders proposed by Stern JA and with her Honour’s reasons.

2. STERN JA: By summons filed on 4 May 2023 amended with leave on 9 June 2023, the applicant (the State) seeks leave to appeal from a decision of the primary judge delivered on 6 March 2023:

1. dismissing a notice of motion filed by the applicant on 17 October 2022 and amended during the hearing seeking, relevantly, an order that the respondent (Mr Hollingsworth, the plaintiff in the proceedings) attend an examination with Dr Lisa Brown (psychiatrist) in person, with the option to bring a support person other than his spouse, adult child, lawyer or medico-legal practitioner, and without recording the examination by audio or visual means; and

2. so far as is relevant to this application, ordered, purportedly pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Sch 7, cl 5(c), that any expert forensic psychiatrist appointed by the State to examine Mr Hollingsworth be directed to permit him to make a sound recording of the entire assessment session, on the proviso that he would then provide that expert with a full copy of the recording if requested to do so, and that 24 hours before an appointed examination, any forensic psychiatrist appointed by the State be directed to provide to the solicitors for both the State and Mr Hollingsworth a written undertaking to abide by that direction concerning the recording of assessment sessions (the Orders).

3. Leave is required pursuant to s 127(2)(a) of the District Court Act 1973 (NSW), given the interlocutory nature of his Honour’s decision.

4. By amended draft notice of appeal filed in this Court on 9 June 2023, the State seeks that, in lieu of such Orders, there should be an order that Mr Hollingsworth attend an appointment with Dr Lisa Brown or with any other suitably qualified psychiatrist and that Mr Hollingsworth not be permitted to make an audio or audio-visual recording of that appointment in the absence of consent from Dr Brown or that other suitably qualified psychiatrist. It is apparent from the orders sought by the State that the previous order relating to who would be permitted to accompany Mr Hollingsworth to an examination by Dr Brown is no longer pressed.

5. The application for leave was heard concurrently with any appeal.

6. It is common ground that the primary judge’s decision was discretionary and that the State thus needs to establish an error in the nature of that identified in House v The King (1936) 55 CLR 499 at 504-5 (Dixon J (as his Honour then was) Evatt and McTiernan JJ); [1936] HCA 40 to warrant appellate intervention. Further, as this application relates to an interlocutory decision on a matter of practice and procedure, the State must confront the well-recognised reluctance of appellate courts to review matters of practice and procedure (see Adam P Brown Male Fashions Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ); [1981] HCA 39.

7. In this case, for the reasons set out below, leave to appeal should be granted and the appeal allowed. In place of the orders made by the primary judge, pursuant to UCPR, r 23.4 Mr Hollingsworth is directed to submit to an assessment by a suitably qualified psychiatrist of the State’s choice irrespective of whether that expert permits him to record the assessment by audio or audio-visual means.

The Notice of Appeal

8. By amended draft notice of appeal filed 9 June 2023, the State raises two grounds:

1. The primary judge erred in the exercise of his discretion by ordering that any forensic psychiatrist appointed by the State is directed to permit Mr Hollingsworth to make a sound recording of the entire assessment session, and that, 24 hours before an appointed examination, any forensic psychiatrist appointed by the State to examine Mr Hollingsworth provide to the State’s solicitor a written undertaking to abide by that direction, by failing to take into account relevant material considerations and taking into account irrelevant considerations; and

2. The primary judge should have made an order pursuant to UCPR, r 23.4 directing Mr Hollingsworth to attend an appointment on a convenient date with Dr Lisa Brown, psychiatrist and that Mr Hollingsworth not be permitted to make an audio-visual recording of that appointment in the absence of consent from Dr Brown.

9. These grounds, in effect, reflect one challenge to the primary judge’s exercise of discretion, namely that the primary judge’s discretion miscarried in that his Honour failed to take into account a mandatory relevant consideration or took into account a mandatory irrelevant consideration. Having regard to the State’s written and oral submissions, it is apparent that the following matters are relied upon in support of that ground:

1. That the primary judge erred in making the Orders pursuant to UCPR, Sch 7, cl 5(c), as that provision did not provide any lawful authority to give such a direction to a medical practitioner instructed by a party to litigation to prepare an expert’s report.

2. That the primary judge failed in his dispositive reasoning at [198]-[234] to take into account the State’s right, as a matter of procedural fairness, to instruct a psychiatrist of its choice, as opposed merely to a suitably qualified psychiatrist. In this regard, the State relied upon the decision of the English Court of Appeal in Starr v National Coal Board [1977] 1 All ER 243 where a question arose as to whether it was in the interests of justice to stay a proceeding on the basis of a plaintiff’s refusal to submit to a medical examination by the defendant’s medical expert of choice. In such a case, Scarman LJ identified that a defendant has a right “to defend himself in the litigation as he and his advisers think fit; and this is a right which includes the freedom to choose the witnesses that he will call. It is particularly important that a defendant should be able to choose his own expert witnesses, if the case be one in which expert witness testimony is significant” (at 249).

3. That at [209] and [230] the primary judge erred in finding that Mr Hollingsworth had a “right” to record his attendance on Dr Brown when properly analysed he had no such right, including by reason of s 7 of the Surveillance Devices Act 2007 (NSW).

4. That at [176]-[184] the primary judge erroneously considered that the Disability Discrimination Act 1992 (Cth) (DDA) weighed in favour of the Orders made by the primary judge when in truth that legislation did not apply in the manner found by the primary judge.

5. That at [148]-[150] the primary judge erred in having regard to orders which were not ultimately pressed on the motion.

6. That at [152] the primary judge made a baseless finding as to the presence of an unskilled stranger hindering and inhibiting the process of disclosure and description at an attendance on a forensic psychiatrist conducting a medico-legal examination.

7. That at [186], [190], [197] and [217] the primary judge erroneously characterised Dr Brown’s concerns, underlying her decision not to permit her consultation with Mr Hollingsworth to be recorded, as speculative when that conclusion was unsupported by the evidence and that at [228] the primary judge erroneously concluded that an expert witness who declined to be bound by a direction under UCPR, cl 5(c) of Sch 7 was, by definition, not a suitable expert to provide expert evidence in this matter.

8. That at [161]-[164], the primary judge erroneously relied upon his Honour’s view that it would be in the interests of justice for there to be an accurate record of the content of Mr Hollingsworth’s attendance on an expert psychiatrist when that was not relevant to the issue to be determined.

9. That the primary judge took into an account an irrelevant consideration in that his Honour asked himself the wrong question. More particularly, that in the primary judge’s dispositive reasoning at [188]-[197] the primary judge had regard to his Honour’s preference for the views of Professor Greenberg and Dr Metelerkamp over the views of Dr Brown when, properly directing himself, the primary judge should instead have asked himself whether or not the position of Dr Brown was unreasonable.

The proceedings in the District Court

10. At the time of the hearing of this appeal, the substantive proceedings in the District Court was listed to commence on 19 June 2023 with a time estimate of 4 weeks.

11. On 14 June 2023, the solicitors for the State notified the Court (with consent of Mr Hollingsworth’s representatives) that the District Court had vacated the hearing date of the proceedings with no further hearing date listed.

12. The proceedings involve a claim by Mr Hollingsworth for alleged false imprisonment, assault and battery arising out of an incident on 18 January 2018 in which he was arrested and taken into custody. He claims that he was released some five and a half hours later, without charge. Mr Hollingsworth was himself formerly a police officer in the NSW Police Force. He was retired from such duties on medical grounds due to post-traumatic stress disorder (PTSD) suffered by reason of his work as a police officer. Mr Hollingsworth alleges in the primary proceedings that the police officers who arrested him on 18 January 2018 came to his home with knowledge of his pre-existing PTSD condition.

10. His claim includes a claim for damages including for a claimed exacerbation of pre-existing PTSD along with a claimed decline in his mental health. He also claims compensatory, aggravated and exemplary damages.

11. As is readily apparent from the summary set out above, the evidence of expert psychiatrists is likely to be of central importance in the primary proceedings on at least the questions of causation, the nature and extent of any injury, and on the issue of loss and damage. It necessarily follows as a matter of procedural fairness, that both Mr Hollingsworth and the State are entitled to a reasonable opportunity to obtain and rely upon such evidence in support of their respective cases (see, eg KF v Royal Alexandra Hospital for Children [2010] NSWSC 891 at [46] (Johnson J)).

12. Beyond this, the matters alleged in the underlying proceedings are not relevant for the purposes of the issues in this application.

Background to the State’s Notice of Motion

16. As set out above, the incident the subject of the primary proceedings occurred on 18 January 2018. Mr Hollingsworth’s Statement of Claim was filed on 18 January 2021.

17. In support of his claims, Mr Hollingsworth relies upon a report dated 26 July 2021 from Professor Alexander McFarlane AO which was summarised by the primary judge at [88]-[93]. In his report, Professor McFarlane describes himself as being “recognised as an international expert in the field of the effects of traumatic stress in a series of domains”. Having regard to Professor McFarlane’s CV, it is apparent that he is a highly distinguished and experienced psychiatrist with particular expertise in PTSD. In the summary of his report, Professor McFarlane sets out his opinion that “Mr Hollingsworth’s false arrest and wrongful imprisonment have had an enduring impact because he has been left with an enduring sense of betrayal and a profound sense of injustice. Hence, the incident that occurred on 19 January 2018 [sic], has led to a significant exacerbation of his condition, which has had a major impact on his general quality of life.”

