Hollingsworth v State of NSW [2023] NSWDC 46

District Court New South Wales

Medium Neutral Citation: Hollingsworth v State of NSW [2023] NSWDC 46 Hearing dates: 23 & 24 February 2023 Date of orders: 6 March 2023 Decision date: 06 March 2023 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. The defendant's notice of motion filed on 17 October 2022 pursuant to UCPR r 23.4 seeking to place non-recording conditions on the plaintiff's attendance at an examination by a forensic psychiatrist appointed by the defendant, is dismissed; 2. Pursuant to UCPR Sch 7, cl 5(c), any expert forensic psychiatrist appointed by the defendant to examine the plaintiff is directed to permit the plaintiff to make a sound recording of the entire assessment session on the proviso that the plaintiff provide that expert with a full copy of such a recording if requested to do so; 3. Pursuant to UCPR Sch 7, cl 5(c), 24 hours before an appointed examination, any forensic psychiatrist appointed by the defendant to examine the plaintiff, is directed to provide to the defendant's solicitor, copied to the plaintiff's solicitor, a written undertaking to abide by the direction the subject of Order (2); 4. The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless a party can show an entitlement to some other order for costs; 5. I confirm the terms of the mediation order made on 24 February 2023 pursuant to s 26 of the Civil Procedure Act 2005 (NSW) for the mediation to be concluded by 31 May 2023, irrespective of whether the defendant has by that date had a forensic psychiatrist examine the plaintiff; 6. By 13 March 2023, the solicitors for the respective parties are to each serve on their own clients a notice in the form of a Smyth order in compliance with UCPR r 42.32; 7. The exhibits may be returned; 8. Liberty to apply on 7 days' notice if further or other orders are required. Catchwords: CIVIL PROCEDURE – medical examination of plaintiff by an expert forensic psychiatrist nominated by defendant pursuant to UCPR r 23.4; whether defendant has justified placing claimed restrictions on plaintiff's lawful right to audio record the proposed interview; whether plaintiff should be required to attend a psychiatric examination appointed by defendant where the expert retained by defendant has indicated a refusal to abide by a relevant direction to be made by the Court pursuant to the Expert Code of Conduct comprising UCPR Sch 7, cl 5(c) permitting the making of an audio recording of the proposed expert examination Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 4 Civil Procedure Act 2005 (NSW), s 56, s 58 Disability Discrimination Act 1992 (Cwth), s 5(1), s 6(1), s 24 Equality before the law: Bench Book Judicial Commission of NSW 2022, sections 1.1, 1.3 and 5 Trauma-informed Courts Guidance for trauma-informed judicial practices: Judicial Commission of NSW 2022 Uniform Civil Procedure Rules 2005 (NSW), r 23.2, r 23.4, r 23.5, r 31.23, r 31.27, r 42.32, Sch 7, cl 5(c) Cases Cited: Angliss v Urquhart [2001] NSWCA 441 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Commissioner of Police, NSW Police Force v Robinson [2022] NSWCATAP 121 Crofts v The State of Qld [2001] QSC 220 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Harman v Secretary of State for the Home Department [1983] 1 AC 208 House v The King (1936) 55 CLR 499; [1936] HCA 40 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Prescott v Bulldog Tools Limited [1981] 3 AllER 869 Texts Cited: Journal of the Royal Society of Medicine, 2003 The Royal Australian & New Zealand College of Psychiatrists : Professional Practice Guideline 11 : Developing reports and conducting independent medical examinations in medico-legal settings, November 2020 Kessels, RP; Patient's memory for medical information : Journal of the Royal Society for Medicine, May 2003 Category: Procedural rulings Parties: Michael Hollingsworth (Plaintiff) State of NSW (Defendant) Representation: Counsel: Ms V Heath (Plaintiff) Ms J Chapman (Defendant)