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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WADC 93
Decision Date: 26 APRIL 2001

CaseChat Overview and Summary

The parties involved in this case were Walsh and Aherns Holdings Pty Ltd, with the dispute centering around the issue of whether a neuro psychologist's examination could be ordered under the Rules of the Supreme Court 1971. Specifically, the matter was before the Court of Appeal, which was tasked with determining the inherent powers of the District Court in this regard. The court was asked to decide if the District Court had the authority to order such an examination under O 28 r 1 of the Rules of the Supreme Court 1971.

The legal issues at hand involved interpreting the scope of O 28 r 1, which pertains to the inherent powers of the court. The central question was whether the District Court could order a neuro psychologist's examination as part of the discovery process. This required the court to examine the existing case law and legal principles to determine the appropriate scope of the District Court's inherent powers.

The Court of Appeal found that the District Court did not have the inherent power to order a neuro psychologist's examination under O 28 r 1 of the Rules of the Supreme Court 1971. The court based its decision on existing case law, which established that the inherent power of the court is limited to ensuring a fair trial and preventing abuse of the court process. The court held that such examinations were not within the scope of the inherent power of the District Court. The court also noted that the parties could seek such examinations through other means, such as a subpoena or a court order, if necessary.

The final orders of the Court of Appeal were to affirm the decision of the District Court, which had previously refused to order the neuro psychologist's examination. The Court of Appeal's decision clarified the scope of the inherent powers of the District Court and provided guidance for future cases involving similar issues.

Orders