18. At [93] the primary judge inferred, on the basis of Professor McFarlane’s report, that:

“the plaintiff has genuine anxieties and concerns over the need for him to make himself available for medical assessments in the adversarial setting such as in the present litigation, without the reassurance of an available factual record in the form of an audio recording as a protective reference resource for himself and his lawyers.”

19. Professor McFarlane indicates in his report that his interview of Mr Hollingsworth for the purpose of preparing his report lasted for 3 hours. During this hearing, in response to a question from the Court, counsel for Mr Hollingsworth informed the Court that Mr Hollingsworth did not record this interview by audio or audio-visual means.

20. On 13 August 2021 solicitors for the State wrote to Mr Hollingsworth’s solicitors advising that the State had arranged for Mr Hollingsworth to be examined by Dr Apler, psychiatrist, on 22 February 2022. By correspondence from his solicitors dated 13 September 2021, Mr Hollingsworth advised of his intention to be accompanied by his wife to his attendance on Dr Apler, and to “[r]ecord both visually and by audio, Dr Apler’s assessment”. The State was asked to confirm that “there is no objection to the above within seven (7) days”.

21. When asked to identify the basis upon which Mr Hollingsworth was entitled to record the assessment by Dr Apler, solicitors for Mr Hollingsworth responded by letter dated 7 October 2021 that recording of the assessment interview is a “cost-effective alternative to live attendance [by a medical expert under UCPR, r 23.5] and equally benefits the defendant” and identified that the State and the Commissioner of Police had used electronic recording of interviews “both to preserve evidence including relevant non-verbal communication and to avoid, possibly spurious and sometimes legitimate, claims of ‘verballing’” and observed that “recording of the defendant’s medical assessments by AVL will provide similar protection to both parties in litigation and their experts”.

22. Dr Apler’s response to Mr Hollingsworth’s request was set out in a letter dated 25 October 2021. He wrote that:

“I have never made an electronic recording of my interviews, and I do not allow my interviewees to make electronic records either. I consider that the presence of electronic recording devices has the potential to adversely affect the interview.

I make recordings using pen and paper, and the interviewees are welcome to similarly record the interview should they choose to do so.”

23. By letter dated 10 December 2021 to Mr Hollingsworth’s solicitor, the State’s solicitor communicated that the request to have Mr Hollingsworth’s wife accompany him to Dr Apler’s assessment was consented to but the request to have the assessment recorded both visually and by audio was not consented to.

24. Mr Hollingsworth’s solicitor inadvertently failed to notify the State’s solicitor of Mr Hollingsworth’s position in the light of this correspondence. Thus, the scheduled appointment was maintained and Mr Hollingsworth attended an assessment by Dr Apler on 22 February 2022. In a letter of the same date, Dr Apler recorded that Mr Hollingsworth proceeded to record the interview on his phone as soon as he entered Dr Apler’s office, and that he continued to record even after Dr Apler told Mr Hollingsworth that he did not give permission for the interview to be digitally recorded. Dr Apler indicated that he would record with pen and paper and that he was happy to give writing materials to Mr Hollingsworth’s wife so that she could also record the interview. Mr Hollingsworth refused this suggestion. As Mr Hollingsworth would not agree to stop recording, the interview was terminated.

25. There was no evidence before the primary judge as to what if any letter of instruction was given to Dr Apler in advance of this assessment, nor (save as is set out above) as to what information Dr Apler was given by Mr Hollingsworth.

26. Following this, on 23 February 2022, Mr Hollingsworth’s solicitors wrote to the State’s solicitor setting out that at the time of Mr Hollingsworth’s attendance on Dr Apler, Mr Hollingsworth was experiencing symptoms of PTSD triggered by places that he passed on his route to attend the appointment. In this letter it was stated that Mr Hollingsworth “will record any assessment and continues to be happy to provide a copy for your client’s use on your undertaking that it not be used or disclosed otherwise than for the purpose of proceedings”. In a further letter to the State’s solicitors dated 4 April 2022, Mr Hollingsworth’s solicitors reiterated that travel to attend Dr Apler had exposed Mr Hollingsworth to triggering traffic events “as did Dr Apler’s confrontational refusal to permit recording of the examination.”

27. The State then made arrangements for Mr Hollingsworth to attend an assessment by Dr Brown, forensic psychiatrist, to take place on 23 August 2022. Again, Mr Hollingsworth (through his solicitors) insisted that either the assessment be by AVL or if it was to be an in person attendance, that it was electronically recorded. By letter dated 11 July 2022 the State’s solicitors conveyed Dr Brown’s position that Dr Brown conducts all her examinations in person as she considers that this “best serves” the assessment, evaluation and diagnosis of mental illness, emotional and behavioural disorders. Further, that whilst she was content for a support person to be present, that person could not be a spouse, adult child, medico-legal doctor or lawyer (that latter condition was not pressed by the State before the primary judge). Dr Brown’s position was that compliance with Mr Hollingsworth’s requirements would “have a deleterious effect on her examination”.

28. By letter dated 11 August 2022 Mr Hollingsworth’s solicitors responded that Mr Hollingsworth was content to attend on Dr Brown in person, with a support person other than his wife, but that he intended to “record the appointment”.

29. By letter dated 17 August 2022 the State’s solicitors indicated that they had made enquiries with five psychiatrists (other than Dr Apler and Dr Brown) as to whether they would be willing to have their assessment of a patient recorded (these were Dr Michael Diamond, Dr Samson Roberts, Dr Wayne Mason, Dr Melissa Barrett and Dr Enrico Parmegiani). All five refused to proceed on that basis. There was no evidence before the primary judge as to what those individuals were told for the purpose of these enquiries.

30. Given Mr Hollingsworth’s position, the State cancelled the scheduled assessment by Dr Brown.

31. On 17 October 2022, the State filed the notice of motion, so far as is relevant seeking orders that:

1. The plaintiff to attend an examination by Dr Lisa Brown (psychiatrist) pursuant to rule 23.4 of the UCPR:

(a)    in person;

(b)    with the option to bring a support person other than his spouse, adult child, lawyer or medicolegal practitioner; and

(c)    without recording the examination in any form.

…

4.    That the plaintiff pay the State of New South Wales’ costs of and incidental to this motion.

32. On 3 November 2022 the motion was listed for hearing on 23 February 2023. On the first day of the hearing, counsel for the State confirmed that “the only matter at issue is an examination of Dr Brown on the condition of there being no recording in any form”, being order 1(c) sought in the notice of motion. Further, counsel for the State confirmed that the State did not press 1 as set out in the notice of motion, but instead pressed an amended form of order, namely that:

“the plaintiff to attend an examination by Dr Lisa Brown (psychiatrist) pursuant to rule 23.4 of the UCPR without recording the examination by audio or visual means”.

Developments between the motion being filed and the hearing before the primary judge

33. As recorded by the primary judge at [48], by letter dated 15 November 2022 to the State’s solicitors, sent to Mr Hollingsworth’s solicitors on 17 November 2022, Dr Brown explained her position:

“With respect to the cancellation of an assessment regarding this plaintiff booked for 23 August 2022 I understand that Mr Hollingsworth declined to attend unless the assessment could be recorded.

I am unwilling to agree to a recording on the basis of a number of concerns about effects on the interview itself, clinical effects on Mr Hollingsworth’s psychological state and administrative/legal issues.

Individuals who request recording of a medico-legal assessment usually have either a paranoid condition, arising from a mental illness such as psychosis or, alternatively, are affected by a high level of interpersonal sensitivity, secondary to previous trauma or underlying personality vulnerabilities.

An insistence on recording the interview introduces a hostile element into the assessment and adversely effects the development of rapport. Developing rapport is extremely important as part of eliciting disclosure of personal details, a number of which may be relevant to a plaintiffs claim but which they may not wish to place on electronic record. There is an associated loss of opportunity to handle sensitive material during the discussion and to prepare a written report which accommodates information of this type. Recording introduces a formal aspect to the assessment and which is not conducive to frank disclosure.

In addition to concerns about the changed nature of the interview process the possibility of clinical worsening arises if the claimant has access to the recording and listens to it repeatedly. This is particularly relevant for individuals who suffer from Post Traumatic Stress Disorder, given that the interview itself is often perceived as stressful whereas repeated exposure to the recording can have damaging psychological effects.

An individual who has a high level of interpersonal sensitivity will often not accept the findings of a written report and an outcome of this type is more likely in the situation of having the opportunity to dissect a recording and to potentially take out of context words, phrases or sentences. In this regard, a recording lacks the nuances which contextualise the asking of questions, Including non-verbal cues and gestures. Valuable information associated with the interpretation of non-verbal aspects of the interview renders any recording an incomplete perspective of the assessment

Once a recording is made available to a plaintiff the expert loses control over its ownership and to whom it may be disseminated. In the current cultural climate recordings may be uploaded to the internet and widely circulated on social media, potentially damaging the reputation of the expert who has no right of reply.

I am both a treating psychiatrist and a psychiatric medical expert who has undertaken assessments and provided reports of this type for over 25 years. My approach to this type of request is to offer for a support person to attend the interview. An appropriate support person, who is not a close relative and who does not have a legal role in the matter, provides comfort and support to the interviewee. The plaintiff who attends with a trusted support person receives reassurance not only from their presence during the interview but also before and after the assessment.

I decline to undertake an assessment of Mr Hollingsworth which is recorded because it will interfere and/or impede my assessment.

