State of New South Wales v Hollingsworth

1. [1]

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

2. [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. (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. (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. [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. [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. [5]

   The application for leave was heard concurrently with any appeal.

6. [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. [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

1. [8]

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

   1. (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. (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.

2. [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. (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. (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. (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. (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. (5)

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

   6. (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. (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. (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. (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

1. [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.

2. [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.

3. [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.

4. [13]

   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.

5. [14]

   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)).

6. [15]

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

7. [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.

8. [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.”

9. [18]

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

10. [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.

11. [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”.

12. [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”.

13. [22]

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

14. [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.

15. [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.

16. [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.

17. [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.”

18. [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”.

19. [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”.

20. [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.

21. [30]

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

22. [31]

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

23. [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:

24. [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:

25. [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:

26. [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).

27. [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.

28. [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.

29. [38]

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

30. [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.

31. [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]:

32. [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.

33. [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.

34. [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].

35. [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:

36. [45]

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

37. [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”.

38. [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”.

39. [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”.

40. [49]

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

41. [50]

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

42. [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.

43. [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”.

44. [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’.”

45. [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”.

46. [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.

47. [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”.

48. [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

1. [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. (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. (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. (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. (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. (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. (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. (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. (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].

   9. (9)

      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].

   10. (10)

       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].

   11. (11)

       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].

   12. (12)

       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

1. [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:

2. [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

1. [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.

2. [62]

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

3. [63]

   UCPR, Sch 7 relevantly includes the following clauses:

4. [64]

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

5. [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:

6. [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.

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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:

14. [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).

15. [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.

16. [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.

17. [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]).

18. [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).

19. [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.

20. [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”.

21. [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.

22. [82]

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

23. [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”.

24. [84]

    Section 61 of the CPA provides, relevantly:

25. [85]

    As is clear from the language of s 61(2), that power is a sub-species of the more general power conferred under s 61(1) (McGuirk v University of New South Wales [2010] NSWCA 104 (McGuirk) at [147] (Sackville AJA, Young JA agreeing). It necessarily follows that directions given under s 61(2)(c) must themselves be directions that the Court thinks fit “for the speedy determination of the real issues between the parties”.

26. [86]

    As set out by Gaudron J in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205; [1992] HCA 28, such a grant of power to a court should not be construed as subject to a limitation not appearing in the words of the grant.

27. [87]

    The legislative history of s 61 was examined by Sackville AJA in McGuirk at [133]-[139]. Having regard to that history, his Honour observed that “it must be remembered that s 61(1) of the CP Act, like its predecessors, is not an open-ended power to make any directions the court considers appropriate. Otherwise the concluding words of s 61(1) would not have any meaning” (at [139]). Further, that in making any order under s 61(1) the Court must seek to act in accordance with the dictates of justice (s 58(1)), and in determining what are the dictates of justice in a particular case, also to the overriding purpose (s 56(1)) (at [141]). As set out by Sackville AJA, however, careful attention must be paid to the limitations inherent in the wording of s 61 (at [143]). The Court must in every case consider whether the particular direction or directions should be given “for the speedy determination of the real issues” (at [143]). If no such conclusion is or can be reached, the proposed directions are not authorised by s 61(1) (at [144]).

28. [88]

    Whilst, for the reasons set out above, it is unnecessary to reach a concluded view, in my judgment there are reasons to doubt that the primary judge’s orders could be authorised under ss 61(1) and 61(2)(c) of the CPA. There is no link apparent from the evidence, nor was any identified by the primary judge, between the Orders made and the speedy determination of the real issues between the parties. Whilst the primary judge did find that an audio-recording would promote “transparency and rigour” (at [224]) and would limit factual disputes which may cause “needless added distress” to Mr Hollingsworth (at [234]), there is no finding, and I have discerned no proper basis for a finding, that an order that an examination be recorded would promote the speedy determination of the real issues between the parties.

29. [89]

    There remains the possibility that the Orders of the primary judge could have been made in the exercise of the Court’s inherent jurisdiction to control and supervise its proceedings (see for example Hamilton v Oades (1998) 166 CLR 486 at 502 (Deane and Gaudron JJ); [1998] HCA 21). It is well established that the Court’s inherent jurisdiction is not displaced by rules of court, provided the exercise of the inherent jurisdiction does not contravene the requirements of the rules of court (see McGuirk at [187]).

