Hastwell v Kott Gunning [2021] FCAFC 70

Federal Court of Australia

Hastwell v Kott Gunning [2021] FCAFC 70 Appeal from: Application for leave to appeal: Hastwell v Kott Gunning (No 5) [2020] FCA 621

File number: WAD 126 of 2020

Judgment of: MCKERRACHER, KERR AND CHARLESWORTH JJ

Date of judgment: 13 May 2021

Catchwords: HUMAN RIGHTS – claim of sexual discrimination and disability discrimination by employer – where applicant claims loss and damage caused by exacerbation of anxiety and depression – where applicant refuses to undergo a psychiatric examination to allow the respondent to adduce expert evidence – where primary judge ordered a permanent stay of proceedings consequent upon the applicant's refusal – whether the order for a permanent stay was a just determination of the proceedings HUMAN RIGHTS – appeal from orders for a permanent stay of proceedings – whether orders are interlocutory in nature – whether leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – whether a permanent stay consequent upon a refusal to be medically examined is an interlocutory judgment that affects the liberty of an individual – consideration of the principles in Talacko v Talacko (2010) 183 FCR 297 EVIDENCE – admission into evidence of extracts of a psychiatric report contained in a pleading filed in separate proceedings brought by the applicant in a different court – where the respondent obtained the pleading by making an access request to the other court – where the respondent adduced extracts of the psychiatric report to demonstrate a proper basis for seeking its own medical examination of the applicant by its nominated expert – whether the primary judge misconstrued various provisions of the Evidence Act 1995 (Cth) in allowing the extracts to be adduced for this limited purpose only