I have attached two relevant articles, including the Royal Australian and New Zealand College of Psychiatry Guidelines for undertaking medico-legal assessments. The Guidelines note at 5.2.4 that psychiatrists are free to decline requests for recording of medico-legal assessments. The Guidelines at 5.27 indicate that psychiatrists should carefully consider the appropriateness of conducting such assessments in any specific case. An article which deals with the more common modern situation of covert recordings being made of assessments. The latter article nonetheless contains some pertinent concerns about the recording process, including the potential for either a sound recording or transcript to be interpreted out of context.”

34. The Royal Australian and New Zealand College of Psychiatry, Professional Guideline 11: Developing Reports and Conducting Independent Examinations in Medico-Legal Settings (November 2020), referred to by Dr Brown, was attached to her letter. This provided, relevantly:

“[5.2.4]: A person may request that the assessment be recorded using an audio-visual device. Psychiatrists should be aware of the legal requirements which apply in their local jurisdiction in relation to such requests and are free to decline. The recording of the interview should be disclosed in the report.”

“[5.2.7]: Assessments may be conducted by way of videoconference technology. On rare occasions, where no other means is available, telephone assessments (in the absence of video) may be conducted. Psychiatrists should carefully consider the appropriateness of conducting such assessments in any specific case. When such modes of assessment are used, that fact must be documented in the report, along with any technical issues that may have affected the quality of the assessment."

35. The article by Michael J Gross et al, entitled “The Covert Recording of Medico-Legal Consultations” (2018) 84(6) Medico-Legal Journal 202, attached to this letter, identified that within a medico-legal assessment the formal process of discussion and examination is only part of the process of observation, that recording and transcript may omit important information such as uncertainty of eye contact, unkempt clothing, poor hygiene, distress, nervous hand movement or panic and that in the interpretation of a sound recording or typescript “statements can be readily taken out of context, since their full and open communicative context is absent” (at 204).

36. As acknowledged by Dr Brown in her letter of 15 November 2022, that article dealt with the situation of covert recordings of medical assessments. The primary judge at [52] described the article as being “of limited relevance” on that basis.

37. The evidence before the primary judge was that Dr Brown was not briefed with any letter or document of instruction in relation to her letter. Further, as the primary judge observed at [50], whilst there must have been some form of verbal communication between the solicitors for the State and Dr Brown which prompted her letter of 15 November 2022, there was no evidence before the primary judge as to the nature or content of such communication.

38. By letter dated 18 November 2022, Mr Hollingsworth’s solicitors offered the following undertakings (the Undertakings) “to allay Dr Brown’s concerns”:

“(1)    the copy of the recording taken by or provided to the plaintiff will be held by our office not the plaintiff personally;

(2)    the recording will be played to the plaintiff only to the extent necessary to obtain his instructions, or medico-legal opinion, and psychological support will be arranged for the plaintiff in this regard;

(3)   the use and dissemination of the recording will be limited to these proceedings including any appeal (this is to be a reciprocal undertaking with the defendant) and counsel or any expert will only be instructed with the recording on giving the same undertaking. Dr Brown personally may take action to restrain any actual or apprehended breach of this undertaking without the necessity to prove damage;

(4)    the recording will be a video recording so that any pertinent non-verbal clues and gestures will be recorded – in this respect the video may be of the plaintiff only or both of them, whichever Dr Brown prefers;

(5)   the defendant will be provided with a complete and unedited copy of the video for its use in these proceedings only (including any appeal).

39. By letter dated 15 December 2022 the State’s solicitors informed Mr Hollingsworth’s solicitors that Dr Brown had considered the undertakings offered by Mr Hollingsworth and maintained her objection to the recording of the interview.

40. Mr Hollingsworth’s position as to recording of any assessment by an expert forensic psychiatrist instructed by the State was succinctly stated in his affidavit sworn on 10 February 2023, extracted by the primary judge at [78] and [81]:

“11. As a former police officer, I am very used to conducting recorded interviews (it is very normal to me) and I understand that audiovisual recording provides protection for both parties against misunderstanding and allegations of ‘verballing’ and is an important tool for accurately recording questions and answers. The protection of having a recorded interview makes me feel calmer about participating in an interview and I feel it will allow me to concentrate on the questions I am asked and give the most efficient and correct responses in the knowledge that if I do forget something that can be noted later and l can supply a correction if needs be.

12. Without the option to have the interview recorded, I believe I would be increasingly anxious before, during and after the interview worrying that I will make a mistake or that my words will be misinterpreted or incorrectly noted. I believe I will be able to give my lawyers some examples but not a full and accurate report of what is said or missed out of a long interview. I do not feel capable of taking sufficient handwritten or typed notes at the same time as the interview as I would feel rushed and distracted.

13. Thinking about participating in an interview that is not recorded makes me feel stressed, anxious and frustrated. I expect I will need to take Ativan medication before the interview to cope with the feelings (I expect my anxiety levels would "go through the roof”) but that this may also adversely my participation. I feel like my disability is not being taken seriously. …

15. Learning that Dr Brown objects to having the interview recorded makes me more fearful and anxious about attending as I worry that I will not be able to give a full and proper account of my experiences and that I may be misunderstood or misreported.

16. Rather than being faced with the task of going through medical reports and recalling what was said to give my lawyers proper instructions, I would prefer that my lawyers could just refer to a recording to ensure anything legally relevant is addressed with the defendant and its doctors.

17. I have offered Dr Brown an undertaking that I will only use a recording for the purposes of my proceedings and will not otherwise use or disclose the recording publicly to embarrass her in some way.

18. If the phone recording is in some way technologically insufficient for Dr Brown I am happy to use other recording facilities.”

41. There was no issue before the primary judge, nor before this Court, as to the reasonableness of Mr Hollingsworth’s position in this regard.

42. Shortly prior to the hearing of the State’s motion, on 20 February 2023, Mr Hollingsworth served a report from Professor Neil Greenberg. Dr Brown was not in a position to respond to this evidence in writing in advance of the hearing, albeit that, as observed by the primary judge at [58], there was no evidence as to whether or not Dr Brown in fact provided any oral or written commentary to the State’s solicitors in respect of Professor Greenberg’s report.

43. The letter to Professor Greenberg, dated 9 February 2023, instructed him to “provide a short report in response to Dr Brown’s report on the issue of whether recording a medico-legal psychiatric examination in this case would impair or prevent a fair medical assessment.” For that purpose, he was asked to read the report of Professor McFarlane, Dr Brown’s letter, the expert witness code of conduct and a two-page set of assumptions prepared by Mr Hollingsworth’s solicitors, the content of which included some of the matters relied upon by Mr Hollingsworth in his affidavit, set out above at [40].

44. Professor Greenberg’s report, dated 18 February 2023, relies upon the documents set out above together with guidance from the British Medical Association dated 2 June 2021 as to “Patients recording consultations”. That guidance provided as follows:

“We encourage doctors to support patient requests to record their consultations. Although we encourage doctors to enable patients to take recordings, we understand some doctors may find it intrusive. They may feel that it undermines trust and changes the nature of the doctor-patient relationship. They may also be concerned that patients will use recordings for potential complaints or litigation. If you have concerns you should sensitively explore the reasons the patient wants to make the recording to allay any concerns you may have. Most people want to record consultations so that they can listen to them when they have more time and are in a more relaxed setting, or so that they can share and discuss the information provided with family and friends.

We recognise that in exceptional circumstances, some patients may use recordings to pursue a complaint or a legal claim against a doctor. In our view, where doctors are acting professionally, they should have nothing to fear. Keeping clear and accurate records of clinically relevant information is a staple of good medical practice. Medical defence organisations suggest that where legal cases arise, most recordings actually support the actions of doctors.”

45. The primary judge summarised the most relevant parts of Professor Greenberg’s report (footnotes omitted):

“[98]    Specifically, Professor Greenberg identified his disagreement with Dr Brown’s position on the matter of audio recording of interviews in the following terms:

‘6.3. I note that Dr Brown objects to Mr Hollingsworth recording her interview with him on the basis of a. the effects on the interview itself; b. the clinical effects on Mr Hollingsworth’s psychological state and c. administrative/legal issues. She notes that individuals who request recording medico-legal assessments usually either have a paranoid condition arising from a condition such as psychosis or are affected by a high level of interpersonal sensitivity, secondary to previous trauma or underlying personality vulnerabilities. I am unclear on what basis she forms this view. I have included some recent (2021) information from the British Medical Association does not suggest this is the case at all and I have not been able to find any recent relevant scientific publications which would support this view, in my experience of having a number of patients who have requested their interviews to be recorded, none were psychotic and none had paranoid personality traits that I identified. Some had a past history of trauma but this did not appear to be directly relevant to their desire to record the interview.

6.4. Dr Brown’s view is that requesting a recording introduces a hostile element into the assessment which adversely affects the development of rapport. Once again, this is not the view of the British Medical Association and nor is it my view. I note that one 2003 paper published in the Journal of the Royal Society of Medicine suggests that up to 80% of information provided by healthcare professionals is “forgotten immediately”. It is clear from the information I have seen that Mr Hollingsworth is worried about forgetting information discussed during a medicolegal assessment. In addition, his distrust of the police, and anyone he considers is associated with the police, is likely to mean that he will be distressed during a medicolegal assessment which is, in turn, likely to impair his ability to recall what he, or the assessing clinician, says. In my view, it is more likely that a clinician accepting that an interview can be recorded would improve rapport rather than adversely affect the development of it.