30. [90]

    The juridical basis of the inherent jurisdiction of a superior court has been said to be that:

31. [91]

    As held by Sackville AJA (Young AJA agreeing) in McGuirk at [187], “it is not necessary to extend the inherent jurisdiction of the court beyond its established parameters where the existing powers of the court are adequate to ensure that the interests of justice are served”.

32. [92]

    In my judgment there are real doubts as to whether the primary judge’s Orders could have been supported by the Court’s inherent jurisdiction. The Orders made do not, in my judgment, fall within the Court’s power to control and supervise its own proceedings. Moreover, UCPR, rr 23.4 and 23.5 are such that the interests of justice do not require the Court to extend its inherent jurisdiction to permit orders to be made directing experts as to how they are to conduct their medico-legal examinations.

33. [93]

    However, as set out above, given the parties’ common position that the Orders made by the primary judge were authorised under s 61(1) of the CPA and that the Court has not heard full argument as to such matters, the views expressed above are preliminary only.

34. [94]

    The State submits that, albeit that at [114] the primary judge described as “uncontroversial” the proposition that the State was “entitled to the facilitation of the just, quick and cheap resolution of the real issues in the proceedings by having the plaintiff assessed by its expert of choice”, in the primary judge’s dispositive reasoning his Honour failed to take that right into account. The State relies upon Starr v National Coal Board at 249 (Scarman LJ) (see also at 254 (Geoffrey Lane LJ) and at 255 (Cairns LJ) to similar effect) in support of this submission. Further, the State submits that that principle was of particular significance in the present appeal, given that Professor McFarlane was highly qualified and the issue of medical causation “looms as a significant issue in the case”.

35. [95]

    The State also submitted that the primary judge failed to take into account the prejudice to the State having regard to the evidence establishing the difficulty which the State had had in finding a psychiatrist who would agree to having their assessment of Mr Hollingsworth recorded by audio or audio-visual means.

36. [96]

    Mr Hollingsworth, in response, submits that the primary judge did take this principle into account, but correctly concluded that the principle was not unqualified and that the State’s right was appropriately qualified in the circumstances of the present case. Mr Hollingsworth relies, in this regard, upon the decision of Wright J in Hill v Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security [2021] NSWSC 1425 (Hill) and Garling J in JKZ v The Scots College [2018] NSWSC 1526 (JKZ).

37. [97]

    JKZ concerned a refusal by a plaintiff in a claim arising from historical sexual assault to consent to an attendance on a neuropsychologist for the purpose of a neuropsychological and personal assessment. The Court, having concluded that the defendant’s request and the plaintiff’s refusal were both reasonable, undertook a balancing exercise and ordered that the plaintiff submit to a neuropsychological assessment, but on the condition that the plaintiff not be asked about certain matters given that that would involve a real risk of re-traumatising the plaintiff. The judgment does not suggest that there was any evidence before the Court which suggested that the neuropsychologist objected to assessing the plaintiff subject to such condition or indeed proposed to ask questions of the character that were the subject of the condition ordered by the primary judge.

38. [98]

    In Hill, the plaintiff in a personal injury claim objected to undergoing neuropsychological assessment by the defendant's nominated expert unless she was permitted to have her nominated support person present whilst the psychometric testing was performed and objected to other aspects of the assessment. The Court, having referred to JKZ, directed that the plaintiff submit to the neuropsychological assessment, again on the condition that certain questions were not asked, and directed pursuant to UCPR, r 23.5 that the plaintiff be permitted to have an appropriately qualified psychologist present during the testing and that the testing take place in two phases. The judgment does not suggest that there was any opposition to those conditions on the part of the defendant’s nominated expert, given that the basis of her opposition was to the presence of the plaintiff’s nominated support person who was not a qualified person bound by the Australian Psychological Society Code of Ethics.

39. [99]

    Neither of these cases suggests any qualification upon the State’s right to instruct a psychiatrist of its choice for the purpose of defending Mr Hollingsworth’s claim. Whilst, as Mr Hollingsworth submits, in both cases this Court placed conditions upon directions made under UCPR, r 23.4, in neither case does the judgment suggest that such conditions would impact upon the defendant’s ability to instruct its expert of choice.

