Walsh v Aherns Holdings Pty Ltd

[2001] WADC 93

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   WALSH -v- AHERNS HOLDINGS PTY LTD

[2001] WADC 93

CORAM:   VIOL DCJ

HEARD:   28 MARCH 2001

DELIVERED          :   26 APRIL 2001

FILE NO/S:   CIV 3911 of 1999

BETWEEN:   JOHN BRIAN WALSH

Appellant (Plaintiff)

AND

AHERNS HOLDINGS PTY LTD (ACN 008 666 831)
Respondent (Defendant)

Catchwords:

Appeal - Practice and procedure - Whether an examination by a neuro psychologist can be ordered under O 28 r 1 of the Rules of the Supreme Court 1971 - Inherent powers of the District Court

Legislation:

Rules of the Supreme Court 1971

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff)      :     Mr I K Bellamy

Respondent (Defendant) :     Mr C C Rimmer

Solicitors:

Appellant (Plaintiff)      :     Solomon Brothers

Respondent (Defendant) :     Jackson McDonald

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

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

Pelechowski v Registrar, Court of Appeal (1999) 162 ALR 336

Perpetual Trustees (WA) Ltd v Naso [1999] WASCA 80

Williams & Ors v Grainger & Anor [1999] WADC 133

Case(s) also cited:

Byrnes v The Queen 199 CLR 1

Starr v National Coal Board [1971] 1 All ER 243

1. VIOL DCJ:  On 2 January 2001, Deputy Registrar Harman made an order (together with an order for costs) in favour of the respondent (defendant) that the appellant (plaintiff) do submit himself for neuro psychological assessment or examination by Mr Michael Hunt, neuro psychologist, on Friday, 9 March 2001.

2. The appellant has appealed against this order.  The appeal is based on two grounds:

   1.That as Mr Hunt is not a "medical practitioner" as defined by the Medical Act 1984 s 3, the learned Deputy Registrar had no jurisdiction to make the order under O 28 r 1 of the Rules of the Supreme Court 1971 ("the Rules").

   2.That the District Court has no inherent jurisdiction to make an order of the type sought, even if such an order were to be made as part of an order staying further proceedings until the examination had taken place.

3. Order 28 r 1(1) is in the following terms:

   "1.(1)      (a)      Where it becomes material in any cause or matter before the Court to consider the question of the physical or mental condition of any party, any opposing party may serve on such firstmentioned party a notice to submit himself for examination at a specified time and place by a medical practitioner provided and paid by the party requiring the examination.  At any such examination a medical adviser chosen by the party to be examined shall be entitled to be present if the party so desires.

   (b)Where the party objects to complying with the notice, or in default of agreement as to the time and place of the examination, or if any matter shall arise in relation to such examination, either party may apply to the Court for an order as to whether or not the objecting party shall submit himself for examination, or as to when and where such examination may be made, or as to any other matters to facilitate the examination.

   (c)If the Court is of the opinion that either party has been unreasonable in the matter it may order that party to pay the costs of the application and any other costs unnecessarily incurred in consequence."

4. As to the first basis of the appeal, a literal interpretation of the rule would appear to favour the contention of the appellant.  There are, however, a number of reasons why, in my view, a more liberal interpretation should be given to the rule, this being the submission, of course, of the respondent.  These reasons are:

   1."Medical practitioner" is not defined in the Rules ie. there is no express limitation of the meaning of medical practitioner.

   2.The essence of O 28 r 1 is to require a party, in appropriate circumstances, to undergo examination to enable each party to be properly advised and to be able to present its case fully - a more liberal interpretation of the rule and the words, in particular "medical practitioner", would give effect to this intention.

   3.A wider and more liberal interpretation of the word "examination" in the rule (other than an examination by a doctor) was favoured by the Supreme Court in Perpetual Trustees (WA) Ltd v Naso [1999] WASCA 80. This decision is applicable to the present case.

   4.The use of the expression "a medical adviser" suggests that the intention of the rule is not the limit "medical practitioner" to a registered doctor of medicine.

5. This being so, I do not accept the interpretation of "medical practitioner" suggested by the appellant and I concur (with respect) with the decision of the learned Deputy Registrar in this respect.

6. The interpretation favoured by me is supported by the circumstances of this matter.  The appellant relies, inter alia, on the suffering of a cognitive injury and has undergone two neuro psychological assessments and intends, it seems, to rely on the evidence of these neuro psychologists as well as a psychiatrist who will be basing his opinion on the assessments of the neuro psychologists.  The respondent in these circumstances should be able to test these assessments and opinions by its own medical advisers including a neuro psychologist.  The plaintiff's neuro psychological condition is obviously very relevant to the matter generally.

7. Turning to the second matter relied on by the appellant, the powers of the District Court to make orders generally of the type were considered by me in Williams & Ors v Grainger & Anor [1999] WADC 133. In that case, at page 8, after considering the various relevant authorities (including Pelechowski v Registrar, Court of Appeal (1999) 162 ALR 336 at 347), I was of the view that in the exercise of its statutory powers, the District Court is able to call upon and exercise such powers as are necessary for the proper carrying out of its functions, provided that the existence of such powers are subject to the 'touchstone of reasonableness'," the latter phrase being that suggested as the appropriate text by the authorities.

8. I am of the view that the type of order sought by the respondent in this case can be considered to be reasonably necessary and can be characterised as having the "touchstone of reasonableness" in the circumstances.  Bearing in mind the issues arising in the pleadings and to be determined at trial, the probable use of neuro psychological assessments and psychiatrists' opinions by the appellant at trial, and the obvious (and proper) necessity that there be a "just determination of the case" (see Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 71 per Widgeri LJ at 72 and 73), the ability of the respondent to have the appellant examined and assessed by its own expert witnesses is quite appropriate.

9. For these reasons, I agree, with respect, with the decision of the learned Deputy Registrar and find no basis upon which the appeal should succeed - the appeal therefore fails.