6.5. Dr Brown also notes that people who request recording an interview may be reluctant to disclose personal details; in my view this is a risk with any medicolegal assessment whether or not it is recorded.

6.6. Dr Brown also felt that recording may cause clinical deterioration if the Claimant listens to it repeatedly. She felt this was particularly relevant for people who have PTSD. Whilst this is a risk, given the strong distrust that Mr Hollingsworth has of the police and his concerns that he will not be treated fairly, it can equally be argued that not allowing him to record a medicolegal interview could also cause a clinical deterioration. However, what is clear to me is that Mr Hollingsworth is keen to record the interview to help him remember what was said and to help him subsequently discuss his case with his legal advisors; both of these desired outcomes are likely to reduce his distress rather than increase it. Additionally, if Dr Brown was concerned, perhaps on the basis of clinical information she has seen that I have not, about the risk of clinical deterioration, then she could mitigate that risk by writing about it to his treating clinicians or ask for Mr Hollingsworth to discuss the risk of deterioration with his treating clinicians and to then provide her with a letter confirming that he had done so.

6.7. Dr Brown also noted that people with a high level of interpersonal sensitivity will often not accept findings of a written report which would be more likely if they 'dissect a recording and to potentially take out of context words, phrases or sentences'. In my view, having an accurate record of what was, and was not, said is likely to help reduce misunderstandings rather than exaggerate them.

6.8. I also note that Dr Brown was concerned that once a recording is made, the expert loses control over its ownership and it might be uploaded to the internet and widely circulated on social media. However, I note that Mr Hollingsworth has given his assurance that any recording will only be for his personal use.

6.9. Overall, whilst noting Dr Brown’s misgivings, and her right not to carry out a medico-legal assessment that is recorded if she does not want to, it is my view that recording a medico-legal psychiatric examination in this case would not impair or prevent a fair medical assessment. In fact, in my view given Mr Hollingsworth’s strong desire to have the interview recorded, his clearly stated mistrust of the police and people he considers associated with them [which is very likely to include healthcare staff who are instructed to prepare reports by the NSWPF even though such professionals are required to express their independent view], and his reported poor concentration [which in turn infers that his memory will be poor] it is more likely than not that allowing him to record the interview would help, rather than hinder, him form a rapport with the assessing clinician which as Dr Brown notes is an important pre-requisite for an effective clinical interview.”

[99]    Professor Greenberg referred to a journal article concerning the propensity for patients not to reliably recall all matters discussed in medical consultations: Kessels, RP; Patient’s memory for medical information: Journal of the Royal Society for Medicine, May 2003, 96(5); 219-222. That citation has particular relevance to the plaintiff’s PTSD condition, and the effect his PTSD condition has on his cognitive processes when stressed. It is therefore relevant to the consideration of whether the plaintiff should be permitted to record the proposed medico-legal assessment with the defendant’s forensic psychiatrist.”

46. On 22 February 2023, Mr Hollingsworth also served a report dated 22 February 2023 from his treating psychologist, Dr Toni Metelerkamp. Dr Metelerkamp was briefed with the same assumptions that were briefed to Professor Greenberg, Professor McFarlane’s report, and the expert witness code of conduct. Dr Metelerkamp was asked to provide “a short report in response to Dr Brown’s report on the issues of whether recording a medico-legal psychiatric examination in this case would impair or prevent a fair medical assessment and what if any impact would there be on Mr Hollingsworth if he was forced to undertake a medical assessment in circumstances where he was not able to have such assessment recorded in any form”.

47. As to Dr Brown’s identification of the usual characteristics of individuals who seek to record consultations, Dr Metelerkamp said that Mr Hollingsworth had not, in her experience, demonstrated or described psychotic symptoms but that “assuming Dr Lisa Brown was aware of Mr Hollingsworth’s diagnosis, his trauma history, and probable ‘high level of interpersonal sensitivity’ would be a reasonable assumption”.

48. Dr Metelerkamp considered that recordings by mutual agreement “do not necessarily introduce a hostile environment or damage rapport”, that Mr Hollingsworth “did not appear to feel he would need to censor or moderate his responses based on the recording”, and that replaying a recording is “likely only if an individual receives a report where they feel the assessor selectively reported information. The constant replaying of a recording is not a given and indicates a more serious mental health condition than trying to establish accuracy and accountability”.

49. Further, as set out by the primary judge at [86], Dr Metelerkamp added:

“Mr Hollingsworth will likely be more anxious, less frank and have difficulty establishing rapport if the assessor declines a request to record the assessment. Consequently, Mr Hollingsworth is less likely to have his PTSD symptoms triggered if assessed by an assessor willing to record the assessment, assuming agreed terms of use for the recording post-assessment.”

50. There were then five further developments shortly before or during the hearing before the primary judge.

51. First, in a conversation on 22 February 2023, Dr Brown was asked by Ms Gracie, a solicitor engaged by the State, whether she was aware of the expert witness code of conduct, whether she prepared her report (a reference to her 15 November 2022 letter) with the code of conduct in mind, and whether she abided by the code of conduct. Dr Brown responded in the affirmative to each of those questions.

52. The primary judge at [60] rejected this as an “after the event bootstrap method by which, through hearsay, the defendant’s solicitor attempted to obtain Dr Brown’s confirmation that she had complied with the expert’s Code of Conduct”. On that basis, the primary judge concluded that Dr Brown’s letter of 15 November 2022 should be given “little weight on matters in contention in the present application”.

53. Second, as set out by the primary judge at [26]-[29], during the first day of the hearing, 23 February 2023, the primary judge asked that Dr Brown consider and answer the question “whether, if the Court gave Dr Brown a direction pursuant to UCPR Sch 7, cl 5(c), so as to require her to allow the plaintiff to record her interview with him, would she proceed with the interview in those circumstances?” As recorded at [29], Dr Brown’s response was “a definite ‘No’.”

54. Third, on the first day of the hearing, Ms Roberts, one of the solicitors for the State, contacted a number of psychiatrists “regarded as suitably experienced to be a medico-legal expert in this matter for the defendant” to ascertain whether they would agree to examine the plaintiff and permit that examination to be recorded, “assuming that there was a court order that to do so was consistent with section 5(c) of the Expert Witness Code of Conduct”.

55. In an affidavit filed on 24 February 2023 Ms Roberts set out that she (or Ms Gracie, another solicitor for the State) contacted the rooms of a number of psychiatrists. Two of the psychiatrists that she contacted did not have availability to undertake an assessment of Mr Hollingsworth. Two did not return her call. Two were said to be unlikely to agree to recording of an attendance on the basis of past refusals. Three indicated that they would not comply with an order that an assessment be recorded. Further, the MedHealth Group (within which one of the psychiatrists worked) indicated (through its Director of Governance, Privacy Officer and Company Secretary) that it had a “policy across the board” not to consent to a plaintiff recording a medico-legal examination.

56. Fourth, as recorded by the primary judge at [69], during the hearing his Honour was informed that “there were many College accredited expert forensic psychiatrists in Australia, in the order of 100 such specialists”. This appears to be a reference to a statement from the bar table that reference to the Royal Australian New Zealand College of Psychiatrists “Find a psychiatrist” facility on-line and searches using the condition “PTSD” one gets 111 psychiatrists who are willing to conduct on-line consultations: (Tcpt, 24 February 2023, p 2(47)-3(10)). On that basis, the primary judge stated at [69] that “the limited number who were contacted could hardly be described as being representative of all of those specialists”.

57. Fifth, during the hearing there was some suggestion that the State could seek to instruct Professor Greenberg as its expert in the primary proceedings. However, Senior Counsel for the State informed this Court that the State was not pursuing this possibility.

The primary judgment

58. Having regard to the matters in issue before this Court it is unnecessary to rehearse the detail of the primary judge’s lengthy judgment. A summary of the primary judge’s dispositive reasoning (so far as is presently relevant), is set out below.

1. First, the primary judge found that the resolution of the dispute before him required that a balance be struck “between the respective rights, entitlements, and the procedural obligations of the parties, and the rights and responsibilities of a forensic medical examiner appointed by the defendant to examine the plaintiff” giving due regard to ss 56 and 58 of the Civil Procedure Act 2005 (NSW) (CPA): [101]-[102]. Ultimately, the decision had to be made in accordance with the dictates of justice: [117] & [139]-[140].

2. Second, the primary judge rejected the State’s reliance upon the danger of a recording of an attendance on the forensic psychiatrist being distributed or used “for some nefarious or other purpose that is extraneous to litigation” having regard to procedural safeguards in place to ensure the proper handling of confidential material in the course of litigation and Mr Hollingsworth’s uncontradicted evidence that he knew the limits of use and his willingness to give the Undertakings: [122]-[125].

3. Third, notwithstanding that, as set out at [32] above, order 1(b) was not pressed on the motion and order 1(c) was pressed in an amended form, the primary judge considered the terms of orders 1(b) and (c) as set out in the State’s notice of motion: [144]-[150]. As to these two proposed orders, the primary judge concluded at [150] that the orders sought were “unreasonable, and therefore unacceptable when viewed from the perspective of the dictates of justice”.