40. [100]

    In my judgment, having regard to the dispositive reasoning of the primary judge, his Honour erred as submitted by the State. The key reasoning of the primary judge, at [198] identifies the relevant right of the defendant as being “to require the plaintiff to submit to a medico-legal psychiatric assessment for the purpose of obtaining an evidentiary opinion to assist in defending the plaintiff’s claim”. Further, the primary judge identified at [201] that the “the only likely consequential burden on the defendant appears to be the defendant’s solicitor’s task of finding a psychiatrist who is prepared to comply with a direction to permit an audio recording of the interview with the plaintiff”. At [202] the primary judge said that “that burden does not give rise to unreasonable or material prejudice for the defendant in this case. It is not unduly burdensome or uncommon for parties to litigation encountering inconvenience or difficulty in finding a suitable expert”.

41. [101]

    In so reasoning, the primary judge failed to take into account the important right of the State to have Mr Hollingsworth examined by a psychiatrist of the State’s choice. The primary judge’s discretion thus miscarried in a way that materially affected the result. Leave should be granted, and the appeal allowed, on this ground.

42. [102]

    Given my conclusion as set out above, it is unnecessary to decide whether the primary judge failed to take into account the evidence as to the number of psychiatrists who had declined to consent to an assessment of Mr Hollingsworth being recorded by audio or audio-visual means.

43. [103]

    The State submits that, at [148] and in his Honour’s dispositive reasoning at [230], the primary judge took into account an irrelevant consideration by giving weight in his assessment to what the primary judge described as Mr Hollingsworth’s “right to make a recording”. The State submits that there is no such unfettered right, and points by way of example to s 7 of the Surveillance Devices Act.

44. [104]

    Mr Hollingsworth submits that, absent an order to the contrary he did have a right to record the assessment or not to participate if recording was not permitted. Further, he submits that s 7 of the Surveillance Devices Act would not apply to his medico-legal assessment as that interaction was not a “private conversation” within the meaning of s 4 of that Act. In oral submissions, counsel for Mr Hollingsworth contended that the right to record was founded upon Mr Hollingsworth’s right to equality before the law, the right to liberty of the person and bodily autonomy, the right under UCPR, r 23.5 to have a doctor attend the assessment (on the basis that recording was a more efficient way of securing the same protection), the freedom within society to do that which is not prohibited, and the right to have reasonable adjustments to medical services under the DDA.

45. [105]

    As submitted by the State, in a key passage in the primary judge’s reasoning, when expressing his Honour’s conclusion under the heading “Balancing the respective rights”, at [230], the primary judge weighed in the balance “the plaintiff’s right to make a recording” which his Honour concluded should not be “abrogated or limited in order to assuage the stated misgivings of experts engaged by the defendant”. In relying upon Mr Hollingsworth having a “right to record” his assessment by a forensic psychiatrist, the primary judge erred. Mr Hollingsworth did not have a right to record such assessment, and if Mr Hollingsworth had insisted on recording the assessment the psychiatrist could quite properly have terminated the assessment, as on the evidence, Dr Apler did when that situation arose.

46. [106]

    In my judgment, the primary judge erred in relying upon the fact that Mr Hollingsworth may not have been acting unlawfully in recording such an assessment (at [110]) to support a conclusion that Mr Hollingsworth had a “right” to do so (at [230]).

47. [107]

    Mr Hollingsworth’s submission that such a right flowed from the matters set out at [104] above should be rejected. No such “right” flows from the principle of equality before the law nor the freedom within society to do that which is not prohibited. Nor would the right to bodily integrity confer a right to record a medico-legal assessment. Further, for the reasons set out below, the DDA does not establish any right such as was relied upon by the primary judge.

48. [108]

    Further, in an analogous context, Malcolm CJ (with whom Pidgeon J agreed) in Ryan v Regent Enterprises (1991) 3 WAR 552 at 560 described a suggestion that a person who is required to submit to a medical examination (in that case under s 65 of the Workers Compensation and Assistance Act 1981 (WA)) had a “common law right to impose conditions on the examination” as “misconceived”.

49. [109]

    In these circumstances, the primary judge erred in taking into account a “right [in Mr Hollingsworth] to make a recording”. In this regard also the primary judge’s discretion thus miscarried in a way that materially affected the result. I would allow the appeal on this ground also.

50. [110]

    This conclusion does not rest in any way upon the potential application of s 7 of the Surveillance Devices Act. There is no suggestion in this matter that Mr Hollingsworth’s attendance upon a medico-legal expert would be recorded without that expert’s consent. In these circumstances, recourse to the Surveillance Devices Act does not have any bearing on the issue of whether Mr Hollingsworth had a right to record such attendance in this case.

