State of New South Wales v Hollingsworth

The Court of Appeal of New South Wales considered an appeal by the State against orders made by a primary judge concerning a medical examination of Mr Hollingsworth. The dispute centred on the conditions under which Mr Hollingsworth was to submit to an assessment by a psychiatrist instructed by the State.

The legal issues before the Court of Appeal included whether the primary judge erred in relying on clause 5(c) of Schedule 7 of the *Uniform Civil Procedure Rules 2005* (NSW) to direct expert witnesses on how to conduct assessments, and whether the primary judge took into account irrelevant considerations and failed to take into account relevant ones. The court also considered whether the orders made by the primary judge were within the court's power, referencing rule 23.4 of the *Uniform Civil Procedure Rules 2005* (NSW), section 61 of the *Civil Procedure Act 2005* (NSW), and the court's inherent jurisdiction.

The Court of Appeal reasoned that clause 5(c) of Schedule 7 of the *Uniform Civil Procedure Rules 2005* (NSW) does not confer power on the court to direct expert witnesses regarding the methodology of their assessments. The court found that the primary judge had erred in this regard. The Court of Appeal re-exercised its discretion under rule 23.4 of the *Uniform Civil Procedure Rules 2005* (NSW).

The appeal was allowed. The orders made by the primary judge were set aside. Instead, the Court of Appeal ordered that Mr Hollingsworth submit to an assessment by a psychiatrist instructed by the State, irrespective of whether that psychiatrist permitted the assessment to be recorded. Mr Hollingsworth was ordered to pay the State's costs of the motion and the application for leave to appeal and the appeal.