4. Fourth, the primary judge considered the reasonableness of Mr Hollingsworth’s request for recording and concluded that Mr Hollingsworth’s position was reasonable, that his lack of trust in adversarial medico-legal assessments needed to be accommodated and reasonable adjustments made to accommodate his cognitive difficulties which were likely to become manifest in a psychiatric assessment at the request of the State: [155]-[160]. His Honour found that it would be unreasonable to expect Mr Hollingsworth to achieve and maintain proficient note-taking and that would “most likely have the tendency to hinder the flow of the interview”: [165].

5. Fifth, the primary judge concluded that it would be in the interests of all parties, and would serve the dictates of justice, for there to be an accurate record of what was asked of and said by Mr Hollingsworth at his attendance on a psychiatrist instructed by the State, having regard to the experience in personal injury litigation where disputes commonly occur as to the factual basis for opinions expressed by medico-legal experts: [161]-[164].

6. Sixth, the primary judge identified that provisions in section 5 of the Civil Trials Bench Book, dealing with the needs of people with disabilities in the context of civil trials, should apply also to steps taken by parties and medico-legal experts in the preparatory stages of litigation, and thus extend to orders made by courts providing for medical examinations: [166]-[170]. Further, the primary judge found that it was just that reasonable and proper adjustment steps be taken in this case reflecting a trauma-informed approach to litigation, as reflected in guidance from the Judicial Commission of New South Wales entitled Trauma-informed courts: [171]-[174].

7. Seventh, in considering the dictates of justice the primary judge had regard to provisions of the DDA, in particular, the objects of the DDA in s 3, the prohibition on indirect discrimination in s 6 (erroneously described at [176] as s 5) and the prohibition on discrimination in s 24: [175]-[187]. It was the primary judge’s view that, absent acceptable justification, it would be discriminatory for the State to refuse to make reasonable adjustments to the requirement that Mr Hollingsworth submit to a medical examination, that such adjustments would include provision for Mr Hollingsworth making an audio-recording, and that in this case that would not cause unjustifiable hardship to the State: [178]. Further, his Honour concluded that it would be unlawful pursuant to s 24(1) of the DDA for a medical practitioner to discriminate against a person such as Mr Hollingsworth on the ground of his disability: [179].

8. Eighth, the primary judge considered the differing opinions of the experts. The primary judge found that Dr Brown’s opinion in support of her refusal to consent to Mr Hollingsworth’s attendance being recorded was not supported by any cogent reason that actually related to Mr Hollingsworth and “lacked the reasoned rigour required by UCPR r 31.27(1)(c) and Sch 7, cl 5(c)”: [189]. His Honour found that Dr Brown’s concerns were “speculative” and had “no foundation in the evidence”, thus, that they must be “discounted in determining the respective rights and entitlements of the parties in the present dispute”: [190]. By contrast, the primary judge accepted the reasonableness of Dr Metelerkamp’s commentary: [191], accepted Professor McFarlane’s opinion as to Mr Hollingsworth’s PTSD and its manifestations, and found that these “must be accommodated in the arrangements for adversarially-based medico-legal examinations in this case”: [192]. The primary judge also found that Professor Greenberg’s commentary on Dr Brown’s concerns was “both rational and convincing” and “comprehensive and compellingly persuasive” and that Professor Greenberg had “comprehensively identified sound reasons” why Dr Brown’s concerns “should be discounted in this case”: [194]-[196]; see also [216]-[218]. On the subject of the differing opinions of the experts, the primary judge concluded that the views of Dr Metelerkamp and Professor Greenberg “should be preferred to the unduly speculative views expressed by Dr Brown”: [197]; see also [215] & [219].

1. Ninth, as regards the State’s position on the issues before the primary judge, his Honour began by recognising that there was “no dispute as to the defendant’s right to require the plaintiff to submit to a medico-legal psychiatric examination for the purpose of obtaining an evidentiary opinion to assist in defending the plaintiff’s claim”: [198]. The primary judge then set out that the request for a recording would not of itself be burdensome on the State, that it would benefit the State to have a factually accurate record, and that the burden of finding a psychiatrist who was prepared to comply with a direction to permit an audio-recording of the interview with Mr Hollingsworth would not give rise to unreasonable or material prejudice for the State: [199]-[202].

2. The primary judge found that the perceptions and misgivings identified by Dr Apler and Dr Brown were “ill-founded” and were not a valid basis to refuse to permit an audio-recording of the psychiatric assessment: [204]-[205]; see also [219]-[220]. The primary judge also did not accept the State’s proposition that an expert forensic psychiatrist would be adversely affected or inhibited by reason of an interview being audio-recorded; [206], rejecting such concerns as being “based on unfounded speculation”: [221]. The primary judge found that the State’s concerns about possible misuse of a recording were “hypothetical and unpersuasive” in the absence of any reliable evidentiary basis and that there was “no persuasive basis for concluding that the plaintiff would misuse the recording” for example by uploading it only the internet: [221] & [227]. The primary judge found that knowledge that an interview would be recorded would, if anything, be “an aid to concentration” and “tend to promote rigour”: [207]; see also [225]. His Honour found that it “would be extraordinary and unreasonable for a party to litigation to insist on retaining an expert who would not be prepared to act in conformity with a direction made pursuant to cl 5(c) of the Code of Conduct”: [208]. An expert who declined to be bound by a direction under cl 5(c) would, according to the primary judge, “not be a suitable expert for the purpose of providing expert evidence in this case”: [228].

3. Finally, under the heading “[b]alancing the respective rights”, the primary judge found that “the relevant balance to be struck” was “the reasonable right of the plaintiff to have his case prepared and presented on just and fair terms that take into account and make reasonable adjustments for the effect of his disability in a non-discriminatory way, and the defendant’s reasonable right to a fair opportunity to defend the proceedings by means of engaging an appropriately qualified forensic psychiatrist to assess and examine the plaintiff for the purpose of obtaining an expert’s report”: [209]. His Honour concluded that he was satisfied as to the reasonableness of Mr Hollingsworth’s stance and that that stance should be appropriately reflected in an appropriate direction to be given pursuant to cl 5(c) of Sch 7 to the UCPR: [211]-[212].

4. In this regard, the primary judge found that the possible adverse effect on Mr Hollingsworth’s psychological condition due to the absence of recording outweighed the considerations raised by the State, relying upon s 58(2)(vi) of the CPA: [219]. Ultimately, the primary judge concluded that he was not persuaded that Mr Hollingsworth’s “right to make a recording” should be “abrogated or limited by the defendant to assuage the stated misgivings of experts engaged by the defendant where those misgivings are based on considerations of personal preference and incompletely informed, if not misconceived apprehensions”: [230]. In his conclusion, the primary judge reiterated his view that all parties and the dictates of justice would be best served by the availability of a reliable sound recording of the assessment of the plaintiff by the State’s appointed psychiatrist.

The principles governing the application before the primary judge

59. It was common ground before this Court that the principles governing the application before the primary judge should be adapted from those set out by McCallum J (as her Honour then was) in Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 (at [4]) (which were ultimately taken from Prescott v Bulldog Tools Limited [1981] 3 All ER 869), that where a plaintiff refuses to submit to a medical examination requested by the defendant, the Court must:

“(a)   assess whether the defendant’s request for medical examination was reasonable in the light of information and advice received from its experts;

(b)   assess whether the plaintiff’s refusal is similarly reasonable;

(c)   if both are reasonable then balance the plaintiff’s right to personal liberty against the defendant’s right to defend itself in the litigation the plaintiff has brought against it; one right not being considered to be more important than the other right; and

(d)   examine objectively the weight of the reasonableness of the defendant’s request as seen by it against the weight of the plaintiff’s objection and balance one against the other to ensure a ‘just determination of the cause as between the parties taking into account their reasonable requirements.’”

60. Thus, the Court must first identify the relevant rights of the parties then ascertain whether the opposing stances of the parties, on the advice of their experts if relevant, are reasonable. If so, the Court must balance the respective rights, with neither “right” being considered more important than the other. The parties’ respective positions must then be balanced to ensure a just determination taking into account the parties’ reasonable requirements.

Determination

Power to make the Orders

61. As set out above, the primary judge purportedly made the Orders pursuant to UCPR, Sch 7, cl 5(c). The State submits that there is nothing in UCPR, Sch 7, cl 5(c) that conferred power to make the Orders. Counsel for Mr Hollingsworth submitted that the primary judge did not err in making the Orders “pursuant to” Sch 7, cl 5(c) on the basis that this was a multi-layered approach having regard to the Court’s power to control its own proceedings and the Court’s power to make an order for medical examination on conditions.

62. For the reasons set out below, the submissions of the State should be accepted.

63. UCPR, Sch 7 relevantly includes the following clauses:

1   Application of code

This code of conduct applies to any expert witness engaged or appointed—

(a)   to provide an expert’s report for use as evidence in proceedings or proposed proceedings, or

(b)   to give opinion evidence in proceedings or proposed proceedings. …

…

5    Duty to comply with the court’s directions

If directed to do so by the court, an expert witness must—

(a)   confer with any other expert witness, and

(b)   provide the court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing, and

(c)   abide in a timely way by any direction of the court.

6   Conferences of experts

Each expert witness must—

(a)   exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the court and in relation to each report thereafter provided, and must not act on any instruction or request to withhold or avoid agreement, and

(b)   endeavour to reach agreement with the other expert witness (or witnesses) on any issue in dispute between them, or failing agreement, endeavour to identify and clarify the basis of disagreement on the issues which are in dispute.