51. [111]

    The State contends that the primary judge erred in finding that a refusal to allow Mr Hollingsworth to record a medico-legal assessment by a forensic psychiatrist instructed by the State would be unlawful discrimination both by the State and by the psychiatrist, and in taking this into account in the exercise of his discretion. The State contends that the primary judge misunderstood the application of the DDA. It further submits that there would be no indirect discrimination in refusing to permit Mr Hollingsworth to record any assessment by a psychiatrist as the State had met the burden of proving that any such requirement was reasonable having regard to the circumstances of the case (see s 6(3) and (4) of the DDA).

52. [112]

    Mr Hollingsworth submits that the primary judge did not make any finding that the State’s conduct would be unlawfully discriminatory but rather found that a requirement that Mr Hollingsworth attend an assessment without the ability to record it would meet the statutory test of indirect discrimination, and that that definition was a useful tool in considering the reasonableness of the State’s position. As to the primary judge’s finding that, absent a court order, it would be unlawfully discriminatory for a psychiatrist to refuse to allow recording of the assessment, Mr Hollingsworth submits that this was relevant to the primary judge’s analysis in examining the practical content of the Court’s obligations to provide equality before the law, and in considering whether a requirement to permit recording was “within [the doctor’s] statutory duty to avoid unlawful discrimination”.

53. [113]

    There can be no doubt that the primary judge had regard to the DDA in considering the dictates of justice in this matter. His Honour said as much at [175]. Further, his Honour concluded at [178] that it would be discriminatory for the State, and for any medical practitioner appointed by the State, to refuse to make provision for the audio-recording sought by Mr Hollingsworth. His Honour also found at [179] that under s 24 of the DDA it would be unlawful for a medical practitioner to discriminate against a person on the grounds of his disability.

54. [114]

    In the section of the judgment headed Balancing the respective rights, the primary judge at [209] inferentially referred back to this analysis when having regard, in the balance, to “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”.

55. [115]

    In these circumstances, the primary judge had regard to his findings as to the application of the DDA in a material way in the exercise of his discretion.

56. [116]

    In my judgment, in so doing, his Honour erred. The provisions of the DDA do not themselves arise as factors to be weighed in the balance on an exercise of discretion such as that which was undertaken by the primary judge. Rather, as set out by the High Court in Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73, dealing with the analogous regime under the Racial Discrimination Act 1975 (Cth), the scheme of the Act is such that, save where specific offences are created, it is in provisions equivalent to Part III of the DDA that “there are to be found the procedures and remedies applicable to cases of unlawful discrimination” (at [25]). Part III of the Act “was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention of [in that case s 9 of the Racial Discrimination Act] might obtain a remedy” (at [26]). The only right that the Act creates, “is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right” (at [32]).

57. [117]

    On this basis also, I would allow the appeal.

58. [118]

    In the light of my conclusions as set out above, it is unnecessary to address the remaining matters relied upon by the State in support of its proposed grounds of appeal.

59. [119]

    As is clear from the analysis set out below as to the re-exercise of discretion, however, in my judgment the primary judge erred in characterising the reasons given by Dr Brown for refusing to agree to having her assessment of Mr Hollingsworth recorded as lacking “the reasoned rigour required by UCPR r 31.27(1)(c) and UCPR, Sch 7, cl 5(c)” (at [189]) and as “speculative concerns that have no foundation in the evidence” (at [190]). It follows that his Honour erred in discounting Dr Brown’s concerns in “determining the respective rights and entitlements of the parties in the present dispute” (at [190]).

Re-exercise of discretion

1. [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.

2. [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.

3. [122]

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

4. [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.

5. [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.

6. [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.

7. [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).

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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.

14. [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.

15. [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.

16. [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.

17. [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.

18. [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

1. [138]

   The following orders should be made:

   1. (1)

      Leave to appeal granted.

   2. (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. (3)

      The appeal is allowed.

   4. (4)

      Orders 1 to 4 made by the primary judge should be set aside and instead there should be orders that:

   5. (5)

      Mr Hollingsworth should pay the State’s costs of the application for leave to appeal and the appeal.

2. [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.

3. [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.

4. [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.

5. [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. [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.

7. [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]

8. [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]

9. [146]

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

10. [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.

11. [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.

12. [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.

13. [150]

    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]

14. [151]

    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.

15. [152]

    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.

16. [153]

    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.

17. [154]

    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]

18. [155]

    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.

19. [156]

    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.

20. [157]

    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.