64. UCPR, r 31.23(1) requires an expert witness to comply with the code of conduct set out in Sch 7.

65. UCPR, r 31.24 provides for conferences between expert witnesses. Relevantly, it includes provision for the Court to give directions to expert witnesses in respect of such conferences as follows:

31.24   Conference between expert witnesses

(1)   The court may direct expert witnesses—

(a)   to confer, either generally or in relation to specified matters, and

(b)   to endeavour to reach agreement on any matters in issue, and

(c)    to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

(d)    to base any joint report on specified facts or assumptions of fact,

and may do so at any time, whether before or after the expert witnesses have furnished their experts’ reports.

(2)   The court may direct that a conference be held—

(a)   with or without the attendance of the parties affected or their legal representatives, or

(b)   with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or

(c)   with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue).

(3)   An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect.

(4)   Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.

(5)   An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected.

(6)   Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing.

66. It is uncontroversial that the meaning of these provisions must be determined having regard to the language used, the statutory context, and the purpose or policy of the legislation. The following matters indicate that they did not confer power to make the Orders.

67. First, the statutory context for UCPR, Sch 7, cl 5(c) indicates that its proper subject matter is directions made in the context of facilitating conferral between experts and provision of a joint report. That is the subject matter of UCPR, Sch 7, cll 5(a) and (b), and that statutory context necessarily informs the object and purpose, and proper ambit, of the power to give directions under cl 5(c). That conclusion is further supported by consideration of the terms of Sch 7, cl 6, which concerns conferences of experts. That reinforces the conclusion that the object and purpose of cll 5 and 6 of UCPR, Sch 7 is to facilitate conferral between expert and the provision of joint reports.

68. Second, the terms of cl 5(c) itself indicate that its object and purpose is one of case management: in particular, the need for experts to “abide in a timely way” with a direction from the Court. That language does not lend itself to the conferral of a power which extends to the making of orders that constrain the manner in which an expert medical witness conducts a psychiatric assessment of a party to litigation.

69. Third, it would be surprising, and thus unlikely, for a clause such as cl 5(c) of UCPR, Sch 7 to have been intended to confer a wide-ranging power to make orders binding upon expert medical witnesses constraining how they are to conduct their own assessment for the purpose of the preparation of an expert report. Such a power would be a highly significant conferral of power on the Court to make orders binding expert witnesses as to the manner in which they exercised their own professional judgment. The language and statutory context of UCPR, Sch 7, cl 5(c), set out above, does not support a conclusion that it was intended to confer such power.

70. In these circumstances, the primary judge’s Orders made pursuant to UCPR, Sch 7, cl 5(c) cannot stand. In relying upon UCPR, Sch 7, cl 5(c) as the source of power to make the Orders, the primary judge erred.

71. Notwithstanding the submission of the State set out at [61] above, counsel for both the State and Mr Hollingsworth submitted that the primary judge had power to make the Orders albeit that to some extent they differed as to the proper identification of that power. Given the common position of the parties in that regard, and in light of my conclusion as set out below that this appeal should in any event be allowed and that Mr Hollingsworth should be directed to attend an assessment by a psychiatrist instructed by the State irrespective of whether that psychiatrist permits him to record the assessment, it is unnecessary to reach a concluded view on the question whether the primary judge’s Orders, or equivalent orders, could have been supported by an alternative source of power.

72. For the reasons set out below, however, my preliminary conclusion is that the Court does not have power to make the orders made by the primary judge.

73. Counsel for Mr Hollingsworth contended that the Orders could have been made by imposing a condition upon an order under UCPR, r 23.4(1) that the specified forensic psychiatrist was required to permit Mr Hollingsworth to record the assessment by audio or audio-visual means. The Court’s powers as regards medical examinations are set out in UCPR, Part 23 Division 1. Within Division 1, rr 23.4 and 23.5 provide as follows:

23.4   Order for examination

(1)   The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.

(2)   If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.

23.5   Medical expert for person concerned

The person concerned may have a medical expert of his or her choice attend a medical examination under this Division.

74. UCPR, r 23.4 confers power on the Court to require a person to submit to medical examination, noting that absent statutory authority a person cannot be compelled to submit to a medical examination or test and that at common law the remedy in the event of a refusal to undergo medical examination is a stay (see Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59; (2009) 230 FLR 336 (Kurnell) at [79] (Basten JA, Giles JA agreeing). In its terms, UCPR, r 23.4 thus overrides the principle “that a requirement that a person submit to a medical assessment or test against their will involves an interference with fundamental common law freedoms” (see, for example Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v LPSP [2023] FCAFC 24; (2023) 408 ALR 7 at [71] and [81]–[84], rejecting any distinction between a physical and psychiatric assessment in this regard).

75. As set out in UCPR, r 23.4(2), if a person is ordered to submit to medical examination by a particular expert at a particular time, the person is required to “do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination”. That indicates an intention that, if an order requiring a person to submit to medical examination is made under UCPR, r 23.4(1), the proper conduct of such examination should be a matter for the discretion of the specified medical expert, subject always to the overarching constraint of reasonableness set out in UCPR, r 23.4(2) and subject also to the requirement that that application for an order should not be for a collateral purpose such as testing a party’s credibility (see Rowlands v New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 (Rowlands) at [35] (Hodgson JA, Allsop P agreeing and Tobias JA agreeing in this respect at [61]); Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 at [12] (Basten JA, Meagher JA agreeing). Thus, if an order is made under UCPR, r 23.4 any right to personal liberty of the examinee is overridden to the extent that things requested or questions asked in the course of the medical examination directed are reasonable and the medical examination is not used for a collateral purpose.

76. UCPR, r 23.5 provides that the person concerned is entitled to have a medical expert of his or her choice attend a medical examination under Division 1, thereby conferring a means by which the person concerned can, if they wish, secure assistance for the purposes of such examination and if desired effect some scrutiny of the examination by an expert of their choice.

77. The language of UCPR, r 23.4(1) and (2) strongly indicates that the order for medical examination should be directed to the “person concerned”, being the person whose physical or mental condition is relevant to a matter in question: r 23.1(1) and (2). Whilst r 23.4(1) provides that the Court may make orders for medical examination “including an order that the person concerned submit to a medical examination by a specified medical expert at a specified time and place”, a natural reading of the language after the word “including” is that it describes a particular application of the more general power to make an order that the person concerned be required to submit to medical examination and any consequential “orders directed to and appropriate for the bringing about of the medical examination” (see Rowlands at [31]).

78. That is consistent with the statement of Basten JA (Giles JA agreeing) that (with one exception, not presently relevant) there is no power in the UCPR to require a person not a party to proceedings to undergo a medical examination (see Kurnell at [79]-[80], albeit that there the Court was considering the different question of the identity of the person who could be made subject to an order).

79. It follows that r 23.4(1) does not confer a power to make an order, directed to a medical expert, as to how they are to perform their medical examination, including as to whether they are required to permit that examination to be recorded by audio or audio-visual means.

80. Further, the language of r 23.4(2) supports a conclusion that the power conferred does not extend to the making of an order that seeks to constrain or direct the manner in which the medical expert performs the relevant medical examination. This is because, as set out above, the terms of r 23.4(2) indicate that the conduct of a medical examination ordered under r 23.4(1) is a matter for the expert, subject always to the overarching constraint of reasonableness and the requirement that any requests made or questions asked by the medical expert are “for the purposes of the examination”.

81. The presence of UCPR, r 23.5 also supports this conclusion. Rule 23.5 permits the person concerned to have a medical expert of their choice attend a medical examination under UCPR, r 23.4. In that way, the rules strike a balance between the interests of the person concerned and those of the party seeking an order that that person submit to a medical examination. It would not be consistent with the balance struck in rr 23.4 and 23.5 for the Court also to have power under those rules to direct, in effect, that the medical expert must permit their examination to be recorded.

82. My preliminary conclusion is thus that UCPR, r 23.4 could not have supported the Orders.

83. Senior Counsel for the State and counsel for Mr Hollingsworth both submitted that the primary judge’s orders were authorised by CPA, s 61(2)(c), namely, that “in particular, the court may … give such directions with respect to the conduct of proceedings as [the court] considers appropriate”.

84. Section 61 of the CPA provides, relevantly:

61   Directions as to practice and procedure generally

(1)    The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2)   In particular, the court may, by order, do any one or more of the following—

(a)   it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b)   it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

Re-exercise of discretion

120. In the light of my conclusion on the appeal, it is appropriate for this Court to re-exercise the discretion. Neither party contended that if the appeal were allowed the matter should be remitted to the primary judge.

121. In my judgment, it is appropriate that there be an order for an assessment of Mr Hollingsworth by a psychiatrist of the State’s choice. That order should not be conditioned by any requirement that Mr Hollingsworth should be permitted to record the assessment by audio or audio-visual means.

122. Thus, orders 1 to 3 made by the primary judge should be set aside.

123. Whilst the evidence of Professor Greenberg and Dr Metelerkamp reveals that there were at least two schools of thought as regards the question whether a psychiatrist would consent to a medico-legal assessment being recorded, that did not, of itself, suggest any unreasonableness in Dr Brown’s position, as articulated in her letter of 15 November 2022 and maintained notwithstanding the undertakings offered by Mr Hollingsworth.

124. The reasons advanced by Dr Brown, far from being speculative, represent a careful and considered response to Mr Hollingsworth’s position that he would refuse to attend the assessment unless the assessment could be recorded by audio or audio-visual means. Whilst it is obviously correct that Dr Brown did not have access to Mr Hollingsworth’s affidavit, nor to Professor McFarlane’s report when she prepared her letter, as a consultant and forensic psychiatrist she was sufficiently qualified and experienced to form a properly informed response to Mr Hollingsworth’s position on the basis of her professional experience and understanding.

125. The evidence also establishes that Dr Brown is not alone in the position that she has taken. A similar position was also taken by Dr Apler, Dr Diamond, Dr Roberts, Dr Mason, Dr Barrett and Dr Parmegiani, as set out at [29] above, and was the policy across the board at the MedHealth Group, as set out at [55] above.

126. The guidance from the Royal Australian and New Zealand College of Psychiatrists, set out at [34] above, at [5.2.4] is that psychiatrists are free to decline requests that an assessment be recorded using an audio-visual device. Moreover, as identified by Dr Brown, the concern identified in the article attached to her letter of 15 November 2022 that a recording may be interpreted out of context applies equally to non-covert recordings. That article identified concerns of broad application about the recording process and the potential for a sound recording or transcript to be interpreted out of context. Thus, for example, the article identified the risk of “unplanned and uncontrolled wide dissemination through social media [which] might have devastating and harmful consequences to either party” (at 206) noting that once disseminated, “there can be no guarantee of control, other than a tortuous path of litigation” (at 205).

127. Moreover, whether or not Dr Brown had complied with the expert witness code of conduct is of little moment in this matter. The significance of Dr Brown’s letter is that it sets out her response to Mr Hollingsworth’s expressed intention to record his attendance with Dr Brown and amplifies Dr Brown’s reasons for refusing to agree that such attendance be recorded.

128. The evidence of both Professor Greenberg and Dr Metelerkamp supports Dr Brown’s concern that recording may cause clinical deterioration if Mr Hollingsworth listens to it repeatedly, albeit that Professor Greenberg also identified that, in his opinion, being able to record the assessment was more likely to reduce his distress than increase it and that mitigating steps could be put in place. That concern is not necessarily ameliorated by the Undertakings offered by Mr Hollingsworth, given the real possibility that repeated listening to the recording may be necessary for the purpose of obtaining instructions. That concern must be balanced against Professor Greenberg’s expressed concern that not allowing Mr Hollingsworth to record the attendance could also cause a clinical deterioration and Dr Metelerkamp’s opinion that Mr Hollingsworth will likely be more anxious, less frank and have difficulty establishing rapport if the assessor declines a request to record the assessment.

129. Mr Hollingsworth’s evidence as set out at [40] above, includes that a refusal to allow him to record an assessment by audio or audio-visual means exacerbates his lack of trust in medical assessments and his fear and anxiety, that travel to an assessment is itself a source of stress and anxiety, that anxiety makes it difficult both to get his thoughts in order and to recall what he said and that he will be increasingly anxious before, during and after the assessment if he does not have the option to record it.

130. The evidence of Professor Greenberg and Dr Metelerkamp, set out above at [44] & [49], and the evidence of Professor McFarlane summarised by the primary judge at [88]–[93] would also support a conclusion that if he is permitted to record the assessment by a medico-legal psychiatrist there may be real benefits to Mr Hollingsworth, including in terms of his levels of anxiety during an assessment, the impact of the assessment on his trust in psychiatrists, his ability to remind himself of what occurred during the assessment, and upon his ability to refer to such matters in giving instructions to his solicitors on matters relating to the primary proceedings.

131. Notwithstanding this, it is clear from the matters set out above that the recording of a consultant psychiatrist’s medico-legal assessment may well have significant adverse effects upon that assessment, and potentially may also give rise to risks of harm to Mr Hollingsworth himself. It is also clear that the reasonable judgment of Dr Brown, and the judgment of numerous other psychiatrists, is that they are unwilling to perform a medico-legal assessment in circumstances in which that assessment is recorded by audio or audio-visual means.

132. In all the circumstances, I am satisfied that the position of each of Mr Hollingsworth and the State is reasonable. Having regard to the agreed position of the parties as to the approach that should be taken on an application such as this, in my judgment any requirement that Mr Hollingsworth submit to an assessment by a psychiatrist instructed by the State should not be subject to a condition that Mr Hollingsworth be permitted to record the assessment by audio or audio-visual means.

133. To the extent relevant and raised with them, Mr Hollingsworth’s anxiety and impaired cognitive functioning can be taken into account by the psychiatrist assessing Mr Hollingsworth. A suitably qualified psychiatrist is likely to have the expertise and experience to understand and accommodate the manifestations of Mr Hollingsworth’s psychiatric condition. Also, if supported by evidence before the Court at trial, the Court can take those matters into account in assessing the weight and significance of the expert psychiatrist’s report.

134. In reaching my conclusion, I have had regard to Mr Hollingsworth’s psychiatric condition as set out in Professor McFarlane’s report and to the need to ensure that Mr Hollingsworth’s particular needs are accommodated by the Court. I have also had regard to the fact that Mr Hollingsworth is a First Nations man. However, I do not accept that the orders which I propose would fail appropriately to accommodate Mr Hollingsworth’s psychiatric condition or the fact that he is a First Nation’s man or discriminate against him.

135. In my judgment, audio and audio-visual recordings are not likely to confer material advantages in terms of transparency and rigour if there are disputes as to the basis of the psychiatrist’s opinion or examination of Mr Hollingsworth (cf [224]). The introduction of an audio or audio-visual recording and transcript may ultimately complicate rather than simplify the resolution of such disputes. There may well be disputes as to what was or was not captured by the recording and as to the significance of what was or was not so captured in the context of the assessment as a whole. Thus, whilst there is a possibility that a recording may assist in resolving such disputes, there is equally a possibility that it will lead to greater disputation and will add the complication of a focus upon the recording and transcript rather than upon the psychiatrist’s impression and observations at the assessment itself.

136. I have also had regard to the fact that Mr Hollingsworth may be accompanied to any assessment by a support person, including if he wishes a medical expert of his choice. That person may take notes of the consultation.

137. Whilst my conclusion rests upon the matters set out above, there is also a concern that reliance in civil trials upon potentially lengthy audio or audio-visual recordings of medico-legal assessments, and transcripts of such recordings, may well impede the speedy determination of the real issues between the parties. It may well lead to time-consuming and potentially highly contentious disputes as to the reliability of the recording as a complete record of events, in particular bearing in mind the difficulty in ensuring that all relevant non-verbal information is depicted in such recording. It may add significantly to the volume of material before the Court, and to the time required for the adducing of expert evidence, including by introducing a wholly new enquiry, namely analysis of the extent to which the recording or transcript is in fact representative of the matters before the expert at the assessment. It may lead also to asymmetry where, as here, only the attendance with one party’s expert is to recorded.

Conclusion

138. The following orders should be made:

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:

1. 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

2. 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.

139. BASTEN AJA: I agree with the orders proposed by Stern JA. Further, and subject to the following observations, I agree with her reasoning in support of those orders.

140. As Stern JA notes, the parties were content to proceed in the District Court, and in this Court, on the basis that the judge had powers to make orders of the kind in fact made. The issue to be determined was whether, on the evidence, the orders requiring that a psychiatric assessment only be undertaken in circumstances where the plaintiff was able to record the consultation, was justified.

Need to identify source of power

141. There is a difficulty in identifying, let alone assessing, the relevant discretionary considerations in circumstances where the source of power itself is not identified. For example, as Stern JA explains, one question to be considered is whether in the exercise of discretion, the Court is required to have regard to the circumstance that the power to order a party to undergo a psychiatric (or other medical) examination is an infringement of the party’s right to bodily integrity and to refuse to answer questions. If the power is one which, properly construed, overrides those considerations, a very different balancing exercise will be undertaken as compared with the exercise in which those rights are only to be overridden where the Court considers it just to do so.

142. So much appears from the extract from the judgment in Plaintiff [name withheld] v Stapleton ^[1] in which McCallum J dispensed with compliance with a notice issued pursuant to r 23.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), requiring the plaintiff to attend a medical examination by a psychiatrist. The judge identified the relevant principles (discussed below) as requiring an unfettered balancing exercise. The course which followed may be discerned from the ensuing passage:

“6   On the strength of those remarks, Mr Daly, as I understood the submission, contended that the proper approach in a case where a party does face a claim for damages for personal injury is that an order requiring the plaintiff to submit to medical examination will ordinarily be made. If that was the submission, I would respectfully disagree on the basis that it overstates the principle in favour of the requesting party. Rather, the proper approach is as stated in the summary from Crofts set out above, namely, the Court must assess the reasonableness of each party's position with a view to undertaking a balancing exercise weighing one against the other to ensure a just determination of the cause as between the parties.

7   Of course, as submitted by Mr Gross QC, who appears with Mr Dixon for the plaintiff, a relevant factor in that balancing exercise is to have regard to the nature of the claim. Particularly, to have regard to the Court's reference in Crofts to the need to consider the plaintiff's ‘right to personal liberty’. To compel a person to subject himself or herself to medical examination is necessarily an intrusion on personal liberty. While in many personal injury cases such intrusion will readily be seen as being necessary in the interests of fairness, regard must be had to the kind of issues raised by the claim and the kind of examination requested.”

1. [2017] NSWSC 914.

143. In effect, the judge concluded that there was an unfettered discretion in the court, dependent only upon the outcome of a balancing exercise in which the intrusion on personal liberty loomed large. If the underlying approach was misconceived, the assessment is likely to miscarry.

144. Understandably, in the context of an unreserved judgment, limited consideration was given in Stapleton to the source of the relevant principles. The immediate source was identified as the judgment of BW Ambrose J in Crofts v State of Queensland. ^[2] Crofts involved a claim by a mother and her infant son, Clayton, (then aged seven years) for damages arising from the alleged negligence of treating doctors at Ipswich Hospital (for which the State was liable) which resulted in “very serious and debilitating injuries”. ^[3] The issue to be resolved was whether the serious physical and developmental disabilities suffered by the child were attributable to the management of the mother’s pregnancy or postnatal treatment, or were otherwise attributable to congenital abnormalities or events which took place in the course of a difficult delivery for which the hospital staff were not responsible. ^[4] The procedural question was whether the child should undergo an MRI scan carrying the possibility, or even the likelihood, of resolving that issue. The infant had already undergone two CT scans and his doctors were concerned with the risk associated with the anaesthesia required for carrying out an MRI. The judge noted:^[5]

“The order sought is that a direction be given that an MRI scan be performed upon Clayton and that steps reasonably necessary to permit that scan to be made be taken – including the administration of a general anaesthetic, and that further prosecution of Clayton’s action be stayed pending the taking of that MRI scan.”

2. [2001] QSC 220.

3. Crofts at [6].

4. Crofts at [11].

5. Crofts at [23].

145. In identifying the relevant criteria, the judge referred to three provisions in the Uniform Civil Procedure Rules 1999 (Qld), none of which dealt with referral of a party for a medical examination. Rather, the judge relied upon general law principles derived from an English decision, Prescott v Bulldog Tools Ltd. ^[6] The plaintiff in Prescott claimed damages for industrial deafness; the defendant sought a stay of the proceedings pending a further medical examination of the plaintiff. As Webster J noted, the issue arose “because the defendants want the plaintiff to be examined a fifth time”. ^[7] The examination involved a period of five days in hospital. The principal matter which puzzled Webster J was “whether it is for the plaintiff to satisfy the court that his objection is reasonable, or whether it is for the defendants to satisfy it that it is not”. ^[8]

     6. [1981] 3 All ER 869 (Webster J).

     7. Prescott at 872.

     8. Prescott at 874.

146. Webster J dealt separately with three different sets of tests, the judge concluded with the following observations: ^[9]

“In view of the way in which I have approached the issues it does not seem necessary to me to deal at length with the defendants’ contention that restriction should not be placed by the courts on medical men carrying out investigations for the purpose of litigation, or with the question whether these men should or should not distinguish between such examinations and examinations for the purpose of treatment; but I would just say this, that the court imposes no restrictions on such examinations of any kind. If defendants go to a particular expert and if he says that he will only carry out an examination in a particular way, it is for those defendants to decide whether to request a plaintiff to be examined on those terms, and if the question arises and if the plaintiff objects to those terms, it is for the court to weigh the reasonableness of that objection against the reasonableness of the defendants’ request for that examination. If the reasonableness of the plaintiff’s objection outweighs the reasonableness of the defendants’ request, then it is probable that the examination will not be carried out at all, not because the court imposes its terms on the expert, but because the expert (I am not suggesting improperly for a moment) seeks to impose those terms via the defendants on the plaintiff, who has no medical or contractual relationship with him, and because the plaintiff objects to those terms, ex hypothesi reasonably.”

9. Prescott at 877.

147. Again, there was no reference to any court rule, other than the general power to stay proceedings if the plaintiff does not submit to the examination directed by the court.

148. In their own terms, the principles applied in Prescott and in Crofts reflected the absence of any specific power to order a medical examination. That the same principle was adopted by McCallum J in an ex tempore judgment, but in circumstances where specific powers are available and were invoked, was no doubt a reflection of the way in which counsel had approached the case and the giving of an ex tempore judgment. However, the reasoning in Stapleton as to the criteria to be considered in the exercise of the court’s power should not be relied on by this Court. Rather, it reveals the dangers of relying upon case-law without regard to statutory context. In a very recent decision, Chopra v State of NSW (South Western Sydney Local Health District),^[10] this Court adopted the reasoning of Johnson J in KF by her tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead, ^[11] applying criteria derived from the statutory scheme.

     10. [2023] NSWCA 142 at [39] (Mitchelmore JA, Kirk JA and Simpson AJA agreeing).

     11. [2010] NSWSC 891 at [21].

Absence of power to impose conditions on experts

149. For the reasons given by Stern JA, there was no power conferred by the UCPR, Sch 7, cl 5 in relation to the giving of direction to an expert witness. Where a notice under r 23.2 is not complied with, an order for examination may be made pursuant to r 23.4. But r 23.4 provides no basis for the giving of directions to an expert. The fact that, pursuant to r 23.4(1), the order may specify the identity of the expert, and the time and place at which the examination is to take place, does not permit the court to impose conditions on the manner in which the expert is to carry out the required examination. The fact that r 23.5 permits the plaintiff to have a medical expert of his or her choice attend the medical examination, rather than conferring power on the court to impose that by way of condition militates against the view that the court has powers to say how a medical practitioner can carry out a professional examination, a power denied by Prescott applying the general law.

149. Further, I agree with Stern JA that s 61 of the Civil Procedure Act 2005 (NSW), which confers a power for the purpose of ensuring “the speedy determination of the real issues between the parties” should not be understood as providing a basis for dispensing with the rules of court except where that is proper given the purpose of “the speedy determination of the real issues between the parties”. It does not confer a free-standing power to impose on third parties to the proceedings, particularly potential expert witnesses, an obligation to give effect to their area of expertise only in a particular way. Rather, the section should be approached consistently with the reasoning of Sackville AJA (Young JA agreeing) in McGuirk v University of New South Wales. ^[12]

     12. [2010] NSWCA 104 at [133]-[143].

150. Finally, reliance on the “inherent” jurisdiction of the Court, generally thought to be captured by s 23 of the Supreme Court Act 1970 (NSW), also requires careful attention to the underlying general principles constraining the proper administration of justice. While it has long been accepted that a power to stay or dismiss proceedings for failure of a plaintiff to submit to a medical examination may fall within the inherent jurisdiction,^[13] even that power is generally thought to be contained within UCPR r 23.9.

     13. See Edmeades v Thames Board Mills Ltd [1969] 2 QB 67.

151. As noted by Stern JA,^[14] the Court was pressed with two examples of cases where single judges have imposed constraints on orders for psychiatric examinations. The first, chronologically, JKZ v The Scots College ^[15] involved a condition that the plaintiff not be questioned by the psychiatrist in relation to matters which could involve a risk of retraumatising the plaintiff.

     14. See [96]-[99] above.

     15. [2018] NSWSC 1526.

152. Two factors limit the relevance of that case. First, Garling J applied the principles stated in Stapleton without consideration as to their relevance to the matter before him, no doubt because the parties took no issue with that approach. Secondly, each party had already had the plaintiff examined by consultant psychiatrists: what was sought was a “neuropsychological assessment”, which had been recommended by the defendant’s psychiatrist. The judge was concerned about the possibility of “re-traumatising” the plaintiff if he were required to provide a further oral history of the circumstances of and surrounding the alleged sexual assaults. The judge then concluded that it was “appropriate to limit the neuropsychological examination to a minor extent”. ^[16] He also expressed the view that, although satisfied that the testing was both necessary and appropriate,^[17] it was “open” to him in ordering the examination to impose conditions. ^[18] The source of that power was assumed, rather than explained.

     16. JKZ at [48].

     17. JKZ at [43].

     18. JKZ at [46].

153. The second case, Hill,^[19] also relied upon and applied the principles stated in Stapleton. In an ex tempore judgment, Wright J followed the approach adopted by Garling J in JKZ. ^[20]

     19. See [96] above.

     20. Hill at [39]-[40].

154. It may be observed that no consideration appeared to be given in either case to the likelihood that the plaintiff would be cross-examined to challenge his veracity and reliability, by re-examining his earlier accounts, in the adversarial context of a trial. It must at least be possible that expert neuropsychological testing, undertaken in the presence of a support person, and not for the purpose of testing veracity or reliability, would involve a lesser risk of re-traumatising the plaintiff. Further, if evidence is adduced in cross-examination which was not the subject of the neuropsychological testing, there might be a real risk that the trial would be aborted, or at least delayed to allow such testing to take place, because the defendant had effectively been precluded from obtaining appropriate expert evidence.

155. These considerations do not arise in the present case, but neither JKZ nor Hill is persuasive authority for the proposition that the court has power to impose conditions on experts as to the manner in which they carry out an expert examination, given the inapposite reliance on Stapleton.

156. Having regard to the terms of UCPR r 23.4 and r 23.5, the scope for limiting the circumstances and manner in which a medical examination is performed must be confined. The broad assessment of reasonableness of request and objection is not appropriate. In the present case, there seems to have been no dispute that the defendant was entitled to have the plaintiff examined by a psychiatrist of its choice. To the extent that such an order required the exercise of a discretion under r 23.4, that discretion should have been exercised in favour of the defendant’s application, but without the conditions imposed by the primary judge. Accordingly, the orders proposed by Stern JA should be made.

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Endnotes

Amendments

04 July 2023 - Amendment to findings - heading

Decision last updated: 04 July 2023